14-3992

Ortiz v. Metropolitan Transportation Authority

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 A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 11th 4 day of September, two thousand fifteen.

5

6 PRESENT: JON O. NEWMAN,

7 JOHN M. WALKER, JR.,

8 DENNIS JACOBS,

9 Circuit Judges.

10

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12

13 MICHELLE ORTIZ, 

14 Plaintiff-Appellant,

15

16 -v.- 14-3992

17

18 METROPOLITAN TRANSPORTATION AUTHORITY,

19 JOHN D’AGOSTINO, SWAREN JATINDRANATH,

20 JOHN BERLINGIERI, KAREN TAYLOR,

21 ROSALIE GRASCIA, GARY HOYSRADT,

22 GILBERT MACHADO, ELIZABETH BRODERICK,

23 JOHN LESTER, MICHAEL PIZZO, MARY

24 O’BRIEN, HANK LOEFFEL, DIANE NASH,

25 ROBERT TERRETT, and JOSEPH MARTELLI, 

26 Defendants-Appellees.

27

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1
1 FOR APPELLANT: ALAN E. WOLIN, Wolin & Wolin,

2 Jericho, New York.

3

4 FOR APPELLEES: HELENE R. HECHTKOPF (Ira J.

5 Lipton, on the brief), Hoguet

6 Newman Regal & Kenney, LLP, New

7 York, New York.

8

9 Appeal from a judgment of the United States District

10 Court for the Southern District of New York (Broderick, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15

16 Michelle Ortiz appeals from the judgment of the United

17 States District Court for the Southern District of New York

18 (Broderick, J.), granting summary judgment in favor of

19 defendants-appellees. We assume the parties’ familiarity

20 with the underlying facts, the procedural history, and the

21 issues presented for review.

22

23 We affirm for substantially the reasons stated by the

24 district court in its thorough Memorandum and Order of

25 September 30, 2014.

26

27 1. Most of Ortiz’s claims are time-barred, including:

28 (1) the Title VII claims that arise from events taking place

29 before March 26, 2011; (2) the § 1983 claims that arise from

30 events taking place before February 14, 2010 and the § 1981

31 claims that arise from events taking place before February

32 14, 2009; and (3) the state-law claims that arise from

33 events taking place before April 15, 2009.

34

35 With a single exception (discussed below), Ortiz’s

36 argument that the “continuing violation” doctrine excuses

37 her untimely filing is unavailing: “multiple incidents of

38 discrimination, even similar ones, that are not the result

39 of a discriminatory policy or mechanism do not amount to a

40 continuing violation.” Lambert v. Genesee Hosp., 10 F.3d

41 46, 53 (2d Cir. 1993), overruled in part on other grounds by

42 Greathouse v. JHS Sec. Inc., 784 F.3d 105, 117 (2d Cir.

43 2015).

44

45 Ortiz’s hostile-work environment claims, however, are

46 timely under the “continuing violation” doctrine, and

47 conduct outside the limitations period may be considered. 

2
1 See Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 105

2 (2002) (“[C]onsideration of the entire scope of a hostile

3 work environment claim, including behavior alleged outside

4 the statutory time period, is permissible for purposes of

5 assessing liability, so long as an act contributing to that

6 hostile environment takes place within the statutory time

7 period.”).

8

9 2. On the merits, the district court properly granted

10 summary judgment on the hostile work environment claims. 

11 Any workplace misconduct here was insufficiently “severe or

12 pervasive” to create a hostile work environment. Patane v.

13 Clark, 508 F.3d 106, 113 (2d Cir. 2007). Moreover, most of

14 the complained-of conduct bears no apparent connection to

15 Ortiz’s sex, race, or national origin.

16

17 3. As to the remaining discrimination claims--

18 including but not limited to Ortiz’s claims relating to

19 assignment to a hazardous post, excessive scrutiny and

20 “micromanagement” of Ortiz’s work by her supervisors, and

21 denial of a non-monetary award--the district court correctly

22 held that none qualified as adverse employment actions. 

23 Some of the instances of alleged discrimination could,

24 theoretically, have qualified as adverse employment actions

25 on different facts--if, say, there were evidence that a non26 monetary award is critical to career advancement in this

27 particular workplace. But there is insufficient evidence in

28 the summary judgment record for a reasonable jury to find

29 for Ortiz on any of these claims.

30

31 4. Ortiz’s remaining retaliation claims all fail. 

32 Among other reasons, there is no evidence that any of the

33 alleged retaliatory acts had any causal connection to

34 protected activity.

35

36 5. Ortiz’s (timely) discrimination claims under 42

37 U.S.C. § 1981 and under the New York State (and New York

38 City) Human Rights Laws, allege (1) excessive supervision

39 and (2) rejection of her application to work in a K-9 unit. 

40 Both of these claims fail on the merits, for the reasons

41 stated by the district court. Although the standards

42 applicable to the New York City Human Rights Law are not the

43 same as those applicable to federal law, the record is

44 insufficient to create a triable issue under the standards

45 of the City’s law.

46

47

3
1 * * *

2

3 For the foregoing reasons, and finding no merit in

4 Ortiz’s other arguments, we hereby AFFIRM the judgment of

5 the district court.

6

7 FOR THE COURT:

8 CATHERINE O’HAGAN WOLFE, CLERK

9

4