21

- 1988 Estevez v. Berkeley College
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York , on the 10 th d a y of November , two thousand twenty

- two

. PRESENT: JOHN M. WALKER, JR. , RICHARD J

. SULLIVAN , Circuit Judges , MARY KAY VYSKOCIL , District Judge

. *

______________________________________________________________________________________ J IMARZARETTE E STEVEZ , D EANNA M ANCINI , D IANE M EKULI , Plaintiff s

- Appellants ,

v. No. 2 1

- 1988
B ERKELEY C OLLEGE , J OEL M ARTINEZ , G RETCHEN O RSINI , D AVID B ERTONE , Defendant s

- Appell ees

.

______________________________________________________________________________________

* Judge Mary Kay Vyskocil, District Judge for the Southern District of New York, sitting by designation.2 For Plaintiff s - Appellant s : S TEPHEN B ERGSTEIN , Bergstein & Ullrich, New Paltz, NY (Daniela Nanau, Law Office of Daniela Nanau, P.C., Glendale, NY, on the brief )

.
For Defendant s - Appellee s :

For Amicus Curiae LatinoJustice PRLDEF, in support of Plaintiffs

Appellees : B RAN C. N OONAN , Ford Harrison LLP, N ew York , NY

. Rosalyn Richter, Arnold & Porter Kaye Scholer LLP, New York, NY; Karen Otto, Arnold & Porter Kaye Scholer LLP, Washington, DC ; Francisca D. Fajana, Nathalia A. Varela, LatinoJustice PRLDEF, New York, NY

.

Appeal from a judgment of the United States District Court for the Southern 1

District of New York ( Cathy Seibel , J udge )

. 2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 3
ADJUDGED, AND DECR EED that the judgment of the district court is 4

AFFIRME D

. 5

Plaintiff s - Appellant s Jimarzarette Estevez, Deanna Mancini, and Diane 6

Mekuli ( collectively, the “ Employees ”) a ppeal from the district court’s grant of 7 summary judgm ent in favor of Defendant

- Appellee Berkeley College on the 8 Employees’ claims for gender

- based discrimination under Title VII of the Civil 93 Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the New York State Human Rights 1
Law ("NYSHRL”), N.Y. Exec

. Law § 290 et seq. , and in favor of Defendants

2 Appellees Joe l Martinez, Gretchen Orsini, and David Bertone on the Employees’ 3

derivative NYSHRL aiding and abetting claims. Specifically, the Employees 4 challenge the district court’s determination that they failed to present sufficient 5

evidence to establish their unde rlying Title VII and NYSHRL hostile

6

work

- environment and retaliation claims against Berkeley College

. 1 We review 7 the grant of summary judgment de novo, applying the same standards as the 8

district court. Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013)

. 9 We assume the parties’ familiarity with the underlying facts, procedural history, 10 and issues on appeal. 11

I. Hostile Work Environment 12 With respect to the Employees ’ hostile

- work

- environment claim s , w e 13

conclude that the district court properly granted summary judgment in favor of 14 Berkeley College , f or substantially the same reasons stated in th at court’s thorough 15

1 The parties agree that, as applicable to this case, the standards for evaluating hostile

- work

environment and retaliation claims against Berkeley College are identical under Title VII and NYSHRL

. See Vasquez v. Empress Ambulance Serv., Inc. , 835 F.3d 267, 271 n.3 (2d Cir. 2016); Rojas v. Roman Cath. Diocese of Rochester , 660 F.3d 98, 107 n.10 (2d Cir. 2011)

.4 and well

- reasoned o pinion and o rder

. For hostile

- work

- environment cl aims, a 1 plaintiff must show (in relevant part) that a “reasonable person in the plaintiff ’ s 2 position, considering all the circumstances including the social context in which 3 particular behavior occurs and is experienced by its target,” w ould find the alleg ed 4 conduct sufficiently severe or pervasive as to alter the conditions of the p laintiff ’ s 5 employment and create an abusive working environment

. Redd v. N.Y. Div. of 6

Parole , 678 F.3d 166, 176 (2d Cir. 2012 ) (internal quotation marks and alterations 7 omitted) ; see also Legg v. Ulster County , 979 F.3d 101, 114 (2d Cir. 2020)

. Even if we 8

assume d for the sake of argument that the conduct a reasonable person might 9 consider severe or pervasive can evolve over time , as amicus curiae suggests , see 10

Amicus Br. at 14

– 24 , the conduct alleged here

— primarily consisting of a female 11

co
- worker staring and frequently making backhanded compliments about the 12 Employees’ clothes , bodies, and appearance s , a male co

- worker frequently 13 commenting that there was too much estrogen in the room , and a male supervisor 14 making a single comment arguably evidencing a bias against working 15

mothers

— is not sufficient ly severe or pervasive to support a hostile

- work

16

environ ment claim

. See Redd , 678 F.3d at 176 ( “Title VII ‘does not set forth a 17 general civility code for the American workplace.’” (quoting Burlington N. & Santa 185 Fe R y. Co. v. White , 548 U.S. 53, 68 (2006)) ). 1
Furthermore, c ontrary to the Employees ’ and amicus curiae ’s contentions , 2

we do not find that the district court made any procedural errors. For starters , it 3

cannot be said that the district court failed to view the evidence contextually and 4

in the aggregate ; ignored or discounted any material evide nce ; or improper ly 5 made credibility determinations, resolved factual disputes, or weighed evidence. 6

More particular ly , we find nothing improper in the district court’s remark that the 7

“schtick” of the co

- worker who made the “too much estrogen” comments “w as 8 unfunny and distasteful, but it is the sort of conduct ordinarily greeted with 9 eyerolls or snappy comebacks.” Estevez v. Berkel e y College , No. 18

- cv - 10350 (CS), 10 2021 WL 3115452, at *16 (S.D.N.Y. July 19, 2021). In so stating, the district court 11 was merely conducting the legally required severe

- or
- pervasive inquiry and 12 explaining its rationale for why such conduct was too trivial to meaning fully 13

contribute to the Employees’ hostile

- work

- environment claim. 14

F or these reasons , we affirm the district court’s dismissal of the Employees ’ 15

hostile

- work

- environment claims. 16

II. Retaliation 17

T he district court also properly granted summary judgment to Berkeley 186 College on the Employees’ retaliation claim s
. T he first two requirements of a 1 prima facie case for retaliation are (1) that a p laintiff engaged in protected 2

activit ies , meaning that she made complaints for which she had a good faith, 3

reasonable belief that she was opposing a n unlawful, discriminatory employment 4
practice , and (2) that the plaintiff’s employer was aware of those protected 5

activities

. See Agosto v. N.Y.C. Dep’t of Educ. , 982 F.3d 86, 104 (2d Cir. 2020) ; Kelly 6 v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C. , 716 F.3d 10, 14

– 15 (2d Cir. 7
2013)

. Here, the Employees failed to sufficiently prove th is second requirement , 8 again for the reasons thoroughly explained by the district court

. The Employees 9 have offered no evidence that would permit a reasonable factfinder to infer that 10

Estevez’s Spring 2017 complaint to a supervisor and Mancini’s July 2017 email to 11 a human resources employee

— the only instances of prot ected activities that the 12 Employees properly raised in their opposition to Berkeley College’s summary 13 judgment motion

— were understood, or could reasonably have been understood, 14

in context as complaints of gender

- based discrimination

. See Kelly , 716 F.3d at 15

– 15

17 ; see also Lenzi v. Systemax, Inc. , 944 F.3d 97, 113 (2d Cir. 2019)

. For th ese reason s , 16

we affirm t he district court ’s dismissal of the Employees’ retaliation claim s. 177 * * * 1 We have considered the Employees’ (and amicus curiae ’s ) remaining 2 arguments and find them to be meritless. Accordingly, we AFFIRM the 3 judgment of the district court. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe, Clerk of Court 6