Preston v. Bristol Hospital

15-1150
Preston v. Bristol Hospital

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,
4 on the 31st day of March, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 DUSTI PRESTON,
13 Plaintiff-Appellant,
14
15 -v.- 15-1150
16
17 BRISTOL HOSPITAL,
18 Defendant-Appellee.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: Megan L. Piltz, James V.
22 Sabatini, Sabatini & Associates,
23 LLC, Newington, Connecticut.
24
25 FOR APPELLEE: Susanne Kantor, Greg A. Riolo,
26 Jackson Lewis P.C., White
27 Plains, New York.
28

1
 1 Appeal from a judgment of the United States District
2 Court for the District of Connecticut (Chatigny, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Plaintiff Dusti Preston appeals from the judgment of
9 the United States District Court for the District of
10 Connecticut (Chatigny, J.), granting summary judgment in
11 favor of defendant-appellee Bristol Hospital (the
12 “Hospital”) and dismissing Preston’s claims arising under
13 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
14 et seq. (“Title VII”); the Americans with Disabilities Act,
15 42 U.S.C. § 12101 et seq. (“ADA”); and the Connecticut Fair
16 Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq.
17 (“CFEPA”). Preston was formerly employed by the Hospital as
18 a CAT Scan Technician. She contends that the Hospital
19 subjected her to sex-plus, marital status, and disability
20 discrimination, and retaliation. We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history, and the issues presented for review.
23
24 We review de novo a district court’s grant of summary
25 judgment, “viewing the record in the light most favorable to
26 the non-moving party.” Dillon v. Morano, 497 F.3d 247, 251
27 (2d Cir. 2007). Summary judgment is appropriate where
28 “there is no genuine dispute as to any material fact and the
29 movant is entitled to judgment as a matter of law.” Fed. R.
30 Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists
31 where the evidence is such that a reasonable jury could
32 decide in the non-movant’s favor.” Delaney v. Bank of Am.
33 Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam)
34 (ellipsis omitted) (quoting Beyer v. Cty. of Nassau, 524
35 F.3d 160, 163 (2d Cir. 2008)). “[C]onclusory statements or
36 mere allegations [are] not sufficient to defeat a summary
37 judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d
38 Cir. 2002).
39
40 Preston’s claims are analyzed pursuant to the McDonnell
41 Douglas burden-shifting framework. See McDonnell Douglas
42 Corp v. Green, 411 U.S. 792, 802-05 (1973) (Title VII
43 discrimination); Kaytor v. Elec. Boat Corp., 609 F.3d 537,
44 556 (2d Cir. 2010) (CFEPA discrimination and retaliation);

2
 1 Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.
2 2006) (ADA discrimination); Terry v. Ashcroft, 336 F.3d 128,
3 141 (2d Cir. 2003) (Title VII retaliation). “A plaintiff
4 must establish a prima facie case; the employer must offer
5 through the introduction of admissible evidence a legitimate
6 non-discriminatory reason for the [adverse employment
7 action]; and the plaintiff must then produce evidence and
8 carry the burden of persuasion that the proffered reason is
9 a pretext.” Sista, 445 F.3d at 169. Preston contends that
10 she experienced several adverse employment actions, and that
11 each was motivated by various bases of discrimination and/or
12 retaliation.
13
14 1. MediTech Team/SuperUser Status: Preston contends
15 that the Hospital denied her a position on the 2011 MediTech
16 team because of her sex and marital status–-and more
17 specifically, her status as a single mother, which is the
18 theory behind both of these claims. The district court
19 concluded that a reasonable jury could not find that Preston
20 was subjected to an adverse employment action when denied a
21 position on the 2011 MediTech team (i.e., denied SuperUser
22 status). We agree. “We define an adverse employment action
23 as a ‘materially adverse change’ in the terms and conditions
24 of employment.” Sanders v. N.Y.C. Human Res. Admin., 361
25 F.3d 749, 755 (2d Cir. 2004) (quoting Richardson v. N.Y.S.
26 Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)).
27 SuperUsers trained other members of the department to use
28 the new MediTech software. But being termed a “SuperUser”
29 did not constitute a promotion or new position; the role did
30 not warrant any additional compensation; and once everybody
31 had learned the software, the group “faded out” of
32 existence. J.A. 133. Cf. Terry, 336 F.3d at 139 (failure
33 to promote constitutes an adverse employment action (citing
34 Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)).
35
36 Even if the “little bit more access” or “little bit
37 more training” that SuperUsers had regarding the software
38 was sufficiently material such that denial of SuperUser
39 status amounted to an adverse action, it is undisputed that
40 Preston was asked by Heidi McLam, her direct supervisor, to
41 become a SuperUser; additionally, Preston testified that she
42 considered herself to be a SuperUser and trained other
43 employees on the MediTech software. Accordingly, Preston
44 has not raised a genuine issue of fact as to whether she was

3
 1 denied this status or these privileges.1 J.A. 369; see Br.
2 of Appellant at 19.
3
4 2. Failure to Accommodate & Hostile Work Environment:
5 In July 2011, Preston learned that she had a stress fracture
6 in her foot. She was required to wear a “boot”-style cast
7 for ten weeks, and was put on “light duty,” which meant that
8 she could not transport patients in wheelchairs or
9 stretchers. Preston contends that the Hospital
10 discriminated against her on the basis of disability by
11 failing to provide a reasonable accommodation by providing
12 transporters, and by creating a hostile work environment.
13 These claims too fail for lack of an adverse employment
14 action.2
15
16 The record undisputedly establishes that other staff
17 members were available to transport patients during
18 Preston’s weekday shifts; and when it was Preston’s turn to
19 work on a weekend, she would inform Al Lamptey, her
20 supervisor, who would provide a transporter. Preston

1
In Preston’s view, being on the MediTech team was
“the same thing” as being a SuperUser. However, to the
extent that Preston separately challenges her failure to be
placed on the MediTech implementation team in May 2010, when
the Hospital first decided to purchase and implement the
software, her claims are time-barred. Preston filed charges
with the Equal Employment Opportunity Commission (“EEOC”)
and Connecticut Commission on Human Rights and Opportunities
(“CCHRO”) on January 6, 2012; so she may not challenge under
Title VII or CFEPA any alleged adverse actions that occurred
prior to March 12, 2011. See 42 U.S.C. § 2000e-5(e)(1)
(charge must be filed with EEOC within 300 days of allegedly
unlawful employment practice when charge is also filed with
state or local agency); Conn. Gen. Stat. § 46a-82(f)
(complaint must be filed with CCHRO within 180 days of
challenged act of discrimination).
2
The district court held that Preston’s foot injury
did not satisfy the definition of disability under the ADA
or CFEPA. Because we affirm the district court’s
alternative holding (that there was neither a failure to
accommodate nor a hostile work environment), we need not
decide the question.
4
 1 alleges that “[s]ometimes [she] did not have transportation
2 help,” Br. of Appellant at 8, but she does not identify any
3 instance in which this occurred, see Major League Baseball
4 Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.
5 2008) (“A party opposing summary judgment does not show the
6 existence of a genuine issue of fact to be tried merely by
7 making assertions that are conclusory . . . .”); and she
8 does not contend that she was ever required to transport a
9 patient in contravention of her restriction. Accordingly,
10 Preston has raised no genuine issue of fact with respect to
11 the Hospital’s alleged failure to provide a reasonable
12 accommodation.
13
14 Nor has Preston submitted evidence sufficient to show a
15 hostile work environment,3 i.e., that her workplace was “so
16 severely permeated with discriminatory intimidation,
17 ridicule, and insult that the terms and conditions of her
18 employment were thereby altered.” Desardouin v. City of
19 Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (quoting Alfano
20 v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002)).
21 Moreover, she does not challenge the district court’s
22 conclusion on this point, so any argument is waived. See
23 Norton v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir. 1998).
24
25 3. Termination: Preston contends that her
26 termination in October 2011 was motivated by discrimination
27 on the basis of her sex, marital status, and disability; and
28 retaliation for complaints of prior discrimination.4 The
29 Hospital asserts that Preston was fired because she refused
30 to work or arrange coverage for a mandatory weekend shift
31 based on a rotating assignment schedule. Even assuming that
32 Preston could establish her prima facie case as to any
33 claim, we agree with the district court that she has not
34 submitted evidence from which a reasonable jury could find
35 that the proffered reason for the termination (which is
36 undisputed) was pretext for discrimination or retaliation.

3
We assume that a hostile work environment claim is
cognizable under the ADA. See Giambattista v. Am. Airlines,
Inc., 584 F. App’x 23, 25 & n.1 (2d Cir. 2014) (summary
order).
4
When deposed, however, Preston did not contend that
her termination was retaliatory.
5
 1 As the district court explained, Preston’s claims of
2 pretext “are rendered implausible by the undisputed fact
3 that another full-time CAT Scan Technician, Michele Gore,
4 was terminated the same day, by the same people, for failing
5 to find coverage for the same weekend shift.” Preston v.
6 Bristol Hosp., No. 3:12-cv-1252(RNC), 2015 WL 1456764, at *8
7 (D. Conn. Mar. 30, 2015). Preston does not contend that
8 Gore is a single mother or disabled, or that Gore ever
9 complained of discriminatory treatment; instead, Preston
10 contends that her refusal to work was justified while Gore’s
11 was not. But “evidence that an employer made a poor
12 business judgment in discharging an employee generally is
13 insufficient to establish a genuine issue of fact as to the
14 credibility of the employer’s reasons. . . . [T]he reasons
15 tendered need not be well-advised, but merely truthful.”
16 Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir.
17 1988) (citation omitted); see also Delaney v. Bank of Am.
18 Corp., 766 F.3d 163, 169 (2d Cir. 2014) (“While we must
19 ensure that employers do not act in a discriminatory
20 fashion, we do ‘not sit as a super-personnel department that
21 reexamines an entity’s business decisions.’” (quoting Scaria
22 v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997))). What matters
23 here is that “both women refused to work a required shift
24 for a legally unprotected personal reason,” and were
25 terminated.5 6 Preston, 2015 WL 1456764, at *8.
26
27 Preston asserts that the credibility of the Hospital’s
28 nondiscriminatory rationale is undermined by (1) “differing
29 explanations” for her termination and (2) an alleged failure

5
Of course, “it is discriminatory treatment of a given
individual that matters.” Brown v. Henderson, 257 F.3d 246,
253 (2d Cir. 2001). See Br. of Appellant at 43. The
Hospital’s similar treatment of Gore and Preston therefore
undermines Preston’s allegation that the proffered reason
for Preston’s termination was pretextual.
6
Notwithstanding Preston’s arguments to the contrary,
she has not “provided evidence that a person outside
Plaintiff’s protected group [Donna Santopietro] was
permitted to miss a [required] shift.” Br. of Appellant at
45. It is undisputed that Santopietro was not subject to
the mandatory weekend coverage rotation, because she worked
part-time.
6
 1 to follow its own written policies, which (according to
2 Preston) require progressive discipline in all cases, and
3 therefore bar immediate termination. Br. of Appellant at
4 39-42. But there is nothing inconsistent about the
5 statements to which Preston points; they are all consistent
6 with Preston being terminated for her refusal to work a
7 required shift, knowing the consequences. And the
8 discipline policy on its face does contemplate “immediate
9 discharge, depending on the seriousness of the offense in
10 the judgment of Management and consultation with Human
11 Resources if needed.” J.A. 396; see also id. 400.
12
13 For pretext, Preston also relies on comments allegedly
14 made by Marie Marciano (a supervisor) and Shana Loitz (a co-
15 worker) about Preston’s status as a single parent in the
16 context of Preston’s failure to be placed on the MediTech
17 team. The comments were not related to Preston’s
18 termination or proximate in time. Moreover, there is no
19 evidence that Marciano or Loitz had any involvement in
20 Preston’s termination; the decision was made by the
21 Hospital’s Vice President of Human Resources, Jeanine
22 Reckdenwald, in consultation with Lamptey and McLam.
23 Therefore, the statements are not probative of the
24 Hospital’s motivation for that termination. See Henry v.
25 Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010)
26 (framework for determining whether comments are probative of
27 bias).7

7
Preston does not appear to contend that comments made
by Lamptey regarding Preston’s foot injury and need for a
transporter can establish pretext. But to the extent that
she does, they are also insufficiently probative. Preston
testified that Lamptey stated: “What did you have to go and
get it X-rayed for anyway”; “[w]ell, this is becoming a
habit”; “[t]his is becoming a bad habit”; “[w]e can’t afford
it”; and, on an occasion Preston slipped and fell, “[c]an’t
you stay off the floor.” J.A. 180-82, 322. The comments
were not made in the context of Preston’s termination, which
occurred several weeks after Preston was back to full duty.
Even if they were sufficient to raise an inference of
discrimination for a prima facie case (which we do not
decide), the lack of connection to Preston’s termination (in
time or context) renders them insufficient to raise a
genuine dispute regarding pretext.
7
1 For the foregoing reasons, and finding no merit in
2 Preston’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8

8