15‐1907
Fahrenkrug v. Verizon, et al.
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.
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 17th day of June, two thousand and
sixteen.
PRESENT: JON O. NEWMAN,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________
SUSAN FAHRENKRUG,
Plaintiff‐Appellant,
v. No. 15‐1907
VERIZON SERVICES CORPORATION,
KEVIN VAN INWEGEN, MATTHEW
FORLENZA, CAROL FRASCO, JANE
AND JOHN DOES,
Defendants‐Appellees,
CELLCO PARTNERSHIP, VERIZON
NEW YORK, INC.,
Defendant.
______________________
FOR PLAINTIFF‐APPELLANT: A.J. BOSMAN, Bosman Law Firm, Rome,
NY.
FOR DEFENDANTS‐APPELLEES: SCOTT H. CASHER (George C. Morrison,
on the brief), White and Williams LLC,
Pleasantville, NY.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Sannes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiff‐Appellant Susan Fahrenkrug (“Plaintiff”) appeals from an Order
of the United States District Court for the Northern District of New York (Sannes,
J.) granting a motion for summary judgment by Defendants‐Appellees Verizon
Services Corp. (“Verizon”) and several individuals (collectively with Verizon,
“Defendants”), and dismissing Plaintiff’s amended complaint in its entirety with
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prejudice. Plaintiff also seeks review of the District Court’s partial denial of a
previously filed motion to compel discovery.1
At the outset, we note that Plaintiff has waived certain arguments she
pursued below by failing to raise them on appeal. We thus consider only the
following claims: (1) disparate treatment on the basis of gender in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the New York State Human Rights Law, Exec. Law § 290 et seq.
(“NYSHRL”); (2) retaliation in violation of Title VII and the NYSHRL; and (3)
certain discovery rulings by the District Court.2
1 We review de novo a district court’s grant of summary judgment, construing the
evidence in the light most favorable to the non‐moving party. Tenenbaum v. Williams,
193 F.3d 581, 593 (2d Cir. 1999). The function of this Court is not to “weigh the evidence
and determine the truth of the matter,” but instead only to determine whether “there
are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Perreca v. Gluck, 295
F.3d 215, 220 (2d Cir. 2002) (internal quotation marks omitted).
A district court’s discovery rulings “are reversed only upon a clear showing of an abuse
of discretion.” Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992). An abuse of
discretion occurs only if the ruling is based on an erroneous view of the law, a clearly
erroneous assessment of the evidence, or results in a decision that “cannot be located
within the range of permissible decisions.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d
Cir. 2010) (internal quotation marks omitted).
We assume the parties’ familiarity with the facts and record below, which we reference
only as necessary to explain our decision.
2 Like the District Court, we reject Plaintiff’s affidavit insofar as it contains inadmissible
hearsay and contradicts Plaintiff’s prior sworn deposition testimony. See Special App.
19 n.1. A party may not defeat a motion for summary judgment by submitting an
3
To establish a prima facie case of gender discrimination under Title VII
and the NYSHRL,3 a plaintiff must demonstrate: (1) membership in a protected
class; (2) satisfactory job performance; (3) an adverse employment action; and (4)
circumstances surrounding the employment action that give rise to an inference
of discrimination. Montana v. First Fed. Sav. & Loan Ass’n of Rochester, 869 F.2d
100, 106–07 (2d Cir. 1989); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05 (1973). Failure to establish any one of these necessary elements mandates
dismissal of the plaintiff’s complaint. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d
81, 86 (2d Cir. 1996).
An adverse employment action is “a materially adverse change in the
terms and conditions of employment.” Sanders v. NYC Human Res. Admin., 361
F.3d 749, 755 (2d Cir. 2004) (internal quotation marks omitted). “Employment
actions that [this Court has] deemed sufficiently disadvantageous to constitute
an adverse employment action include a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material
affidavit that disputes or contradicts prior sworn testimony. See Trans‐Orient Marine
Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). Similarly, affidavits
submitted to defeat summary judgment “must be admissible themselves or must
contain evidence that will be presented in an admissible form at trial.” Santos v.
Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (per curiam).
We apply the same analytical framework to review claims under Title VII and the
3
NYSHRL. Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010).
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loss of benefits, significantly diminished material responsibilities, or other
indices unique to a particular situation.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163
(2d Cir. 2008) (alteration and internal quotation marks omitted).
A plaintiff may raise an inference of discrimination by showing disparate
treatment, i.e., by showing that his employer “treated him less favorably than a
similarly situated employee outside his protected group.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000). “When considering whether a plaintiff has
raised an inference of discrimination by showing that she was subjected to
disparate treatment, we have said that the plaintiff must show she was ‘similarly
situated in all material respects’ to the individuals with whom she seeks to
compare herself.” Id. (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64
(2d Cir. 1997)). “As a general rule, whether [employee]s are similarly situated is
a factual issue that should be submitted to the jury. This rule is not absolute,
however, and a court can properly grant summary judgment where it is clear
that no reasonable jury could find the similarly situated prong met.” Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (citation
omitted).
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For substantially the reasons stated by the District Court, we find that
Plaintiff failed to make out a prima facie case of gender discrimination.
Specifically, we conclude that Plaintiff failed to prove circumstances surrounding
adverse employment actions that give rise to an inference of gender
discrimination. Despite her claims of disparate treatment, Plaintiff did not
submit any evidence pertaining to her male peers’ job duties, assignments,
bonuses, or salary increases. With regard to Plaintiff’s termination after she
declined to move to Tampa, we agree with the District Court that “Plaintiff has
failed to adduce any evidence to create a material issue of fact with respect to
Forlenza’s explanation that he attempted to find her a new position in her
geographic area, just as he attempted to find positions for Driscoll and Johnson.”
Special App. 50. Plaintiff thus has not shown that she was treated “less favorably
than a similarly situated employee outside [her] protected group.” Graham, 230
F.3d at 39.
For similar reasons, we affirm the District Court’s ruling that Plaintiff’s
retaliation claims fail. In addition to retaliatory discharge, Plaintiff argued that
Defendants retaliated for her gender discrimination complaints by ignoring those
complaints and then monitoring or recording the computer that she used at
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work. We find that the District Court properly dismissed these claims on the
basis that “[t]hese allegations, even if true, do not show an adverse employment
action” and that “failure to investigate an employee’s complaint is not retaliation
for filing that same complaint.” Special App. 60 (citing Fincher v. Depository Trust
& Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)).
Finally, we find that the District Court did not abuse its discretion in
making any of the discovery rulings that Plaintiff challenges on appeal. The
District Court properly exercised its discretion in allowing Defendants the
opportunity to supplement their privilege log and submit documents for in
camera review. The District Court also found properly, based upon this in camera
review and firmly established case law concerning work product privilege, that
each of the individually withheld communications were “clearly addressed
under the supervision of the legal department [and made] in anticipation of
litigation.” App. 419. Lastly, the District Court did not abuse its discretion in
denying Plaintiff’s request for company‐wide discovery on the basis that this
request was overly broad.
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We have considered all of Plaintiff’s remaining arguments and find them
to be without merit.4 We see no material factual dispute on the record barring
judgment as a matter of law, and thus we AFFIRM the judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4 Because we find that Plaintiff failed to establish a prima facie case of gender
discrimination, we need not consider any further steps under the McDonnell‐Douglas
burden‐shifting analysis.
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