     14-3992
     Ortiz v. Metropolitan Transportation Authority

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 11th day of September, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12
13       MICHELLE ORTIZ,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-3992
17
18       METROPOLITAN TRANSPORTATION AUTHORITY,
19       JOHN D’AGOSTINO, SWAREN JATINDRANATH,
20       JOHN BERLINGIERI, KAREN TAYLOR,
21       ROSALIE GRASCIA, GARY HOYSRADT,
22       GILBERT MACHADO, ELIZABETH BRODERICK,
23       JOHN LESTER, MICHAEL PIZZO, MARY
24       O’BRIEN, HANK LOEFFEL, DIANE NASH,
25       ROBERT TERRETT, and JOSEPH MARTELLI,
26                Defendants-Appellees.
27
28       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR APPELLANT:             ALAN E. WOLIN, Wolin & Wolin,
 2                              Jericho, New York.
 3
 4   FOR APPELLEES:             HELENE R. HECHTKOPF (Ira J.
 5                              Lipton, on the brief), Hoguet
 6                              Newman Regal & Kenney, LLP, New
 7                              York, New York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Broderick, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Michelle Ortiz appeals from the judgment of the United
17   States District Court for the Southern District of New York
18   (Broderick, J.), granting summary judgment in favor of
19   defendants-appellees. We assume the parties’ familiarity
20   with the underlying facts, the procedural history, and the
21   issues presented for review.
22
23        We affirm for substantially the reasons stated by the
24   district court in its thorough Memorandum and Order of
25   September 30, 2014.
26
27        1. Most of Ortiz’s claims are time-barred, including:
28   (1) the Title VII claims that arise from events taking place
29   before March 26, 2011; (2) the § 1983 claims that arise from
30   events taking place before February 14, 2010 and the § 1981
31   claims that arise from events taking place before February
32   14, 2009; and (3) the state-law claims that arise from
33   events taking place before April 15, 2009.
34
35        With a single exception (discussed below), Ortiz’s
36   argument that the “continuing violation” doctrine excuses
37   her untimely filing is unavailing: “multiple incidents of
38   discrimination, even similar ones, that are not the result
39   of a discriminatory policy or mechanism do not amount to a
40   continuing violation.” Lambert v. Genesee Hosp., 10 F.3d
41   46, 53 (2d Cir. 1993), overruled in part on other grounds by
42   Greathouse v. JHS Sec. Inc., 784 F.3d 105, 117 (2d Cir.
43   2015).
44
45        Ortiz’s hostile-work environment claims, however, are
46   timely under the “continuing violation” doctrine, and
47   conduct outside the limitations period may be considered.

                                  2
 1   See Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 105
 2   (2002) (“[C]onsideration of the entire scope of a hostile
 3   work environment claim, including behavior alleged outside
 4   the statutory time period, is permissible for purposes of
 5   assessing liability, so long as an act contributing to that
 6   hostile environment takes place within the statutory time
 7   period.”).
 8
 9        2. On the merits, the district court properly granted
10   summary judgment on the hostile work environment claims.
11   Any workplace misconduct here was insufficiently “severe or
12   pervasive” to create a hostile work environment. Patane v.
13   Clark, 508 F.3d 106, 113 (2d Cir. 2007). Moreover, most of
14   the complained-of conduct bears no apparent connection to
15   Ortiz’s sex, race, or national origin.
16
17        3. As to the remaining discrimination claims--
18   including but not limited to Ortiz’s claims relating to
19   assignment to a hazardous post, excessive scrutiny and
20   “micromanagement” of Ortiz’s work by her supervisors, and
21   denial of a non-monetary award--the district court correctly
22   held that none qualified as adverse employment actions.
23   Some of the instances of alleged discrimination could,
24   theoretically, have qualified as adverse employment actions
25   on different facts--if, say, there were evidence that a non-
26   monetary award is critical to career advancement in this
27   particular workplace. But there is insufficient evidence in
28   the summary judgment record for a reasonable jury to find
29   for Ortiz on any of these claims.
30
31        4. Ortiz’s remaining retaliation claims all fail.
32   Among other reasons, there is no evidence that any of the
33   alleged retaliatory acts had any causal connection to
34   protected activity.
35
36        5. Ortiz’s (timely) discrimination claims under 42
37   U.S.C. § 1981 and under the New York State (and New York
38   City) Human Rights Laws, allege (1) excessive supervision
39   and (2) rejection of her application to work in a K-9 unit.
40   Both of these claims fail on the merits, for the reasons
41   stated by the district court. Although the standards
42   applicable to the New York City Human Rights Law are not the
43   same as those applicable to federal law, the record is
44   insufficient to create a triable issue under the standards
45   of the City’s law.
46
47

                                  3
1                             *    *   *
2
3        For the foregoing reasons, and finding no merit in
4   Ortiz’s other arguments, we hereby AFFIRM the judgment of
5   the district court.
6
7                                 FOR THE COURT:
8                                 CATHERINE O’HAGAN WOLFE, CLERK
9




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