12-1976-cv
Chansamone v. NRG Northeast

                           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 States Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of May, two thousand thirteen.

Present:
         PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                     Circuit Judges.
_______________________________________________

SITTHISAK V. CHANSAMONE,

                   Plaintiff-Appellant,

                   v.                                                   No. 12-1976-cv

IBEW LOCAL 97,

                   Defendant,

NRG NORTHEAST AFF SERVICE, INC.,

               Defendant-Appellee.
_______________________________________________

For Plaintiff-Appellant:                  Gregory G. Paul, Morgan & Paul, PLLC, Sewickley,
                                          PA.

For Appellee:                             Mark A. Molloy, Nixon Peabody LLP, Buffalo, NY.
       Appeal from the United States District Court for the Western District of New York
(Curtin, J.).

          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

          Plaintiff-Appellant Sitthisak Chansamone appeals from a judgment entered on April 13,

2012 by the United States District Court for the Western District of New York (Curtin, J.). That

judgment granted the motion of Defendant-Appellee NRG Northeast Aff Service, Inc. (“NRG”)

for summary judgment and dismissed Chansamone’s claims for employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the New

York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.1 On appeal, Chansamone

contends that the evidence in the record supports his claims that NRG discriminated against him

in its hiring process and that it tolerated a racially hostile work environment. We assume the

parties’ familiarity with the relevant facts, the procedural history, and the issues presented for

review.

          We turn first to Chansamone’s claim that NRG discriminated against him when it

declined to hire him for permanent positions at a facility other than the one where he worked as a

temporary employee.2 To prevail on this claim, Chansamone must first establish a prima facie

case by showing: “(1) that [he] was within the protected . . . group, (2) that [he] was qualified for

the position, (3) that [he] experienced [an] adverse employment action, and (4) that such [an]


          1
        Although Chansamone initially identified IBEW Local 97 as a defendant, he voluntarily
dismissed his claims against it with prejudice on April 26, 2011.
          2
         Because NRG classified Chansamone as a “temporary employee,” his selection for a permanent
position at the other facility would have amounted to a promotion.

                                                  2
action occurred under circumstances giving rise to an inference of discrimination.” Gorzynski v.

JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). If Chansamone establishes a prima facie

case, “the burden shifts to the defendant to articulate ‘some legitimate, nondiscriminatory

reason’ for its action.” Id. at 106 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973)). “Once such a reason is provided, the plaintiff can no longer rely on the prima facie

case, but may still prevail if [he] can show that the employer’s determination was in fact the

result of discrimination.” Id.3

        Here, even if Chansamone can establish a prima facie case, he has offered no evidence to

rebut NRG’s “legitimate, nondiscriminatory reason” for its actions. Chansamone, who is

Laotian, applied on numerous occasions for permanent positions at a NRG facility other than the

one where he worked as a temporary employee. He claims that Carson Leikam, the hiring

supervisor at that separate facility, declined to employ him based on his race. According to

Chansamone, Leikam knew about his race because Leikam heard Chansamone’s accent when

Chansamone called to inquire about his application. Leikam, however, explained his decision not

to choose Chansamone based on legitimate and nondiscriminatory factors: specifically, that

Chansamone struck him as “abrupt[]” during the relevant phone call, that Chansamone had

potentially shown a lack of commitment when he “left the company and . . . came back,” and that

Chansamone’s resume overstated his experience. In response to these nondiscriminatory reasons,

Chansamone argues only that successful applicants also called Leikam and that Leikam failed to




        3
         The same standards apply to Chansamone’s state claims. See, e.g., Tyler v. Bethlehem Steel
Corp., 958 F.2d 1176, 1180 (2d Cir. 1992).

                                                   3
investigate Chansamone’s qualifications.4 No reasonable jury could find, based on these

arguments, that NRG in fact discriminated against Chansamone. First, Leikam identified

Chansamone’s abruptness during the phone call, rather than the mere fact that Chansamone

called, as the basis for disfavoring Chansamone’s application. Second, the fact that Leikam did

not investigate Chansamone’s qualifications says nothing about why he did not do so and is

wholly consistent with Leikam’s explanation that he stopped considering Chansamone’s

application because the phone call and resume left him with an unfavorable impression.

Accordingly, Chansamone has produced no credible evidence of discrimination, and the district

court correctly granted summary judgment on these claims.

        Chansamone’s hostile work environment claim likewise fails. To prevail on this claim,

Chansamone must make two showings. First, he must demonstrate 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal

quotation marks omitted). Second, he must identify a “specific basis . . . for imputing the conduct

that created the hostile environment to the employer.” Schwapp v. Town of Avon, 118 F.3d 106,

110 (2d Cir. 1997). In our prior cases, we have allowed hostile environment claims to proceed

only where a plaintiff has shown either one or more “extraordinarily severe” incidents, Cruz v.



        4
         We do not consider Chansamone’s testimony that co-workers told him that Leikam would not
hire him “as an Asian,” because that testimony is inadmissible hearsay. See Burlington Coat Factory
Warehouse Corp. v. Esprit De Corp, 769 F.2d 919, 924 (2d Cir. 1985) (“[A party] cannot rely on
inadmissible hearsay in opposing a motion for summary judgment.”); see also Woodman v. WWOR-TV,
Inc., 411 F.3d 69, 75 (2d Cir. 2005) (“[W]e are obliged carefully [to] distinguish between evidence that
allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and
conjecture.” (internal quotation marks omitted)).

                                                    4
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000), or “a steady barrage of opprobrious racial

comments,” Schwapp, 118 F.3d at 110 (internal quotation marks omitted).

        Here, Chansamone cannot show that the conduct of his co-workers, although

undoubtedly offensive, was so severe or frequent that it created “an abusive working

environment.” Although Chansamone testified that another co-worker called him a “VC” and

said, “I used to kill people like [Chansamone],” these remarks do not rise to the level of an

“extraordinarily severe” incident. Compare Richardson v. N.Y. State Dep’t of Correctional Serv.,

180 F.3d 426, 439 (2d Cir. 1999) (“Perhaps no single act can more quickly alter the conditions of

employment and create an abusive working environment than the use of an unambiguously racial

epithet such as nigger by a supervisor in the presence of his subordinates.” (internal quotation

marks omitted)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006), with Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 70-71 (2d Cir. 2000)

(analyzing co-worker’s statement that “he had a rope with which to hang” someone as only part

of a “stream of racially offensive comments”). Moreover, analyzing the aforementioned

comments alongside the other conduct that Chansamone has identified,5 we think that the

evidence demonstrates only “sporadic” or “isolated incidents of racial enmity,” rather than “a

steady barrage of opprobrious racial comments.” Schwapp, 118 F.3d at 110 (internal quotation

marks omitted). Accordingly, the district court correctly granted NRG’s motion for summary

judgment.6


        5
         Specifically, Chansamone testified that a different co-worker referred to his friend as an “Asian
gay lover,” and that multiple co-workers told him that Leikam would not hire him because of his race.
        6
        Chansamone further argues that the district court erred by failing to rule on his motion to compel
responses to his interrogatories. Nonetheless, NRG voluntarily produced responses to Chansamone’s
discovery demands, mooting any motion to compel.

                                                     5
       We have considered Chansamone’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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