17-1550
Busby v. Syracuse City Sch. Dist.
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 ASUMMARY ORDER@). A PARTY CITING TO 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 16th day of March, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
Circuit Judge,
JESSE M. FURMAN,*
District Judge.
__________________________________________
Pamela Busby,
Plaintiff-Appellant,
v. 17-1550
Syracuse City School District, Talent Management,
Defendant-Appellee.
__________________________________________
* Judge Jesse M. Furman, of the United States District Court for the Southern District of New
York, sitting by designation.
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FOR PLAINTIFF-APPELLANT: Pamela Busby, pro se, Syracuse, NY.
FOR DEFENDANT-APPELLEE: Miles G. Lawlor, Ferrara Fiorenza PC, East
Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Kahn, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Pamela Busby, proceeding pro se, appeals from the district court’s grant of
summary judgment to the Syracuse City School District (the “School District”) in her employment
discrimination action. Busby, an African-American woman, claimed that she was subject to
disparate treatment and a hostile work environment under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., because of her race and sex. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
“We review de novo a district court’s grant of summary judgment after construing all
evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Sotomayor
v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). “Summary judgment is appropriate if
there is no genuine dispute as to any material fact and the moving party is entitled to judgment as
a matter of law.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). We conclude
on the record before us that the district court properly granted summary judgment for the School
District dismissing Busby’s claims.
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To make out a prima facie case of discrimination under Title VII, a plaintiff has the burden
of establishing that (1) she is a member of a protected class; (2) she performed the job satisfactorily
or was qualified for the position; (3) an adverse employment action took place; and (4) the action
occurred under circumstances giving rise to an inference of discrimination. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Shumway v. United Parcel Serv., Inc., 118
F.3d 60, 63 (2d Cir. 1997). A plaintiff cannot establish a prima facie case based on “purely
conclusory allegations of discrimination, absent any concrete particulars.” See Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985).
Busby has failed to introduce admissible evidence showing she was terminated under
circumstances giving rise to an inference of discrimination. Even accepting as true Busby’s
allegations that her supervisor misreported the events leading up to her termination, Busby failed
to put forth any evidence that her supervisor criticized her because she was an African-American
woman. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (“[M]ere
speculation and conjecture is insufficient to preclude the granting of [summary judgment.]”).
Moreover, while a plaintiff can establish an inference of discrimination where an employer treated
him or her “less favorably than a similarly situated employee outside his protected group,” Busby
has not shown here that “she was similarly situated in all material respects to the individuals with
whom she seeks to compare herself.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).
Her Title VII claim accordingly must fail.
We likewise conclude that the district court properly dismissed Busby’s hostile work
environment claim. To establish a claim of a hostile work environment, a plaintiff must show
that “the workplace was permeated with discriminatory intimidation that was sufficiently severe
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or pervasive to alter the conditions of his or her work environment.” Petrosino v. Bell Atl., 385
F.3d 210, 221 (2d Cir. 2004) (internal quotation marks and brackets omitted).
Busby’s hostile work environment claim was based on her supervisor’s criticisms and
statements that she was “too busy” to listen to Busby. These incidents do not rise to the level of
a hostile work environment. See Demoret v. Zegarelli, 451 F.3d 140, 150 (2d Cir. 2006) (holding
that allegations that the defendant was “mild[ly] rude[]” were insufficient as a matter of law to
meet the threshold for a hostile work environment). And, as with Busby’s disparate treatment
claims, there is no evidence that Busby’s race or sex motivated her supervisor to treat her poorly.
See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (“[I]t is axiomatic that in order to establish
a [protected characteristic]-based hostile work environment under Title VII, a plaintiff must
demonstrate that the conduct occurred because of her [protected characteristic].” (internal
quotation marks omitted)). Thus, the claim was properly dismissed.
We have considered all of Busby’s arguments and find in them no basis for reversal or
vacatur. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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