14-3992 Ortiz v. Metropolitan Transportation Authority



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of September, two thousand fifteen.** 4 5 **PRESENT: JON O. NEWMAN,** 6 **JOHN M. WALKER, JR.,** 7 **DENNIS JACOBS,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 12 **MICHELLE ORTIZ,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 14-3992** 16 17 **METROPOLITAN TRANSPORTATION AUTHORITY,** 18 **JOHN D’AGOSTINO, SWAREN JATINDRANATH,** 19 **JOHN BERLINGIERI, KAREN TAYLOR,** 20 **ROSALIE GRASCIA, GARY HOYSRADT,** 21 **GILBERT MACHADO, ELIZABETH BRODERICK,** 22 **JOHN LESTER, MICHAEL PIZZO, MARY** 23 **O’BRIEN, HANK LOEFFEL, DIANE NASH,** 24 **ROBERT TERRETT, and JOSEPH MARTELLI,** 25 **Defendants-Appellees**

**.** 26 27 - - - - - - - - - - - - - - - - - - - -X 28

1**FOR APPELLANT:** ALAN E. WOLIN, Wolin & Wolin, 1 Jericho, New York. 2 3 **FOR APPELLEES:** HELENE R. HECHTKOPF (Ira J. 4 Lipton, on the brief ), Hoguet 5 Newman Regal & Kenney, LLP, New 6 York, New York. 7 8 Appeal from a judgment of the United States District 9 Court for the Southern District of New York (Broderick, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 Michelle Ortiz appeals from the judgment of the United 16 States District Court for the Southern District of New York 17 (Broderick, J. ), granting summary judgment in favor of 18 defendants-appellees

. We assume the parties’ familiarity 19 with the underlying facts, the procedural history, and the 20 issues presented for review. 21 22 We affirm for substantially the reasons stated by the 23 district court in its thorough Memorandum and Order of 24 September 30, 2014. 25 26 **1.** Most of Ortiz’s claims are time-barred, including: 27 (1) the Title VII claims that arise from events taking place 28 before March 26, 2011; (2) the § 1983 claims that arise from 29 events taking place before February 14, 2010 and the § 1981 30 claims that arise from events taking place before February 31 14, 2009; and (3) the state-law claims that arise from 32 events taking place before April 15, 2009. 33 34 With a single exception (discussed below), Ortiz’s 35 argument that the “continuing violation” doctrine excuses 36 her untimely filing is unavailing: “multiple incidents of 37 discrimination, even similar ones, that are not the result 38 of a discriminatory policy or mechanism do not amount to a 39 continuing violation.” Lambert v. Genesee Hosp. , 10 F.3d 40 46, 53 (2d Cir. 1993), overruled in part on other grounds by 41 Greathouse v. JHS Sec. Inc. , 784 F.3d 105, 117 (2d Cir. 42 2015). 43 44 Ortiz’s hostile-work environment claims, however, are 45 timely under the “continuing violation” doctrine, and 46 conduct outside the limitations period may be considered. 47

2SeeNat’l R.R. Passenger Corp v. Morgan , 536 U.S. 101, 105 1 (2002) (“[C]onsideration of the entire scope of a hostile 2 work environment claim, including behavior alleged outside 3 the statutory time period, is permissible for purposes of 4 assessing liability, so long as an act contributing to that 5 hostile environment takes place within the statutory time 6 period.”). 7 8 **2.** On the merits, the district court properly granted 9 summary judgment on the hostile work environment claims. 10 Any workplace misconduct here was insufficiently “severe or 11 pervasive” to create a hostile work environment. Patane v. 12 Clark , 508 F.3d 106, 113 (2d Cir. 2007). Moreover, most of 13 the complained-of conduct bears no apparent connection to 14 Ortiz’s sex, race, or national origin. 15 16 **3.** As to the remaining discrimination claims-- 17 including but not limited to Ortiz’s claims relating to 18 assignment to a hazardous post, excessive scrutiny and 19 “micromanagement” of Ortiz’s work by her supervisors, and 20 denial of a non-monetary award--the district court correctly 21 held that none qualified as adverse employment actions. 22 Some of the instances of alleged discrimination could, 23 theoretically, have qualified as adverse employment actions 24 on different facts--if, say, there were evidence that a non25 monetary award is critical to career advancement in this 26 particular workplace. But there is insufficient evidence in 27 the summary judgment record for a reasonable jury to find 28 for Ortiz on any of these claims. 29 30 **4.** Ortiz’s remaining retaliation claims all fail. 31 Among other reasons, there is no evidence that any of the 32 alleged retaliatory acts had any causal connection to 33 protected activity. 34 35 **5.** Ortiz’s (timely) discrimination claims under 42 36 U.S.C. § 1981 and under the New York State (and New York 37 City) Human Rights Laws, allege (1) excessive supervision 38 and (2) rejection of her application to work in a K-9 unit. 39 Both of these claims fail on the merits, for the reasons 40 stated by the district court. Although the standards 41 applicable to the New York City Human Rights Law are not the 42 same as those applicable to federal law, the record is 43 insufficient to create a triable issue under the standards 44 of the City’s law. 45 46 47

3*** * *** 1 2 For the foregoing reasons, and finding no merit in 3 Ortiz’s other arguments, we hereby **AFFIRM** the judgment of 4 the district court. 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8 9

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