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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