    15-3479
    Szwalla v. Time Warner Cable


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
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BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
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ASUMMARY ORDER@). A PARTY CITING TO 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
    1st day of December, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             ROSEMARY S. POOLER,
                  Circuit Judges,
             GEOFFREY W. CRAWFORD,
                  District Judge.
    _____________________________________

    AIMEE SZWALLA,

                        Plaintiff-Appellant,

                 v.                                       15-3479

    TIME WARNER CABLE LLC, TIME
    WARNER ENTERTANMENT COMPANY,
    L.P.,

                        Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:           Aimee Szwalla, pro se, Vestal,
                                       New York.


     Judge Geoffrey W. Crawford of the United States District Court
    for the District of Vermont, sitting by designation.
FOR DEFENDANTS–APPELLEES:    Jonathan B. Fellows, Bond,
                             Schoeneck, & King, Syracuse, New
                             York.

                             Suzanne O. Galbato, Bond,
                             Schoeneck, & King, Syracuse, New
                             York.

     Appeal from a judgment of the United States District Court
for the Northern District of New York (D’Agostino, J.).
     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     Appellant Aimee Szwalla, proceeding pro se, appeals from
a judgment granting summary judgment in favor of Time Warner
Cable (“TWC”) on her claims of hostile work environment and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. Szwalla alleged that two
supervisors sexually harassed her and that TWC retaliated
against her when she reported the harassment. We assume the
parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

     We review de novo a district court’s grant of summary
judgment, with the view that summary judgment is appropriate
only “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.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir.
2012) (internal quotation marks omitted). Upon review, we
conclude that the district court properly granted summary
judgment to TWC.

     The district court properly dismissed as time-barred
Szwalla’s hostile work environment claim based on comments made
by her supervisor Paul Noyd in 2009. In a jurisdiction with
a state fair employment agency, a plaintiff’s discrimination
claim is time-barred if it is not filed with the Equal Employment
Opportunity Commission within 300 days of the alleged
discriminatory act or within 30 days of the termination of the
state proceedings. See 42 U.S.C. § 2000e-5(e)(1); Ford v.
Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996).
Szwalla’s 2011 administrative complaint was untimely as to
Noyd’s conduct and did not assert a continuing violation theory.
See Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001)
(holding that a plaintiff may not rely on a continuing violation
theory if she has not asserted it in her administrative
proceedings).
      The district court also properly determined that TWC had
successfully raised an affirmative defense to Szwalla’s hostile
work environment claim based on her second supervisor’s
conduct. An employer may avoid liability for a supervisor’s
sexual harassment where it shows that (1) “the employer
exercised reasonable care to prevent and correct promptly any
sexually harassing behavior” and (2) “the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775,
807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765
(1998). As the district court determined, TWC satisfied the
first prong of the Faragher/Ellerth defense because the summary
judgment evidence showed that it had anti-harassment policies
in place that were widely distributed and allowed for employees
to bypass supervisors when filing complaints. See Faragher,
524 U.S. at 808. The summary judgment evidence also showed that
TWC exercised reasonable care to correct the sexually harassing
behavior when it promptly responded to Szwalla’s complaint by
suspending and terminating her second supervisor. The second
prong of the defense was satisfied because the evidence showed
that Szwalla did not report her supervisor’s conduct for a year
and she did not demonstrate that she had a credible fear that
a complaint would be ignored or would result in an adverse
employment action. See Caridad v. Metro-North Commuter R.R.,
191 F.3d 283, 295 (2d Cir. 1999), overruled on other grounds
by In re IPO, 471 F.3d 24, 42 (2d Cir. 2006).

     TWC was also entitled to judgment as a matter of law on
Szwalla’s retaliation claims. In order to state a prima facie
case of retaliation, a plaintiff must show that (1) she engaged
in protected activity; (2) the defendant knew of this protected
activity; (3) she suffered an adverse employment action; and
(4) a causal connection exists between the protected activity
and the adverse employment action. Littlejohn v. City of New
York, 795 F.3d 297, 315-16 (2d Cir. 2015) (citing Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010)). Should the plaintiff
present a prima facie case, the burden shifts to the defendant
to articulate some legitimate nondiscriminatory reason for the
action. Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d
Cir. 2015).        Where a defendant presents legitimate
nondiscriminatory reasons for adverse employment actions, a
plaintiff may prevail only if she can show that her

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participation in the protected activity was the “but for” cause
for the adverse employment action. Id.

     The district court correctly concluded that the majority
of TWC’s actions alleged by Szwalla did not constitute adverse
employment actions. See Galabya v. New York City Bd. Of Educ.,
202 F.3d 636, 640 (2d Cir. 2000) (An adverse employment action
is an act that gives rise to “a materially adverse change in
the terms and conditions of employment” or a change in working
conditions that is “more disruptive than a mere inconvenience
or an alteration of job responsibilities.”). The district
court did not address whether Szwalla’s transfer from account
executive to a position in TWC’s call center or her ultimate
termination were adverse employment actions. However, we may
affirm a district court’s order on any grounds supported in the
record. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405
(2d Cir. 2006). Even assuming that Szwalla’s transfer and
termination were adverse employment actions and that she stated
a prima facie claim of retaliation, her claim must fail because
TWC provided legitimate nondiscriminatory reasons for its
actions and because Szwalla cannot show that her participation
in protected activity was the “but for” cause of her transfer
and termination. See Chen, 805 F.3d at 70.

     We have considered all of Szwalla’s arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of
the district court.
                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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