16-969-cv
Dickens v. Hudson Sheraton Corp., 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 4th day of May, two thousand and seventeen.
Present:
PETER W. HALL,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
ERNEST DICKENS,
Plaintiff-Appellant,
v. 16-969-cv
HUDSON SHERATON CORPORATION LLC, TOM
MITUZAS, ORLANDO TRINIDAD, GEOFFREY HORNER,
Defendants-Appellees,
JOURDAIN FRANCOIS,
Defendant.
For Appellant: AMBROSE W. WOTORSON, New York, New York.
For Appellees: ALFRED N. METZ, Norris McLaughlin & Marcus, P.A., New
York, New York.
1
16-969-cv
Dickens v. Hudson Sheraton Corp., et al.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Peck, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-Appellant Ernest Dickens appeals a grant of summary judgment in
favor of Defendants-Appellees on Dickens’s discrimination and retaliation claims
under Title VII, the Age Discrimination in Employment Act (“ADEA”), and 42
U.S.C. § 1981. We assume the parties’ familiarity with the underlying facts, the
procedural history, the district court’s rulings, and the arguments presented on
appeal.
We review a grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmovant and drawing all reasonable inferences in his
favor. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223–24 (2d Cir.
1994). Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
Although Dickens’s complaint asserted a number of discrimination claims, on
appeal he challenges the district court’s award of summary judgment only with
respect to his retaliation claims. Accordingly, we deem the discrimination claims
abandoned. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001).
2
16-969-cv
Dickens v. Hudson Sheraton Corp., et al.
Section 704(a) of Title VII makes it unlawful for an employer to retaliate
against an individual either “because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e–3(a); Townsend v. Benjamin
Enterprises, Inc., 679 F.3d 41, 48 (2d Cir. 2012). In order to state a prima facie case
of retaliation, a plaintiff must show that (1) she engaged in protected activity; (2)
the defendant knew of this protected activity; (3) she suffered an adverse
employment action; and (4) a causal connection exists between the protected
activity and the adverse employment action. Littlejohn v. City of New York, 795
F.3d 297, 315–16 (2d Cir. 2015).
Dickens contends that he was retaliated against for his participation in a
union-sponsored November 2013 meeting in which he “was attempting to oppose
what he reasonably viewed as on-going discrimination,” Appellant’s Br. at 17, which
he asserts constitutes protected activity under Title VII. He argues that Mituzas’s
“intimidation and threatening behavior” at that meeting and Dickens subsequently
being denied bartending shifts were the adverse employment action. Id. at 18–20.
We disagree.
It is well-established that a plaintiff sustains an adverse employment action
if he or she endures a “materially adverse change” in the terms and conditions of
employment. Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). To be
“materially adverse” a change in working conditions must be “more disruptive than
3
16-969-cv
Dickens v. Hudson Sheraton Corp., et al.
a mere inconvenience or an alteration of job responsibilities.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). For example, “[a] materially
adverse change might be indicated by a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities or other indices . . .
unique to a particular situation,” may constitute an adverse employment action. Id.
The anti-retaliation provisions of federal discrimination laws do contemplate
that conduct that “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination” may be a materially adverse action against a
worker. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). But this
“refers to material adversity to separate significant from trivial harms” because
“[a]n employee’s decision to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances that often take place at
work and that all employees experience.” Id.
Mituzas’s alleged outburst at the November 2013 meet did not constitute a
material adversity to Dickens, because it did not concern or affect Dickens’s
employment status. Nor did it reach the level of dissuading a reasonable worker
from making a complaint. It therefore cannot amount to an adverse employment
action. Furthermore, although Dickens charges that he was denied bartending
shifts after the meeting, he has alleged no connection between the November 2013
meeting and later denials of bartending shifts. Though a plaintiff “can indirectly
establish a causal connection to support a . . . retaliation claim by showing that the
4
16-969-cv
Dickens v. Hudson Sheraton Corp., et al.
protected activity was closely followed in time by the adverse [employment] action,”
Dickens has not provided enough information to even draw that indirect inference
here. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).
Summary judgment in favor of the defendants was thus proper on the retaliation
claims.
We have considered Dickens’s remaining arguments and find them to be
without merit.
The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5