11-3748-cv
Davis-Molinia v. Port Authority of N.Y. and N.J.

                             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 Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
of November, two thousand twelve.

Present:
         JOHN M. WALKER,
         PETER W. HALL,
         ROBERT A. KATZMANN,
                     Circuit Judges.
________________________________________________

ELAINE B. DAVIS-MOLINIA, RALPH A. MOLINIA,

             Plaintiffs-Appellants,

                    v.                                            No. 11-3748-cv

PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ROBERT DURANDO,
THERESA TESLER, OLGA KRUEGER, VICTORIA CROSS KELLY, INTERNATIONAL
UNION OF JOURNEYMEN AND ALLIED TRADES, LOCAL 111S, PORT AUTHORITY
OPERATIONS SUPERVISORS ASSOCIATION, JAMES KEMBLE,

             Defendants-Appellees.*

________________________________________________




       *
           The Clerk of the Court is directed to amend the caption as noted.
For Plaintiffs-Appellants:                               JAHA C. SMITH, Bronx, N.Y.

For Defendants-Appellees
Port Authority of New York and New Jersey,
Robert Durando, Theresa Tesler,
Olga Krueger, and Victoria Cross:                        MEGAN LEE (James M. Begley, on the
                                                         brief), The Port Authority of New York
                                                         and New Jersey, New York, N.Y.

For Defendants-Appellees
International Union of Journeymen
and Allied Trades, Local Union 111S,
Port Authority Operations Supervisors
Association, and James Kemble:                           RICHARD P. GALLER, The Law Office of
                                                         Richard P. Galler, LLC, Hackensack,
                                                         N.J.


       Appeal from the United States District Court for the Southern District of New York
(Daniels, J.).

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

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

       Plaintiffs-Appellants Elaine B. Davis-Molinia and Ralph A. Molinia, a married

interracial couple, brought this discrimination action against their former employer, the Port

Authority of New York and New Jersey (the “Port Authority”), and several of its individual

employees1 (collectively, the “Port Authority Defendants”). Plaintiffs asserted claims against

the Port Authority Defendants for disparate treatment, hostile work environment, and retaliation

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs also asserted

claims for race discrimination and unfair representation against the United Service Workers

Union-International Union of Journeymen and Allied Trades, Local Union 111S, Port Authority


       1
         The individual employees named in the complaint were Robert Durando, Theresa
Tesler, Olga Krueger, and Victoria Cross Kelly.

                                                 2
Operations Supervisors Association (the “Union”), and James Kemble, a Port Authority

employee and the former chairman of the Union (collectively, the “Union Defendants”). In an

August 19, 2011 Memorandum Decision and Order, the United States District Court for the

Southern District of New York (Daniels, J.) granted summary judgment in favor of the

defendants and dismissed plaintiffs’ complaint in its entirety. Plaintiffs now appeal from that

portion of the district court’s Memorandum Decision and Order dismissing plaintiffs’ claims

against the Union Defendants and their claims against the Port Authority for racial

discrimination and hostile work environment.2 We assume the parties’ familiarity with the facts

and procedural history of this case, as well as the issues on appeal.

       We review an award of summary judgment de novo, see El Sayed v. Hilton Hotels Corp.,

627 F.3d 931, 933 (2d Cir. 2010), and we will affirm only where “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). Having reviewed the record de novo, we affirm for substantially the

reasons stated in the district court’s thorough and well-reasoned opinion. See Davis-Molinia v.

Port Auth. of N.Y. & N.J., No. 08 CV 7584, 2011 U.S. Dist. LEXIS 93868 (S.D.N.Y. Aug. 19,

2011). Briefly stated, summary judgment was appropriate because, among other reasons,

plaintiffs failed to adduce evidence sufficient to create a genuine issue of material fact as to

whether (1) the Port Authority’s legitimate, non-discriminatory reasons for denying plaintiffs

“shift differential” pay were a pretext for discrimination, see Leibowitz v. Cornell Univ., 584

F.3d 487, 499 (2d Cir. 2009); (2) the Port Authority’s purported conduct created an environment



       2
        Plaintiffs do not appeal the dismissal of their claims against the individual Port
Authority defendants or their retaliation claims against the Port Authority.

                                                  3
that a reasonable person would find hostile or abusive because of plaintiffs’ membership in a

protected class, see Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); or (3) the Union breached

its duty of fair representation, see Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34

F.3d 1148, 1153-54 (2d Cir. 1994).

       Having considered all of plaintiffs’ arguments and finding them to be without merit, the

judgment of the district court is hereby AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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