08-2703-cv
Mass v. Equinox Fitness Club, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).”
A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH
THE PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY O RDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY
A C C E S S IB L E W I T H O U T P A Y M E N T O F F E E (S U C H A S T H E D A T A B A S E A V A IL A B L E A T
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1st day of December, two thousand nine.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges,
John F. Keenan, *
District Judge.
__________________________________________
Alex Mass, Jaisiin Bethea, Freddie Gonzalez, Jason Guishard, Omar Harris, and Rodney
Vanterpool,
Plaintiffs-Appellants,
v. 08-2703-cv
Equinox Fitness Club, Equinox Holdings, Inc., The Equinox Group, Inc., Equinox Columbus
Circle, Inc., Broadway Equinox, Inc., Equinox 63rd Street, Inc., Equinox Wall Street, Inc.,
Equinox Greenwich Avenue, Inc., Equinox Tribeca, Inc., Denise Berg,
Defendants-Appellees.
__________________________________________
*
John F. Keenan, of the United States District Court for the Southern District of New
York, sitting by designation.
FOR PLAINTIFFS-APPELLANTS: Alex Mass, pro se, Woodbridge, VA
Jaisiin Bethea, pro se, Bronx, NY
Freddie Gonzalez, pro se, New York, NY
Jason Guishard, pro se, Clemson, SC
Omar Harris, pro se, New York, NY
Rodney Vanterpool, pro se, Bronx, NY
FOR DEFENDANTS-APPELLEES: Allan S. Bloom, Paul, Hastings, Janofsky &
Walker, LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Rakoff, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Appellant Alex Mass, pro se, appeals the district court’s grant of the Defendants’ motion
for summary judgment, dismissing a complaint alleging gender discrimination in violation of
Title VII, the New York State Human Rights Law (“NYSHRL”), and the New York City Human
Rights Law (“NYCHRL”).1 We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo and focus on whether the district
court properly concluded that there was no genuine issue as to any material fact and the moving
party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abrams, L.L.P., 321
1
Alex Mass filed the instant notice of appeal along with Jaisiin Bethea, Freddie
Gonzalez, Jason Guishard, Omar Harris, and Rodney Vanterpool, all of whom were Plaintiffs in
the district court proceedings. However, only Mass filed a brief in this Court, which the other
Plaintiffs did not join. As a result, this Court ordered the other Plaintiffs to show cause why their
appeal should not be dismissed based on their failure to file a brief; those Plaintiffs did not
respond to that order. Accordingly, we dismiss the appeal as to those Plaintiffs for failure to
prosecute. See Fed. R. App. P. 3(a)(2) (“An appellant’s failure to take any step other than the
timely filing of a notice of appeal . . . is ground . . . for the court of appeals to act as it considers
appropriate, including dismissing the appeal.”). Additionally, to the extent Mass attempts to
assert claims on appeal on behalf of those other Plaintiffs, he is barred from doing so because he
is a non-attorney. See 28 U.S.C. § 1654; Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d
Cir. 1990).
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F.3d 292, 300 (2d Cir. 2003); Republic Nat’l Bank v. Delta Airlines, 263 F.3d 42, 46 (2d Cir.
2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999). In determining whether
there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all
permissible inferences in favor of the party against whom summary judgment is sought.” Terry
v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal citations omitted).
Even construing, as we must, all the facts in Mass’s favor, the record confirms that his
claims fail as a matter of law. As a general rule, it is “axiomatic that in order to establish a sex-
based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct
occurred because of [his] sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002); accord
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (citing Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79-80 (1998)). To do so, a plaintiff must present, at a minimum,
circumstantial evidence from which a discriminatory intent can be inferred. See Schiano v.
Quality Payroll Systems, Inc., 445 F.3d 597, 603 (2d Cir. 2006) (internal quotations omitted).
Here, although the record evidences a wholly inappropriate work environment, Mass fails to
present any facts suggesting that the sexual activities occurred because of his gender, or that
Equinox’s alleged failure to respond to those activities – or to otherwise prohibit their occurrence
– stemmed from a discriminatory intent. Accordingly, Mass’s hostile work environment claim
fails as a matter of law, and, consequently, so do his remaining claims. See Pennsylvania State
Police v. Suders, 542 U.S. 129, 143 (2004) (where an alleged constructive discharge results from
a hostile work environment, plaintiff must establish the latter in order to pursue a claim for the
former); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2002) (“Our consideration of
claims brought under the state and city human rights laws parallels the analysis in Title VII
claims.”).
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We have considered all of Mass’s claims of error and determined them to be without
merit. Therefore, there is no basis on which to challenge the judgment of the district court.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:__________________________
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