Lawson v. Trish Homenuk, Individually, Avis Budget Car Rental, LLC

IRIS LAWSON, Plaintiff-Appellant, v. TRISH HOMENUK, individually, AVIS BUDGET CARRENTAL, LLC, Defendants-Appellees,AVIS BUDGET GROUP, INC., Defendant.^*

No. 16-3736-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

October 11, 2017

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.

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 11^th day of October, two thousand seventeen.

PRESENT: ROBERT D. SACK, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges.

APPEARING FOR APPELLANT:

JESSE C. ROSE, Phillips & Associates, Attorneys at Law, PLLC, New York, New York.

APPEARING FOR APPELLEES:

A. MICHAEL WEBER, Littler Mendelson, P.C., New York, New York.

Appeal from a judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on January 30, 2017, is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings.

Plaintiff Iris Lawson appeals from an award of summary judgment in favor of her former employer Avis Budget Car Rental, LLC ("Avis") and former supervisor Trish Homenuk on claims of (1) disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296; (2) failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; and New York Labor Law ("NYLL"), N.Y. Lab. Law § 650 et seq.; and (3) disclosure of confidential medical information in violation of the ADA, 42 U.S.C. § 12112. Lawson further appeals from the denial of her motion for reconsideration.

We review an award of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences and resolving all ambiguities in that party's favor. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). We "may affirm on any basis for which there is sufficient support in the record." Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006). We review denial of a motion for reconsideration for abuse of discretion. See Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 29 (2d Cir. 2017). In applying these principles here, we assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm in part and vacate in part.

1. Discrimination and Retaliation Claims

Discrimination and retaliation claims brought under the ADA, FMLA, and NYSHRL are all governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016); McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). Under this framework, a plaintiff must establish a prima facie violation, which shifts the burden to the defendant to advance a legitimate, non-discriminatory reason for its actions, at which point the final burden is on the plaintiff to show that the defendant's proffered reason is pretextual. See Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015).

To carry her prima facie burden, Lawson had to show, inter alia, that she suffered an adverse employment action. See Graziadio v. Culinary Inst. of Am., 817 F.3d at 429; McMillan v. City of New York, 711 F.3d at 125; Spiegel v. Schulmann, 604 F.3d at 80. To support a discrimination claim, the adverse action must be "materially adverse with respect to the terms and conditions of employment" and "more disruptive than a mere inconvenience or an alteration of job responsibilities." Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (internal quotation marks omitted). To support a retaliation claim, an adverse action must be "likely to dissuade a reasonable worker in the plaintiff's position from exercising . . . legal rights." Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011).

Like the district court, we conclude that Lawson failed to adduce sufficient evidence of an adverse employment action. As Lawson testified at her deposition, she experienced no change in job title, position, she continued to have supervisory responsibilities, and she was never demoted. Her argument that Homenuk locked her out of the office where she performed her managerial duties, thereby forcing her to work at the front counter alongside non-managerial employees and for additional hours to complete her managerial tasks, is undermined by her deposition. Lawson there testified that, on the occasions she found the office door locked, it may have been locked simply because Homenuk, who shared the office, was on the phone. Moreover, upon finding the door locked, Lawson made no efforts to gain entry until Homenuk left for the day. Lawson acknowledged that she had full access to the office for at least five hours of every shift. Nor does Lawson point to any evidence that Homenuk instructed her to remain at the front counter. Rather, she stated that she would "just . . . come in, [and] go to the counter" without such instruction.¹ App'x 204.

In sum, because Lawson failed to adduce evidence admitting an inference that she experienced the sort of adverse employment action necessary to establish prima facie discrimination or retaliation, defendants were entitled to summary judgment on these claims.

In her reply brief, Lawson contends that the district court erred in failing to consider the insults she allegedly experienced at work to "be an adverse employment action." Reply Br. 4 (citing Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Lawson did not raise this argument in her opening brief and so it is waived. See JP Morgan Chase Bank v. Altos Harnos de Mexico, S.A. de C. V., 412 F.3d 418, 428 (2d Cir. 2005). In any event, Lawson's argument relies on the same purported pattern of harassment that undergirds her hostile work environment claim. It is defeated for the same reasons that her hostile work environment claim falls short. See infra Part 2.

2. Hostile Work Environment and Constructive Discharge Claims

Lawson contends that the district court erred in determining that she had not pleaded a hostile work environment claim under the ADA and NYSHRL. This court has held that a hostile work environment claim can be inferred from a "complaint [that] does not explicitly allege discrimination based on a hostile work environment" but nonetheless "gives the defendant fair notice of [the] claim for hostile work environment and the grounds upon which that claim rests," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240-41 (2d Cir. 2007), a standard that we have not restated since the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). We need not decide whether Lawson pleaded a hostile work environment claim because, like the district court, we conclude that Lawson does not adduce evidence to support such a claim in any event. For the same reason, we need not decide whether a hostile work environment claim is cognizable under the ADA. See Flieger v. E. Suffolk BOCES, No. 16-2556-CV, 2017 WL 2377853, at *3 (2d Cir. June 1, 2017) (summary order) (recognizing issue not decided in this circuit).

To establish a hostile work environment claim, a plaintiff must show that her workplace was "so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (internal quotation marks omitted). An isolated incident "usually will not suffice to establish a hostile work environment," Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175-76 (2d Cir. 2012), unless that incident is "extraordinarily severe," Desardouin v. City of Rochester, 708 F.3d at 105 (internal quotation marks omitted). Although Lawson argues that her coworkers "constantly" made derogatory comments about her mental health, Appellant's Br. 13, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment. See Alfano v. Costello, 294 F.3d 365, 379 (2d Cir. 2002) (collecting cases).

In urging otherwise, Lawson points to an affidavit submitted in opposition to summary judgment, in which she stated that she endured insults related to her mental health on a "near daily" basis "for a period of almost a year." App'x 287. Lawson contends that the district court erred in finding that her affidavit contradicted her previous deposition testimony, and in declining to consider the affidavit to the extent it identified such contradictions. The argument is defeated by precedent holding that a party cannot "create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Crawford v. Franklin Credit...