11-3032-cv
Chukwuka v. City of New York

                     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
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 28 day of February, two thousand thirteen.
PRESENT:  DENNY CHIN,
          CHRISTOPHER F. DRONEY,
                    Circuit Judges,
          JANE A. RESTANI,*
                    Judge.
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DAVIDSON CHUKWUKA,
                       Plaintiff-Appellant,

                               -v.-                           11-3032-cv

CITY OF NEW YORK, NEW YORK CITY HUMAN
RESOURCES ADMINISTRATION, RICHARD BECK,
Director of Bureau of Reconciliation and
Control, NYCHRA Finance Office, SHERRY
BERKOWITZ,
                   Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:              Davidson Chukwuka, pro se, Richmond
                                      Hill, New York.

FOR DEFENDANTS-APPELLEES:             Graham Morrison, Mordecai Newman,
                                      for Michael A. Cardozo, Corporation
                                      Counsel of the City of New York,
                                      New York, New York.



      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
          Appeal from the United States District Court for the

Southern District of New York (Cedarbaum, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Davidson Chukwuka, proceeding pro
se, appeals the district court's judgment granting the motion of

defendants-appellees for summary judgment and dismissing the

complaint.   Chukwuka alleged, inter alia, that defendants had

violated Title VII of the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. 2000e et seq., by discriminating against him on account

of his race, color, and national origin, and that defendants had

subjected him to a hostile work environment.1    We assume the

parties' familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

          We review an award of summary judgment de novo,

"construing the evidence in the light most favorable to the non-

moving party and drawing all reasonable inferences in its favor."

Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720
(2d Cir. 2010) (citation and internal quotation marks omitted).

Summary judgment is appropriate if "the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law."   Fed. R. Civ. P. 56(a).

"A party opposing summary judgment does not show the existence of

a genuine issue of fact to be tried merely by making assertions

     1
          Chukwuka's brief on appeal does not challenge the
district court's dismissal of his claims for employment fraud,
constructive discharge, and interference with retirement benefits
under the Employee Retirement Income Security Act, 29 U.S.C.
§ 1001, et seq. Accordingly, we deem those claims abandoned.

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that are conclusory, or based on speculation."   Major League

Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d

Cir. 2008) (internal citations omitted).

          We have conducted an independent and de novo review of

the record, and for substantially the reasons stated in the

district court's thorough Opinion of June 23, 2011, we conclude

that Chukwuka's employment discrimination claim pursuant to Title

VII fails because no reasonable jury could find that he suffered

an adverse employment action.   See Chukwuka v. City of N.Y., 795
F. Supp. 2d 256, 260-62 (S.D.N.Y. 2011).

          Further, although the district court did not address

Chukwuka's hostile work environment claim, remand for the

district court to make an initial assessment of this claim is not

necessary, as the record demonstrates that this claim is also

without merit.2   See Chase Manhattan Bank, N.A. v. Am. Nat'l Bank

& Trust Co. of Chicago, 93 F.3d 1064, 1072 (2d Cir. 1996) ("An

appellate court has the power to decide cases on appeal if the

facts in the record adequately support the proper result or if
the record as a whole presents no genuine issue as to any

material fact." (internal citations and quotation marks

omitted)); McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir.

2012) ("We may affirm summary judgment on any ground supported by

the record, even if it is not one on which the district court

relied.").



     2
          The parties addressed the hostile work environment
claim in their briefs on the motion for summary judgment before
the district court.

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          "In order to establish a hostile work environment claim

under Title VII, a plaintiff must produce enough evidence to show

that the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment."    Rivera v. Rochester Genesee Reg'l

Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012) (citation and

internal quotation marks omitted).       A plaintiff must show that "a

single incident was extraordinarily severe, or that a series of

incidents were sufficiently continuous and concerted to have

altered the conditions of [his] working environment."      Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (citation

and internal quotation marks omitted).      Although a single act can

meet this threshold if it transforms the plaintiff's workplace,

"[i]solated acts, unless very serious, do not meet the threshold

of severity or pervasiveness."    Alfano v. Costello, 294 F.3d 365,

374 (2d Cir. 2002).

          In considering whether a plaintiff has stated a hostile

work environment claim, "courts should examine the totality of

the circumstances, including:    the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with the victim's job

performance."   Rivera, 702 F.3d at 693 (citation, internal
quotation marks, and alterations omitted).      "[T]he misconduct

shown must be 'severe or pervasive enough to create an

objectively hostile or abusive work environment,' and the victim


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must also subjectively perceive that environment to be abusive."

Alfano, 294 F.3d at 374 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)).   Moreover, "[i]t is axiomatic that

mistreatment at work . . . through subjection to a hostile

environment . . . is actionable under Title VII only when it

occurs because of an employee's [protected characteristic]."

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis

added).

          Here, Chukwuka alleges that he was subjected to a
hostile work environment as a result of eight specific events:

(1) in May 2002, Richard Beck would not approve a leave of

absence to allow Chukwuka to transport his brother's body back to

Nigeria, as required by Nigerian custom, until Chukwuka completed

his assigned work; (2) in February 2003, Beck screamed at

Chukwuka and referred to him as a "foreigner" and "this African";

(3) in April 2003, Beck asked Chukwuka's direct supervisor,

Robert Martin, to closely monitor him and give him poor

performance evaluations; (4) in April 2003, Beck altered some of
Chukwuka's employee evaluation ratings from "outstanding" to

"very good" after Chukwuka had already signed the evaluation; (5)

in September 2003, Beck denied Chukwuka's request for a 20-day

vacation, and instead approved only a 15-day vacation; (6) in

April 2004, Beck personally filled out an employee evaluation

form and gave Chukwuka only a "good" rating; (7) in April 2004,
Beck issued Chukwuka a written reprimand for being away from his

workstation for 30 minutes, and deducted 30 minutes from his

accrued annual time; and (8) in July 2004, Beck accused Chukwuka


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of taking an extended lunch break, reprimanded him, and deducted

one hour from his accrued annual time.

          Of the eight incidents, however, only three could

arguably be considered discriminatory, humiliating, or insulting:

(1) the initial refusal to allow Chukwuka to transport his

brother's body, in keeping with Nigerian custom; (2) calling

Chukwuka a "foreigner" and "this African"; and (3) directing

Chukwuka's immediate supervisor to closely monitor him and give

him poor performance ratings.    Nevertheless, given that the three
events -- which were spread out over a year -- were not

"sufficiently continuous and concerted," Cruz, 202 F.3d at 570,

and because the record lacks other evidence supporting a finding

that Chukwuka's workplace was "permeated with discriminatory

intimidation, ridicule, and insult, that [was] sufficiently

severe or pervasive to alter the conditions of [his] employment

and create an abusive working environment," Rivera, 702 F.3d at

693 (citation and internal quotation marks omitted), we conclude

that no reasonable jury could find that Chukwuka established a
hostile work environment claim.

          We have considered Chukwuka's remaining arguments and
conclude that they lack merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




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