14‐3332‐cv White v. Andy Frain Servs., Inc.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of November, two thousand fifteen.
PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, EDWARD R. KORMAN, Senior District Judge.*
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HARTLEY C. WHITE, Plaintiff‐Appellant,
v. 14‐3332‐cv
ANDY FRAIN SERVICES, INC., Defendant‐Appellee.
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* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. FOR PLAINTIFF‐APPELLANT: Hartley C. White, pro se, Corona, New York.
FOR DEFENDANT‐APPELLEE: John T. Bauer, Justin R. Marino, Littler Mendelson P.C., Melville, New York.
Appeal from the United States District Court for the Eastern District of
New York (Gleeson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Hartley C. White, proceeding pro se, appeals from an
August 8, 2014 judgment of the United States District Court for the Eastern District of
New York, entered after the district court, by memorandum and order filed August 8,
2014, granted summary judgment in favor of defendant‐appellee Andy Frain Services,
Inc. (ʺAndy Frainʺ), dismissing his employment discrimination claims brought under,
inter alia, Title VII of the Civil Rights Act of 1964 (ʺTitle VIIʺ), the New York State
Human Rights Law (ʺNYSHRLʺ), and the New York City Human Rights Law
(ʺNYCHRLʺ). We assume the partiesʹ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
White is a black Jewish man from Jamaica who was employed by Andy
Frain from 2008 to 2012. Liberally construed, his complaint asserts that Andy Frain
discriminated against him by failing to give him a raise, providing unequal terms and
conditions of employment, retaliating against him for assisting a co‐workerʹs
‐ 2 ‐ discrimination case, and maintaining a hostile work environment. White alleges that
during his employment, his supervisor made several discriminatory remarks.
We review de novo orders granting summary judgment. Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). A movant is entitled to summary
judgment if ʺthere is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). Summary judgment is
appropriate ʺ[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non‐moving party.ʺ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). ʺBecause [White] was pro se below, we must interpret his papers
liberally ʹto raise the strongest arguments that they suggest.ʹʺ Willey v. Kirkpatrick, 801
F.3d 51, 62 (2d Cir. 2015) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1993)).
We affirm substantially for the reasons set forth by the district court in its
memorandum and order. Whiteʹs claims fail because no rational factfinder could
conclude that Andy Frain discriminated against him because of his protected
characteristics.
To establish a prima facie case of employment discrimination, a plaintiff
ʺmust demonstrate that: 1) he was within the protected . . . group; 2) he was qualified
for the position; 3) he was subject to an adverse employment action; and 4) the adverse
action occurred under circumstances giving rise to an inference of discrimination.ʺ
Terry v. Ashcroft, 336 F.3d 128, 137‐38 (2d Cir. 2003) (quoting Roge v. NYP Holdings, Inc.,
‐ 3 ‐ 257 F.3d 164, 168 (2d Cir. 2001)); accord Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913
(2d Cir. 1997) (same for NYSHRL claims). And though we must construe NYCHRL
claims more liberally than federal and state law claims, NYCHRL similarly only
prohibits discrimination in the ʺterms, conditions or privileges of employmentʺ when
such discrimination is ʺbecause ofʺ a protected characteristic. N.Y.C. Admin. Code § 8‐
107(1)(a); accord 42 U.S.C. § 2000e‐2(a)(1); see also Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (mandating independent consideration of
ʺbroader New York City standardsʺ).
Most of the actions that White complains of do not qualify as adverse
employment actions. White complains that he was paid late, denied certain vacation
requests, and forced to work overtime when his replacement did not show up. These
troubles are no ʺmore disruptive than a mere inconvenience or an alteration of job
responsibilities.ʺ Terry, 336 F.3d at 138 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000)).
White also claims that he was denied a discretionary raise. We recently
rejected the view that an employerʹs discretionary conduct can never constitute an
actionable adverse employment action. Davis v. N.Y.C. Depʹt of Educ., No. 14‐1034‐cv,
2015 WL 6118183, at *3‐4 (2d Cir. Oct. 19, 2015) (per curiam). Here, however, White
admits that he sought a pay increase for all tennis center employees, that none received
an increase, and that he was unaware of and did not specifically apply for any other
‐ 4 ‐ open positions. There is thus no evidence of an adverse employment action ‐‐
discretionary or otherwise ‐‐ taken against White.
Even assuming that adverse employment actions occurred, no rational
factfinder could find that Andy Frain took those actions because of Whiteʹs protected
characteristics. White alleges that his supervisor made several off‐color comments over
the course of a year and a half about him being black and Jewish. But a rational
factfinder could not reasonably find a causal connection between these remarks and any
employment action of which he complains. Without some causal connection, these off‐
color comments were no more than stray remarks. And ʺstray remarks,ʺ without ʺother
indicia of discrimination,ʺ are not enough. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56
(2d Cir. 1998). This record lacks those indicia.1
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14‐3332‐cv White v. Andy Frain Servs., Inc.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of November, two thousand fifteen.
PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, EDWARD R. KORMAN, Senior District Judge.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
HARTLEY C. WHITE, Plaintiff‐Appellant,
v. 14‐3332‐cv
ANDY FRAIN SERVICES, INC., Defendant‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. FOR PLAINTIFF‐APPELLANT: Hartley C. White, pro se, Corona, New York.
FOR DEFENDANT‐APPELLEE: John T. Bauer, Justin R. Marino, Littler Mendelson P.C., Melville, New York.
Appeal from the United States District Court for the Eastern District of
New York (Gleeson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Hartley C. White, proceeding pro se, appeals from an
August 8, 2014 judgment of the United States District Court for the Eastern District of
New York, entered after the district court, by memorandum and order filed August 8,
2014, granted summary judgment in favor of defendant‐appellee Andy Frain Services,
Inc. (ʺAndy Frainʺ), dismissing his employment discrimination claims brought under,
inter alia, Title VII of the Civil Rights Act of 1964 (ʺTitle VIIʺ), the New York State
Human Rights Law (ʺNYSHRLʺ), and the New York City Human Rights Law
(ʺNYCHRLʺ). We assume the partiesʹ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
White is a black Jewish man from Jamaica who was employed by Andy
Frain from 2008 to 2012. Liberally construed, his complaint asserts that Andy Frain
discriminated against him by failing to give him a raise, providing unequal terms and
conditions of employment, retaliating against him for assisting a co‐workerʹs
‐ 2 ‐ discrimination case, and maintaining a hostile work environment. White alleges that
during his employment, his supervisor made several discriminatory remarks.
We review de novo orders granting summary judgment. Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). A movant is entitled to summary
judgment if ʺthere is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). Summary judgment is
appropriate ʺ[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non‐moving party.ʺ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). ʺBecause [White] was pro se below, we must interpret his papers
liberally ʹto raise the strongest arguments that they suggest.ʹʺ Willey v. Kirkpatrick, 801
F.3d 51, 62 (2d Cir. 2015) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1993)).
We affirm substantially for the reasons set forth by the district court in its
memorandum and order. Whiteʹs claims fail because no rational factfinder could
conclude that Andy Frain discriminated against him because of his protected
characteristics.
To establish a prima facie case of employment discrimination, a plaintiff
ʺmust demonstrate that: 1) he was within the protected . . . group; 2) he was qualified
for the position; 3) he was subject to an adverse employment action; and 4) the adverse
action occurred under circumstances giving rise to an inference of discrimination.ʺ
Terry v. Ashcroft, 336 F.3d 128, 137‐38 (2d Cir. 2003) (quoting Roge v. NYP Holdings, Inc.,
‐ 3 ‐ 257 F.3d 164, 168 (2d Cir. 2001)); accord Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913
(2d Cir. 1997) (same for NYSHRL claims). And though we must construe NYCHRL
claims more liberally than federal and state law claims, NYCHRL similarly only
prohibits discrimination in the ʺterms, conditions or privileges of employmentʺ when
such discrimination is ʺbecause ofʺ a protected characteristic. N.Y.C. Admin. Code § 8‐
107(1)(a); accord 42 U.S.C. § 2000e‐2(a)(1); see also Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (mandating independent consideration of
ʺbroader New York City standardsʺ).
Most of the actions that White complains of do not qualify as adverse
employment actions. White complains that he was paid late, denied certain vacation
requests, and forced to work overtime when his replacement did not show up. These
troubles are no ʺmore disruptive than a mere inconvenience or an alteration of job
responsibilities.ʺ Terry, 336 F.3d at 138 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000)).
White also claims that he was denied a discretionary raise. We recently
rejected the view that an employerʹs discretionary conduct can never constitute an
actionable adverse employment action. Davis v. N.Y.C. Depʹt of Educ., No. 14‐1034‐cv,
2015 WL 6118183, at *3‐4 (2d Cir. Oct. 19, 2015) (per curiam). Here, however, White
admits that he sought a pay increase for all tennis center employees, that none received
an increase, and that he was unaware of and did not specifically apply for any other
‐ 4 ‐ open positions. There is thus no evidence of an adverse employment action ‐‐
discretionary or otherwise ‐‐ taken against White.
Even assuming that adverse employment actions occurred, no rational
factfinder could find that Andy Frain took those actions because of Whiteʹs protected
characteristics. White alleges that his supervisor made several off‐color comments over
the course of a year and a half about him being black and Jewish. But a rational
factfinder could not reasonably find a causal connection between these remarks and any
employment action of which he complains. Without some causal connection, these off‐
color comments were no more than stray remarks. And ʺstray remarks,ʺ without ʺother
indicia of discrimination,ʺ are not enough. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56
(2d Cir. 1998). This record lacks those indicia.1
Liberally construed, White also raises a Title VII claim that, by denying his
vacation request, Andy Frain failed to reasonably accommodate his religious beliefs.
1 A prima facie retaliation claim involves showing that ʺ(1) [the employee] was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.ʺ Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012); see also Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (same for NYSHRL claims). The adverse action must be one that ʺwell might have dissuaded a reasonable worker from making or supporting a charge of discrimination.ʺ Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Although NYCHRL must again be broadly construed, a plaintiff suing under that statute is still required to ʺshow that [he] took an action opposing [his] employerʹs discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.ʺ Mihalik, 715 F.3d at 112 (citations omitted). Here, the evidence establishes at most that Andy Frain raised concerns about Whiteʹs performance with its client and that no further action was taken in light of the clientʹs favorable view of White. A retaliation claim cannot go forward on the basis of such evidence.
‐ 5 ‐ The employer has a duty to offer a reasonable accommodation for ʺall aspects of
religious observance and practiceʺ once notified by the employee. 42 U.S.C. § 2000e(j);
see Cosme v. Henderson, 287 F.3d 152, 157‐58 (2d Cir. 2002). A plaintiff thus makes out a
prima facie case by proving (1) he has a bona fide religious belief that conflicts with an
employment requirement, (2) he informed the employer of the belief, and (3) he was
disciplined for failure to comply with the requirement. Philbrook v. Ansonia Bd. of Educ.,
757 F.2d 476, 481 (2d Cir. 1985); accord N.Y. Exec. Law § 296(10)(b) (ʺ[N]o person shall be
required to remain at his or her place of employment during any day or days or portion
thereof that, as a requirement of his or her religion, he or she observes as his or her
sabbath or other holy day . . . .ʺ); N.Y.C. Admin. Code § 8‐107(3)(a) (substantially
identical language). By Whiteʹs own deposition testimony, he never advised Andy
Frain that his Jewish faith conflicted with his ability to work. He stated only that he
wanted vacation to ʺcoincide closely with the Passoverʺ and that he ʺbasically would
likeʺ that to happen. White Dep. at 170:7‐20, ECF No. 33‐4. He never suggested that he
was unable to work on Passover. Moreover, even assuming that Andy Frain knew of a
religious conflict, nothing in the record suggests that Andy Frain punished White for
failing to comply with the employment requirement. See Philbrook, 757 F.2d at 481.
We have reviewed Whiteʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
‐ 6 ‐