11-822-cv
McKinney v. Dep't of Transp.
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.
PRESENT: RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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DAPHNE MCKINNEY,
Plaintiff-Appellant,
-v.- 11-822-cv
DEPARTMENT OF TRANSPORTATION, STATE OF
CONNECTICUT, LISA TILUM, MICHAEL SANDERS,
DENNIS JOLLY, KATHLEEN KARWICK, VICKI
ARPIN, in their individual capacities,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: W. MARTYN PHILPOT, JR., Law Offices
of W. Martyn Philpot, Jr., PLLC,
New Haven, Connecticut.
FOR DEFENDANTS-APPELLANTS: JOSEPH JORDANO, Assistant Attorney
General (Eleanor May Mullen,
Assistant Attorney General, on the
brief), for George Jepsen, Attorney
General of the State of
Connecticut, Hartford, Connecticut.
Appeal from a judgment of the United States District
Court for the District of Connecticut (Eginton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Daphne McKinney appeals from the
district court's judgment entered on February 9, 2011, pursuant
to: (1) its May 11, 2010, ruling on McKinney's motion for
reconsideration, partially adhering to and partially vacating its
December 2, 2009, grant of summary judgment to defendants-
appellees the Department of Transportation for the State of
Connecticut (the "DOT") and six DOT employees; and (2) a February
4, 2011, jury verdict in favor of defendants. We assume the
parties' familiarity with the underlying facts, the procedural
history, and the issues presented for review.
McKinney, a former DOT employee, sued defendants for
race discrimination, hostile work environment, wrongful
termination, intentional infliction of emotional distress, and
negligence under 42 U.S.C. §§ 1981, 1983, Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq., and Connecticut common
law. On appeal, McKinney principally argues that the district
court: (1) erred in granting partial summary judgment to
defendants dismissing her claims of retaliatory termination and
hostile work environment; and (2) abused its discretion or
otherwise erred with respect to certain rulings at the trial of
her claims for termination on account of her race.
First, upon de novo review of the district court's
partial grant of summary judgment, resolving all ambiguities and
drawing all inferences in McKinney's favor, we conclude that no
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genuine issues of material fact existed for trial and defendants
were entitled to judgment as a matter of law as to the hostile
work environment and retaliatory termination claims. See Nagle
v. Marron, 663 F.3d 100, 104-05 (2d Cir. 2011). With respect to
McKinney's hostile work environment claim, McKinney failed to
present evidence from which a jury could find that her "workplace
[was] permeated with 'discriminatory intimidation, ridicule, and
insult' . . . 'sufficiently severe or pervasive to alter the
conditions of [her] employment.'" See Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 175 (2d Cir. 2012) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). As to McKinney's
claim of retaliatory termination, even assuming McKinney had
established a prima facie case under McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), defendants offered a legitimate non-
discriminatory reason for terminating McKinney -- McKinney's
threatening e-mails -- and McKinney, as the district court
concluded, did not present sufficient evidence from which a
reasonable jury could find that defendants' proffered reason was
pretextual. See McBride v. BIC Consumer Prods. Mfg. Co., 583
F.3d 92, 96 (2d Cir. 2009).
Second, McKinney challenges a number of the district
court's rulings at trial, including its: (1) refusal to charge
the jury to disregard defendants' ability to pay damages; (2)
grant of defendant Vicki Arpin's Rule 50 motion for a directed
verdict; (3) admission of evidence of McKinney's purported
litigiousness; (4) admission of evidence of Celeste Martires's
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perjury at a deposition; (5) admission of testimony from Wanda
Seldon, a DOT Deputy Administrator, agreeing with the decision to
discharge McKinney; (6) exclusion of testimony from David
Glidden, McKinney's union representative; and (7) refusal to
grant McKinney's motion to compel disclosure of an internal
investigative report of the DOT.
Upon reviewing the district court's decisions with
respect to the jury instructions and its grant of a motion for
directed verdict de novo, and its evidentiary and discovery
rulings for abuse of discretion, we conclude that the district
court did not err in its trial rulings. See Girden v. Sandals
Int'l, 262 F.3d 195, 203 (2d Cir. 2001) (jury instructions); Cash
v. Cnty. of Erie, 654 F.3d 324, 332-33 (2d Cir. 2011) (Rule 50
motion); Brown v. City of Syracuse, 673 F.3d 141, 149 (2d Cir.
2012) (evidentiary rulings); S.E.C. v. Rajaratnam, 622 F.3d 159,
180 (2d Cir. 2010) (discovery rulings). Further, even if the
district court had erred in any of these respects, a new trial is
not warranted because the district court's rulings were not
"clearly prejudicial to the outcome of the trial." Marcic v.
Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005) (internal
quotation marks omitted).
We have considered McKinney's remaining arguments and
find them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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