08-5013-cv
Fincher v. Depository Trust and Clearing Corp.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2009
4 (Argued: October 15, 2009 Decided: May 14, 2010)
5 Docket No. 08-5013-cv
6 -------------------------------------
7 CYNTHIA M. FINCHER,
8 Plaintiff-Appellant,
9 - v. -
10 DEPOSITORY TRUST AND CLEARING CORPORATION,
11 Defendant-Appellee.
12 -------------------------------------
13 Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges.
14 Appeal from the award of summary judgment by the United
15 States District Court for the Southern District of New York
16 (William H. Pauley, Judge) dismissing plaintiff Cynthia Fincher's
17 employment discrimination and related claims against her former
18 employer, the Depository Trust and Clearing Corporation. The
19 plaintiff alleges, in part, that the defendant retaliated against
20 her for bringing a complaint of discrimination by declining to
21 investigate that complaint. We conclude that an employer's
22 failure to investigate a complaint of discrimination cannot be
23 considered an adverse employment action taken in retaliation for
24 the filing of the same discrimination complaint. Because the
1 plaintiff's remaining discrimination claims also lack merit, we
2 affirm the judgment of the district court.
3 Affirmed.
4 STEPHEN T. MITCHELL, Stephen T.
5 Mitchell, P.C., New York, NY, for
6 Plaintiff-Appellant.
7 FREDERIC C. LEFFLER, Proskauer Rose LLP
8 (Rebecca L. Berkebile, of counsel), New
9 York, NY, for Defendant-Appellee.
10 SACK, Circuit Judge:
11 The plaintiff, Cynthia Fincher, is an African-American
12 woman who was employed by the defendant, Depository Trust and
13 Clearing Corporation ("DTCC"). She first held the position of
14 product manager in the company's International Tax Department.
15 Thereafter, she was a Senior Auditor in the Financial/Operations
16 Division of the company's Audit Department. She resigned her
17 employment on June 5, 2006. She subsequently brought suit in the
18 United States District Court for the Southern District of New
19 York alleging that she was the victim of racial discrimination
20 with respect to training opportunities, performance evaluations,
21 and salary decisions during her time in the Audit Department.
22 She also claimed that she was subjected to unlawful retaliation,
23 a hostile work environment, and constructive discharge. Central
24 to the latter three claims was Fincher's contention that DTCC
25 failed to investigate a complaint of discrimination that she
26 allegedly made to the company's senior director of employee
27 relations.
2
1 Upon motion for summary judgment by DTCC, the district
2 court (William H. Pauley, Judge) dismissed all of Fincher's
3 claims. Fincher appeals, arguing that DTCC's failure to
4 investigate her complaint of discrimination was itself an act of
5 retaliation for making the discrimination complaint, and that it
6 also contributed to a hostile work environment and her
7 constructive discharge. Fincher also challenges the dismissal of
8 her underlying discrimination claims on the ground that the
9 district court improperly disregarded her deposition testimony
10 that her manager at the defendant's auditing department told her
11 that she had been given inadequate training because of her race.
12 Accepting as we must at this stage of the proceedings
13 that Fincher's testimony to the effect that DTCC failed to
14 investigate her complaint of racial discrimination is true, we
15 nonetheless conclude that such a failure does not constitute an
16 adverse employment action taken in retaliation for the filing of
17 the same discrimination complaint. We also conclude that Fincher
18 has failed to raise a triable issue of material fact as to her
19 other claims of retaliation, or her claims of hostile work
20 environment or constructive discharge. And inasmuch as Fincher
21 has failed to support her underlying discrimination claims with
22 more than a "scintilla of evidence," summary judgment as to those
23 claims was also proper.
24 We therefore affirm the judgment of the district court.
25
3
1 BACKGROUND
2 Fincher was employed by DTCC from February 2001 to June
3 2006. She worked as a product manager for the company's
4 International Tax Department until that position was eliminated
5 in October 2004. She then moved to the company's
6 Financial/Operations Division of the Audit Department, where she
7 was a Senior Auditor despite a lack of auditing experience.
8 Between October 2004 and May 2006, in order to perform her
9 duties, she relied upon several training courses provided to all
10 auditors in her department, an audit manual, and guidance from
11 co-workers.
12 Fincher testified that a co-worker on her first
13 assignment worked with an experienced manager. Fincher's first
14 manager was, by contrast, a consultant unfamiliar with DTCC
15 auditing procedures. And on one occasion, two of Fincher's co-
16 workers underwent unspecified training at a session that Fincher
17 was not asked to attend.
18 In March 2005, Fincher received an official
19 "Performance Appraisal" for her first two months in the Audit
20 Department during 2004. It was signed by the Audit Department
21 manager, Mark Hudson. It contained a handwritten note addressed
22 to Fincher explaining that she had received "[a] good first
23 review but further audit skill development is needed before more
24 indepth [sic] feedback can be given. Keep trying. . . ." 2004
25 Appraisal at 1. She received a mark of "Fully Competent" in
4
1 every performance category for which she was graded. "Fully
2 Competent" was in the middle of the grading scale, which ranged
3 from "Unacceptable" to "Exceptional."
4 Fincher's Performance Appraisal for 2005, compiled in
5 this instance by Fincher's supervisor Donald Simpson, and then
6 approved by Hudson on January 11, 2006, reflected a grade of
7 "Requires Improvement" for most of the performance categories.
8 For this performance evaluation, managers were instructed to give
9 a grade of "Requires Improvement" only to employees in the bottom
10 5-15% of the company. Fincher's review contained several "Fully
11 Competent" evaluations, reserved for employees in the middle 55-
12 65% of the company, but also several "Unacceptable" grades,
13 reserved for the bottom 0-5% of employees. For example, Fincher
14 received a grade of "Unacceptable" under "Demonstrates the
15 technical/functional skills to do the job," and under "Can be
16 counted on to complete assignments with minimal follow-up." 2005
17 Appraisal at 2, 3. A concluding section labeled "Manager's
18 Comments" asserted that Fincher frequently failed to meet
19 deadlines and indicated that the department's managers had a poor
20 overall impression of Fincher's work. Id. at 4.
21 On March 1, 2006, Fincher received by email attachment
22 a Project Evaluation for a particular audit that she had
23 completed. It reflected the grade of "Requires Improvement" in
24 every category for which an evaluation was given.
25 On March 23, 2006, Fincher received a written
26 "Performance Warning" from Hudson. It purported to document
5
1 various perceived shortcomings in Fincher's work, including
2 failure to complete tasks "within allotted timeframes." It also
3 informed Fincher that she was "being placed on written warning
4 for poor performance. . . . [F]ailure to immediately improve and
5 sustain an acceptable level of performance, or further
6 performance deficiencies, will result in further disciplinary
7 action, up to and including termination of your employment."
8 Memorandum from Mark Hudson to Cynthia Fincher, "Written
9 Performance Warning," Mar. 23, 2006.
10 In late March 2006, Fincher had a conversation with
11 Charles Smith, the Senior Director of Employee Relations at DTCC,
12 in the lobby of their office building. They were professional
13 and social acquaintances who occasionally lunched together.
14 According to Fincher, she complained to Smith that "black people
15 were set up to fail at [the Auditing] department because they
16 were not provided and given the same training opportunities as
17 the white employees." Fincher Dep. 202. Smith's recollection is
18 different.1
19 About one week later, Fincher and Smith had another
20 conversation as to which their recollections also conflict.
21 According to Fincher, she asked Smith whether he or his manager
22 was planning to take action in response to the complaint of
1
Although we are required to and do credit Fincher's
account at this stage of the proceedings, we note that according
to Smith, Fincher only made a casual remark that "if you are
white they hold your hand and if you are black, they don't."
Smith testified that he did not understand Fincher to be lodging
a complaint of discrimination. Smith Dep. 124.
6
1 discrimination she had made during their first conversation.
2 Smith told her that the complaint would not be addressed.2
3 Fincher also testified to a conversation she had with
4 her manager, Mark Hudson, in his office in May 2006. He
5 "admitted to me," she said, "that he was forced to write me up,
6 and he . . . had informed [Human Resources Employee Elizabeth]
7 Baez that I did not receive proper training, and he admitted that
8 I was discriminated against." Fincher Dep. 125. She said he
9 said that "[she] was not the only one being discriminated
10 against." He allegedly named one Herb Fray as also having been
11 subjected to discrimination. Id.3
12 On June 5, 2006, Fincher resigned her employment. In a
13 letter addressed to Baez, she said that her resignation was "due
14 to [] racial discrimination," including "receiving inadequate
15 training." Resignation Letter to Elizabeth Baez, June 5, 2006.
16 The letter concluded: "I was forced out because of racial
17 discrimination and because I am aware of the fact that the
18 company did not act on racial discrimination complaints brought
19 forth by myself and others." Id.
20 In a second letter, also dated June 5, addressed to
21 Meriam Murphy-Jones, a Vice President in the Audit Department,
2
According to Smith, Fincher simply repeated her remark
that "if you are white they hold your hand and if you are black,
they don't." Smith Dep. 125. Smith testified that he asked
Fincher whether she was making a serious complaint, and that,
when she indicated that she was, Smith "put the wheels in motion
to investigate." Id.
3
Hudson, who was not deposed, submitted an affidavit in
which he denied that the conversation took place.
7
1 Fincher announced her resignation, explaining that she had been
2 "offered a position as Vice-President at another firm; therefore
3 my last day will be on Friday June 16th." Resignation Letter to
4 Meriam Murphy-Jones, June 5, 2006.
5 Then, without first making a complaint to the Equal
6 Employment Opportunity Commission ("EEOC"), Fincher brought this
7 employment discrimination action against DTCC in the United
8 States District Court for the Southern District of New York. She
9 alleges violations of the Civil Rights Act of 1991, 42 U.S.C.
10 § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
11 § 2000e et seq. ("Title VII"), New York State Executive Law
12 § 296, and the New York City Administrative Code § 8-502 (the New
13 York State and New York City Human Rights Laws, or the HRL and
14 CHRL, respectively).
15 Count I of her complaint alleges that she was subjected
16 to racial discrimination with respect to training opportunities,
17 performance reviews, and salary decisions. Count II alleges that
18 she was the victim of retaliation for making a complaint of
19 racial discrimination to Smith, and that she was subjected to a
20 hostile work environment. Both the retaliation claim and the
21 hostile work environment claim were based on DTCC's alleged
22 failure to investigate Fincher's complaint of racial
23 discrimination to Smith. Count II of the complaint also asserted
24 a claim of constructive discharge based on the allegations of
25 retaliation and hostile work environment made in the same claim
26 for relief. See Compl. ¶ 17 ("[Fincher] was compelled to leave
8
1 the firm for these reasons."). The complaint did not indicate
2 which alleged conduct she was challenging under which of the
3 statutes she invoked.
4 DTCC moved for summary judgment. On September 17,
5 2008, the district court issued a Memorandum and Order granting
6 DTCC's motion and dismissing Fincher's claims in their entirety.
7 Fincher v. Depository Trust & Clearing Corp., No. 06 Civ. 9959,
8 2008 WL 4308126, 2008 U.S. Dist. LEXIS 70046 (S.D.N.Y. Sept. 17,
9 2008). The district court dismissed Fincher's Title VII claims
10 for her failure to satisfy the necessary precondition for such
11 claims of filing a complaint with the EEOC. Id., 2008 WL
12 4308126, at *3, 2008 U.S. Dist. LEXIS 70046, at *7.
13 As to her discrimination claims under 42 U.S.C. § 1981,
14 the district court concluded that Fincher had failed to show that
15 the circumstances of her training, performance evaluations, or
16 compensation gave rise to an inference of discrimination, and
17 that she had therefore failed to establish a prima facie case of
18 discrimination. Id., 2008 WL 4308126, at *3-4, 2008 U.S. Dist.
19 LEXIS 70046, at *7-11. In reaching this conclusion, the court
20 appears to have discredited Fincher's testimony that Hudson told
21 her that he thought she had been discriminated against, noting
22 that Fincher's testimony "is not supported by anything other than
23 [her] ipse dixit." Id., 2008 WL 4308126, at *4, 2008 U.S. Dist.
24 LEXIS 70046, at *10. "Hudson denies making such statements and
25 Fincher has not offered any direct or circumstantial evidence to
26 corroborate her testimony." Id.
9
1 Turning next to Fincher's retaliation, hostile work
2 environment, and constructive discharge claims under section
3 1981, the district court concluded that Fincher had failed to
4 show that she suffered any retaliation for complaining of
5 discrimination to Smith because DTCC's failure to investigate
6 that complaint was not an adverse employment action. Id., 2008
7 WL 4308126, at *4-5, 2008 U.S. Dist. LEXIS 70046, at *11-13. The
8 court similarly found that the failure to investigate Fincher's
9 complaint did not create a hostile work environment, and that
10 Fincher had failed otherwise to establish a triable issue of
11 material fact as to the existence of a hostile work environment.
12 Id., 2008 WL 4308126, at *5, 2008 U.S. Dist. LEXIS 70046, at *13.
13 As a result of the failure of the hostile work environment claim,
14 the court concluded that her constructive discharge claim was
15 also meritless. Id., 2008 WL 4308126, at *5, 2008 U.S. Dist.
16 LEXIS 70046, at *13-14.
17 Finally, the district court concluded that Fincher had
18 failed to establish a claim under the New York State and City
19 Human Rights laws, because the court was of the view that
20 discrimination claims under those laws were analyzed under the
21 same standards as those used for claims brought under section
22 1981. Id., 2008 WL 4308126, at *5, 2008 U.S. Dist. LEXIS 70046,
23 at *14.
24 Fincher argues on appeal that DTCC's failure to
25 investigate her alleged complaint of discrimination constituted
26 retaliation for her bringing that same complaint. She also
10
1 argues that the failure to investigate her complaint, in light of
2 the "totality of the circumstances," created a hostile work
3 environment, and amounted to a constructive discharge. Finally,
4 she argues that the district court did not give sufficient
5 consideration to her testimony about Hudson's alleged admission
6 to her that she was the victim of racial discrimination.4
7 DISCUSSION
8 I. Standard of Review
9 "We review a district court's grant of summary judgment
10 de novo, construing the evidence in the light most favorable to
11 the non-moving party and drawing all reasonable inferences in its
12 favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.
13 2005). Summary judgment "should be rendered if the pleadings,
14 the discovery and disclosure materials on file, and any
4
A fourth argument made by Fincher, that summary judgment
should not have been granted because Smith allegedly contradicted
himself in the course of his deposition, does not warrant
extended discussion. The contradiction identified by Fincher is
the tension between Smith's initial testimony that he did not
learn that Fincher had complained of racial discrimination until
she resigned, Smith Dep. 48, and his later testimony that he had
heard her complain about discrimination before she resigned but
had not thought that she was making a serious complaint, Smith
Dep. 124. First, to the extent this tension can be considered an
inconsistency, it is immaterial, because the district court
accepted, for purposes of summary judgment, Fincher's testimony
that her late-March 2006 remarks to Smith constituted an actual
complaint that he and the company failed to investigate, and we
make the same assumption. Second, Smith's alleged mendacity
could not in itself constitute sufficient evidence to establish a
prima facie case of discrimination. Cf. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (explaining that
defendant's lack of credibility, "together with the elements of
the prima facie case," may be used by fact-finder to infer
intentional discrimination) (emphasis added).
11
1 affidavits show that there is no genuine issue as to any material
2 fact and that the movant is entitled to judgment as a matter of
3 law." Fed. R. Civ. P. 56(c)(2); see also Roe v. City of
4 Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). "An issue of fact is
5 genuine if the evidence is such that a reasonable jury could
6 return a verdict for the nonmoving party." Roe, 542 F.3d at 35
7 (internal quotation marks omitted). "A fact is material if it
8 might affect the outcome of the suit under the governing law."
9 Id. (internal quotation marks omitted).
10 II. Retaliation
11 A. Federal Retaliation Claims
12 Retaliation claims made under 42 U.S.C. § 1981, like
13 those made under Title VII, are evaluated using a three-step
14 burden-shifting analysis.5 See, e.g., Taitt v. Chemical Bank,
15 849 F.2d 775, 777 (2d Cir. 1988). First, the plaintiff must
16 establish a prima facie case of retaliation. If the plaintiff
17 succeeds, then a presumption of retaliation arises and the
18 employer must articulate a legitimate, non-retaliatory reason for
19 the action that the plaintiff alleges was retaliatory. If the
20 employer succeeds at the second stage, then the presumption of
21 retaliation dissipates and the plaintiff must show that
5
Fincher does not challenge the district court's finding
that her Title VII claims are barred because she failed to file
an EEOC complaint, and we do not review that finding here. See,
e.g., United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002)
("It is well established that an argument not raised on appeal is
deemed abandoned and lost, and that a court of appeals will not
consider the argument unless it has reason to believe that
manifest injustice would result otherwise." (internal quotation
marks omitted)).
12
1 retaliation was a substantial reason for the complained-of
2 action. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d
3 Cir. 2005).
4 In this case, the district court granted summary
5 judgment in favor of DTCC based on the court's conclusion that
6 Fincher had failed to establish a prima facie case of unlawful
7 retaliation. In order to establish such a prima facie case,
8 a plaintiff must adduce evidence sufficient
9 to permit a rational trier of fact to find
10 (1) that [s]he engaged in protected
11 [activity] under [the anti-discrimination
12 statutes], (2) that the employer was aware of
13 this activity, (3) that the employer took
14 adverse action against the plaintiff, and (4)
15 that a causal connection exists between the
16 protected activity and the adverse action,
17 i.e., that a retaliatory motive played a part
18 in the adverse employment action.
19 Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199,
20 205-06 (2d Cir. 2006) (alterations incorporated); accord Lizardo
21 v. Denny's, Inc., 270 F.3d 94, 105 (2d Cir. 2001).6
22 The district court concluded that Fincher had failed to
23 establish a prima facie case of retaliation because even
24 accepting, for purposes of summary judgment, her testimony that
6
Although we refer to an "adverse employment action" in
applying the test, see also, e.g., Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006), such an action need
not affect the terms and conditions of a plaintiff's employment
for purposes of a retaliation claim, see Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 61-67 (2006) (discussing Title VII
anti-retaliation provision); cf. Mathirampuzha v. Potter, 548
F.3d 70, 78 (2d Cir. 2008) (noting that for purposes of a Title
VII discrimination rather than retaliation case, "[a]n adverse
employment action is a materially adverse change in the terms and
conditions of employment" (internal quotation marks and emphasis
omitted)).
13
1 she complained of discrimination to Smith in late March 2006 and
2 that the company failed to investigate that complaint, such a
3 failure to investigate did not constitute an adverse employment
4 action. The anti-retaliation law "protects an individual not
5 from all retaliation, but from retaliation that produces an
6 injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548
7 U.S. 53, 67 (2006).
8 [A] plaintiff must show that a reasonable
9 employee would have found the challenged
10 action materially adverse, which in this
11 context means it well might have dissuaded a
12 reasonable worker from making or supporting a
13 charge of discrimination. We speak of
14 material adversity because we believe it is
15 important to separate significant from
16 trivial harms.
17
18 Id. at 68 (internal quotation marks and citations omitted,
19 emphasis in original).
20 Because we must resolve all factual ambiguities against
21 DTCC, we accept for purposes of this appeal that Fincher made a
22 complaint of discrimination to Smith in late March 2006 and that
23 Smith was aware that Fincher was making a complaint. Fincher has
24 thus satisfied the first two elements of her prima facie case.
25 We further accept for purposes of this appeal that the company
26 failed to investigate Fincher's complaint. We agree with the
27 district court, however, that any such failure did not constitute
28 an adverse employment action against Fincher.
29 We have said that "there are no bright-line rules" with
30 respect to what constitutes an adverse employment action for
31 purposes of a retaliation claim, and therefore "courts must pore
14
1 over each case to determine whether the challenged employment
2 action reaches the level of 'adverse.'" Wanamaker v. Columbian
3 Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). We are of the view
4 nonetheless that, at least in a run-of-the-mine case such as this
5 one, an employer's failure to investigate a complaint of
6 discrimination cannot be considered an adverse employment action
7 taken in retaliation for the filing of the same discrimination
8 complaint. We thus adopt the position previously taken by
9 several district courts in this Circuit. See, e.g., Thomlison v.
10 Sharp Elecs. Corp., No. 99 Civ. 9539, 2000 WL 1909774, at *4,
11 2000 U.S. Dist. LEXIS 18979, at *12-13 (S.D.N.Y. Dec. 18, 2000).
12 "Affirmative efforts to punish a complaining employee
13 are at the heart of any retaliation claim." Id., 2000 WL
14 1909774, at *4, 2000 U.S. Dist. LEXIS 18979, at *12. An employee
15 whose complaint is not investigated cannot be said to have
16 thereby suffered a punishment for bringing that same complaint:
17 Her situation in the wake of her having made the complaint is the
18 same as it would have been had she not brought the complaint or
19 had the complaint been investigated but denied for good reason or
20 for none at all. Put another way, an employee's knowledge that
21 her employer has declined to investigate her complaint will not
22 ordinarily constitute a threat of further harm, recognizing, of
23 course, that it would hardly provide a positive incentive to
24 lodge such a further challenge.
25 We do not mean to suggest that failure to investigate a
26 complaint cannot ever be considered an adverse employment action
15
1 for purposes of a retaliation claim. It can be if the failure is
2 in retaliation for some separate, protected act by the plaintiff.
3 In Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), upon which
4 Fincher relies, for example, the D.C. Circuit concluded that an
5 employer's failure to investigate a complaint of a death threat
6 against an employee that followed a complaint of discrimination
7 by the same employee was sufficient to state a claim of
8 retaliation under Title VII, id. at 1219-20. But in Rochon, the
9 refusal to respond to the employee's complaint of a death threat
10 was allegedly in retaliation for his separate and earlier
11 complaint of discrimination. The employee contended that if he
12 had never complained of discrimination, his complaint of a death
13 threat against him would have been investigated. Id. Making
14 the initial complaint allegedly resulted in the separate
15 retaliatory failure to investigate a subsequent complaint. See
16 id. at 1220 ("[A] reasonable FBI agent well might be dissuaded
17 from engaging in activity protected by Title VII if he knew that
18 doing so would leave him unprotected by the FBI in the face of
19 threats against him or his family.").7 Other cases cited by
20 Fincher similarly involve employees who allegedly suffered harms
21 resulting from, but separate from the disposition of, their
7
Of course, in Rochon, the separate complaint that was
allegedly ignored as a result of the filing of the initial
complaint was of a particularly serious nature. We need not
decide here whether an employer's failure to investigate a
complaint of discrimination in retaliation for the filing of a
separate, earlier complaint of discrimination would rise to the
level of an adverse employment action. That question is simply
not before us.
16
1 initial complaints of discrimination. See Burlington, 548 U.S.
2 at 71 (leaving for jury question of whether unwanted reassignment
3 of employee's duties following complaint of discrimination was
4 adverse employment action for purposes of retaliation claim);
5 Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 659 (7th Cir.
6 2005) (concluding that unwanted alteration of employee's work
7 schedule following complaint of discrimination was adverse
8 employment action for purposes of retaliation claim).
9 Here, by contrast, a reasonable employee in Fincher's
10 place had nothing to lose by bringing this complaint, or another
11 one following it, because the result of bringing the complaint
12 and not bringing the complaint under the conditions alleged was
13 the same: the complaint would not be investigated. No action has
14 been attributed to the defendant here except for the disposition
15 –- or lack thereof –- of the same complaint that allegedly
16 provoked the retaliatory response.
17 A contrary rule could have odd consequences. A person
18 not in fact discriminated against could complain of
19 discrimination nonetheless. If the miffed accused employer were,
20 because of his or her anger, to decline to investigate what was
21 in fact a false claim, the employee might have a viable suit for
22 retaliatory failure to investigate. We do not think that to be
23 the law.
17
1 Summary judgment dismissing Fincher's retaliation
2 claims under 42 U.S.C. § 1981 was therefore proper.8
3 B. State and City Retaliation Claims
4 The dismissal of Fincher's state- and city-law
5 retaliation claims must also be affirmed, notwithstanding that it
6 was based in part on the court's arguably incorrect view that the
7 city-law claims were to be "analyzed under the same standards as
8 § 1981." Fincher, 2008 WL 4308126, at *5, 2008 U.S. Dist. LEXIS
9 70046, at *14 (citing Conway v. Microsoft Corp., 414 F. Supp. 2d
10 450, 458 (S.D.N.Y. 2006)). New York State courts and district
11 courts in this Circuit have concluded, to the contrary, that the
12 retaliation inquiry under the CHRL is "broader" than its federal
13 counterpart. See Williams v. N.Y. City Hous. Auth., 61 A.D.3d
14 62, 71, 872 N.Y.S.2d 27, 34 (1st Dep't 2009). Under the CHRL,
15 retaliation "in any manner" is prohibited, and "[t]he retaliation
16 . . . need not result in an ultimate action with respect to
17 employment . . . or in a materially adverse change in the terms
18 and conditions of employment." N.Y.C. Admin. Code § 8-107(7);
19 see also Williams, 61 A.D.3d at 69-72, 872 N.Y.S.2d at 33-35;
20 Sorrenti v. City of New York, 17 Misc. 3d 1102(A), 851 N.Y.S.2d
8
Because we conclude that the failure to investigate a
complaint cannot be considered an adverse employment action taken
in retaliation for the filing of that same complaint, we do not
address DTCC's argument in the alternative, which the district
court also did not reach, that even if the failure to investigate
Fincher's complaint could be considered an adverse employment
action, she could not and did not demonstrate the requisite
causal connection between her filing the complaint and DTCC's
failure to investigate it to make a prima facie case of
retaliation.
18
1 61 (Table) (N.Y. Sup. Ct., N.Y. Cty. 2007) (unreported decision)
2 ("[T]he City Council enacted a less restrictive standard [than
3 the federal and state standard] to trigger a [CHRL] violation in
4 that it is now illegal to retaliate in any manner."); Pilgrim v.
5 McGraw-Hill Cos., Inc., 599 F. Supp. 2d 462, 469 (S.D.N.Y. 2009)
6 ("The prima facie standard for retaliation claims under the CHRL
7 is different [from the federal and state standard], in that there
8 is no requirement that the employee suffer a materially adverse
9 action. Instead, the CHRL makes clear that it is illegal for an
10 employer to retaliate in 'any manner.'").9
11 The functional difference, if any, between the CHRL
12 standard and that used for federal and state retaliation claims
13 has never been fully articulated. The Appellate Division, First
14 Department, has said that the CHRL "rejects a materiality
15 requirement," while under Burlington, federal retaliation claims
16 must involve an action by the employer that is "materially
17 adverse." Compare Williams, 61 A.D.3d at 71 & n.12, 872 N.Y.S.2d
18 34 & n.12, with Burlington, 548 U.S. at 68. The proper inquiry
19 under the CHRL is whether a jury could "reasonably conclude from
20 the evidence that [the complained-of] conduct [by the employer]
21 was, in the words of the [CHRL], reasonably likely to deter a
22 person from engaging in protected activity," without taking
23 account of whether the employer's conduct was sufficiently
9
The New York Court of Appeals has not yet ruled on the
issue.
19
1 deterrent so as to be "material[]." Williams, 61 A.D.3d at 71,
2 872 N.Y.S.2d 34 (internal quotation marks omitted).
3 It is unnecessary for us to determine on this appeal
4 whether or to what extent the "reasonably likely to deter"
5 standard of the CHRL differs from Burlington's "well might have
6 dissuaded" test. Fincher has not made any argument touching on
7 the CHRL in her brief or at oral argument. Thus any assertion
8 that she might have made to the effect that her retaliation claim
9 should survive the arguably broader CHRL inquiry has been
10 abandoned. See United States v. Joyner, 313 F.3d 40, 44 (2d Cir.
11 2002).
12 III. Hostile Work Environment and
13 Constructive Discharge
14 In order to establish a hostile work environment claim
15 under 42 U.S.C. § 1981, a plaintiff "must show that the workplace
16 was so severely permeated with discriminatory intimidation,
17 ridicule, and insult that the terms and conditions of her
18 employment were thereby altered." Alfano v. Costello, 294 F.3d
19 365, 373-74 (2d Cir. 2002); see also Meritor Sav. Bank, FSB v.
20 Vinson, 477 U.S. 57, 67 (1986) (plaintiff must demonstrate an
21 "abusive working environment" (internal quotation marks
22 omitted)). "A hostile working environment is shown when the
23 incidents of harassment occur either in concert or with a
24 regularity that can reasonably be termed pervasive." Lopez v.
25 S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987); accord
26 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d
27 Cir. 2000). "[T]he plaintiff must show more than a few isolated
20
1 incidents of racial enmity," Williams v. County of Westchester,
2 171 F.3d 98, 100-01 (2d Cir. 1999) (per curiam) (internal
3 quotation marks omitted), although a hostile work environment can
4 also be established through evidence of a single incident of
5 harassment that is "extraordinarily severe," Cruz v. Coach
6 Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Alfano, 294 F.3d
7 at 374.
8 Fincher argues that DTCC's failure to investigate her
9 discrimination complaint, considered in light of "the totality of
10 the circumstances," created a hostile work environment for her.
11 But the failure to investigate did not by itself alter the terms
12 and conditions of Fincher's employment; rather, it preserved the
13 very circumstances that were the subject of the complaint.
14 Therefore the failure to investigate Fincher's complaint could
15 not itself have contributed to or constituted a hostile work
16 environment. Cf. Robles v. Argonaut Rest. & Diner, Inc., No. 05
17 Civ. 5553, 2009 WL 3320858 at *8, 2009 U.S. Dist. LEXIS 96949, at
18 *27-28 (S.D.N.Y. Oct. 9, 2009) ("A hostile work environment claim
19 can succeed only if plaintiff demonstrates that the workplace was
20 so severely permeated with discriminatory intimidation, ridicule,
21 and insult that the terms and conditions of his employment were
22 thereby altered") (citing Leibovitz v. N.Y. City Transit Auth.,
23 252 F.3d 179, 188 (2d Cir. 2001)).
24 Indeed, although this Circuit has not ruled on the
25 question, in the analogous context of hostile work environment
26 claims based on allegations of sexual harassment, "[federal]
21
1 courts (including district courts in this circuit) appear to have
2 uniformly rejected the notion that a failure adequately to
3 remediate sexual harassment itself constitutes an act that may
4 contribute to a hostile work environment claim." Chan v. N.Y.
5 City Transit Auth., No. 03 Civ. 6239, 2004 WL 1812818, at *5,
6 2004 U.S. Dist. LEXIS 16370, at *15 (E.D.N.Y. July 19, 2004).
7 Fincher does not identify the facts to which her
8 phrase, "the totality of the circumstances," refers. The
9 evidence that she presented to the district court was to the
10 effect that on at least one occasion, two of her co-workers were
11 invited, without her, for unspecified training, and that on at
12 least one occasion, one of her co-workers was assigned to work
13 with a supervisor who was better qualified than Fincher’s
14 supervisor. We conclude that these sporadic events, none of
15 which was personally abusive, as a matter of law do not amount to
16 a series of abusive and pervasive incidents of discrimination,
17 nor do they include a single extraordinary one. The hostile work
18 environment claim fails.10
10
Several federal district courts, as well as the New York
Appellate Division, First Department, but not the New York Court
of Appeals, have concluded that "less egregious conduct than that
required under Title VII [or § 1981] may support a hostile work
environment claim under the []CHRL." Panzarino v. Deloitte &
Touche LLP, No. 05 Civ. 8502, 2009 WL 3539685, at *9, 2009 U.S.
Dist. LEXIS 101209, at *29 (S.D.N.Y. Oct. 29, 2009); accord
Williams, 61 A.D.3d at 79-80, 872 N.Y.S.2d at 40-41; but see
Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F.
Supp. 2d 520, 537 (S.D.N.Y. 2008) ("If New York City wanted to
remove the 'severe and pervasive' requirement [from hostile work
environment claims], it could have done so when it amended the
CHRL. It did not."). Even assuming that a hostile work
environment claim under the CHRL does not require a showing of
severe and pervasive incidents of discrimination, Fincher has
22
1 The district court also correctly granted summary
2 judgment dismissing Fincher's constructive discharge claim.
3 Fincher's complaint, which does not raise constructive discharge
4 as a separate allegation, makes clear that the acts which she
5 alleges gave rise to a hostile work environment were the same as
6 those upon which her constructive discharge claim was based.
7 Where an alleged constructive discharge stems from an alleged
8 hostile work environment, a plaintiff "must show working
9 conditions so intolerable that a reasonable person would have
10 felt compelled to resign." Pa. State Police v. Suders, 542 U.S.
11 129, 147 (2004). This standard is higher than the standard for
12 establishing a hostile work environment. Id. Because Fincher
13 failed to establish a hostile work environment, her claim of
14 constructive discharge also fails.
15 IV. Underlying Section 1981 Discrimination Claims
16
17 The district court granted summary judgment dismissing
18 Fincher's underlying section 1981 discrimination claims because
19 it concluded that Fincher had presented no evidence giving rise
20 to an inference of discrimination with respect to her training,
21 salary, or performance evaluations. On appeal, Fincher makes
22 only one argument challenging this conclusion: that the district
23 court gave insufficient consideration to her testimony about
24 Hudson's alleged admission that she had been the victim of
failed to establish a hostile work environment claim under the
CHRL because she has failed even to present evidence giving rise
to an inference of any discrimination at all.
23
1 discrimination with respect to training.11 Fincher emphasizes
2 that Hudson's alleged statements were not hearsay, although the
3 district court gave no indication that it regarded the statements
4 as being such and did not rule them inadmissible. Rather, the
5 district court appeared to disbelieve Fincher's assertion that
6 Hudson had made the statements attributed to him: "Fincher's
7 testimony that Hudson believed she and another co-worker had been
8 discriminated against is not supported by anything other than
9 Fincher's ipse dixit." Fincher, 2008 WL 4308126, at *4, 2008
10 U.S. Dist. LEXIS 70046, at *10. The district court explained
11 that Hudson denied making the statements. Id. But as a general
12 rule, a district court may not discredit a witness's deposition
13 testimony on a motion for summary judgment, because the
14 assessment of a witness's credibility is a function reserved for
15 the jury. See, e.g., Scholastic, Inc. v. Harris, 259 F.3d 73, 87
16 (2d Cir. 2001).
17 To be sure, there is an exception for "the rare
18 circumstance where the plaintiff relies almost exclusively on his
19 own testimony, much of which is contradictory and incomplete."
20 Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005); see
21 also id. at 555 (affirming grant of summary judgment dismissing
22 excessive force suit brought under 42 U.S.C. § 1983 where the
23 plaintiff relied exclusively on his own testimony, which was
24 "replete with inconsistencies and improbabilities") (internal
11
Fincher drew the connection between her argument about
Hudson's alleged admission and her underlying discrimination
claims at oral argument, although that connection was not drawn,
at least explicitly, in her brief.
24
1 quotation marks omitted); see also Shabazz v. Pico, 994 F. Supp.
2 460, 470 (S.D.N.Y. 1998) (Sotomayor, Judge) ("[W]hen the facts
3 alleged are so contradictory that doubt is cast upon their
4 plausibility, [the court may] pierce the veil of the complaint's
5 factual allegations, dispose of some improbable allegations, and
6 dismiss the claim.") (internal quotation marks omitted;
7 alterations incorporated).
8 That exception is not applicable in this case, however.
9 Fincher relies exclusively upon her own testimony for the
10 assertion that Hudson made the disputed statements, but her
11 testimony was not contradictory or rife with inconsistencies such
12 that it was facially implausible. Discrimination cases also tend
13 to be particularly ill-suited to the assessment of a plaintiff's
14 credibility at the summary judgment stage, because in such cases
15 "the only direct evidence available very often centers on what
16 the defendant allegedly said or did," and "the defendant will
17 rarely admit to having said or done what is alleged, and . . .
18 third-party witnesses are by no means always available." Danzer
19 v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998). Whether
20 Fincher and Hudson had a private conversation in which Hudson
21 made the remarks that Fincher imputes to him is a question of "he
22 said, she said," on which the court cannot, in the context of
23 this case, take a side at the summary judgment stage. Simpri v.
24 City of N.Y., No. 00 Civ. 6712, 2003 WL 23095554, at *8, 2003
25 U.S. Dist. LEXIS 23266, at *26 (S.D.N.Y. Dec. 30, 2003); see
26 also, e.g., EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 924
25
1 (8th Cir. 2002) ("Although a jury might believe [the defendants]
2 and disbelieve [the plaintiff], we cannot wholly dismiss [one of
3 the defendant's] alleged [age-based comments] at the summary
4 judgment stage."). Fincher's testimony that Hudson made the
5 remarks is not conclusory or speculative,12 as was the
6 plaintiff's testimony in the case relied upon by the district
7 court in disregarding the remarks, see Gonzalez v. Beth Israel
8 Med. Ctr., 262 F. Supp. 2d 342, 353 (S.D.N.Y. 2003) ("Gonzalez's
9 conclusory and speculative assertions that [her time records were
10 tampered with] are not enough to withstand summary judgment."),
11 because Fincher was testifying to the content of a conversation
12 at which she was allegedly present. Adhering to the ordinary
13 rule that when the defendant moves for summary judgment, we
14 construe the evidence in the light most favorable to the
15 plaintiff and draw all reasonable inferences in her favor,
16 Allianz Ins. Co., 416 F.3d at 113, we decline to conclude at this
17 stage of the proceedings that Fincher's testimony may be deemed
18 discredited.
19 Although we thus accept for purposes of this appeal
20 that Fincher’s account of her conversation with Hudson is
21 accurate, we conclude that his remarks do not provide an adequate
22 evidentiary basis for the denial of the motion for summary
23 judgment. Summary judgment cannot be defeated by the
24 presentation by the plaintiff of but a "scintilla of evidence"
25 supporting her claim. Anderson v. Liberty Lobby, Inc., 477 U.S.
12
That is not to say that Hudson's alleged remarks
themselves were not conclusory. See infra.
26
1 242, 252 (1986). "[The] preliminary question for the judge [is]
2 not whether there is literally no evidence, but whether there is
3 any upon which a jury could properly proceed to find a verdict
4 for the party producing it, upon whom the onus of proof is
5 imposed." Id. at 251 (internal quotation marks and emphasis
6 omitted). Hudson's alleged remarks are at best just such a
7 "scintilla" in light of their offhand, conclusory nature and the
8 lack of further support in the record for Fincher's claim.
9 The disputed remarks were, moreover, a purported
10 concession that Fincher was discriminated against; they were not
11 themselves discriminatory.13 Summary judgment might not have
12 been justified were Hudson's alleged remarks themselves imbued
13 with discriminatory animus, rather than a report of purportedly
14 discriminatory action. See, e.g., Forman v. Small, 271 F.3d 285,
15 293 (D.C. Cir. 2001) (concluding that plaintiff satisfied prima
16 facie burden in age discrimination case by, among other things,
17 presenting evidence of alleged statements by decision makers that
18 he was "over the hill" or "in the twilight of his career," and
19 explaining that "when decision makers, or those who have input
20 into the decision, express such discriminatory feelings around
21 the relevant time in regard to the adverse employment action
13
Moreover, even as a purported concession the disputed
remarks were indirect, with Hudson referring vaguely to the
discriminatory motives of others at the company, not his own, as
compelling his actions toward Fincher. Cf. Lewis v. City of
Chicago, 496 F.3d 645, 651 (7th Cir. 2007) (reversing grant of
summary judgment where, among other things, plaintiff's
supervisor allegedly admitted to her that he had denied her a
certain employment opportunity on the basis of his own
prejudices).
27
1 complained of, then it may be possible to infer that the decision
2 makers were influenced by those feelings in making their
3 decisions" (internal quotation marks omitted)). The district
4 court correctly concluded that there was insufficient evidence of
5 discrimination to permit the action to go to trial.
6 CONCLUSION
7 For the foregoing reasons, we affirm the judgment of
8 the district court.
28