17-967
Rasko v. N.Y.C. Admin. for Children’s Servs.



                               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
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 17th day of May, two thousand eighteen.

PRESENT: PIERRE N. LEVAL,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
               Circuit Judges.
__________________________________________

JINAE RASKO,

                            Plaintiff-Appellant,

                   v.                                                     17-967

NEW YORK CITY ADMINISTRATION FOR
CHILDREN’S SERVICES,

                            Defendant-Appellee.

__________________________________________


FOR PLAINTIFF-APPELLANT:                                JINAE RASKO, pro se, New York, NY.


                                                    1
FOR DEFENDANT-APPELLEE:                           ELLEN RAVITCH, Assistant Corporation
                                                  Counsel (Deborah A. Brenner, Assistant
                                                  Corporation Counsel, on the brief), for
                                                  Zachary W. Carter, Corporation Counsel
                                                  of the City of New York, New York, NY.

      Appeal from a March 13, 2017, judgment of the United States District Court for the
Southern District of New York (Forrest, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jinae Rasko, pro se, sued her employer, the New York City Administration
for Children’s Services (“ACS”), under Title VII of the Civil Rights Act of 1964 for
discrimination based on her race (Asian), color (“non-Black”), and national origin (Korean),
and for retaliation. The district court dismissed her complaint for failure to state a claim.
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 dismissal of a complaint pursuant to Rule
12(b)(6), construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Although a court must accept as true all the factual
allegations in the complaint, that requirement is “inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

   I.     Disparate Treatment

          A. Time Barred Claims

        The district court held that Rasko’s claims relating to the allegedly discriminatory
actions that took place before March 14, 2015, were time-barred by the applicable 300-day
statute of limitations. See 42 U.S.C. § 2000e-5(e)(1); Pikulin v. City Univ. of New York,
176 F.3d 598, 599 (2d Cir. 1999) (“An employment discrimination claim must be filed with
the [Equal Employment Opportunity Commission (“EEOC”)] within 300 days of the
alleged discrimination in a state, like New York, with a fair employment agency.”). Rasko
has abandoned her argument that the district court erred with respect to this holding by
failing to raise it until her reply brief. See JP Morgan Chase Bank v. Altos Hornos de

                                             2
Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an
appellant’s opening brief are waived even if the appellant pursued those arguments in the
district court or raised them in a reply.”); LoSacco v. City of Middletown, 71 F.3d 88, 9293
(2d Cir. 1995) (applying rule of abandonment to pro se appellants).

       Even if there were no abandonment, we would hold that the district court properly
dismissed as untimely Rasko’s claims relating to denials of her requests for leave in 2010
and 2012. Under Title VII, a plaintiff in New York must file a complaint with the EEOC
within 300 days of a discriminatory act. 42 U.S.C. § 2000e-5(e)(1); Pikulin, 176 F.3d at
599. Claims concerning discrete acts outside this window will be time-barred. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Here, Rasko filed a discrimination
complaint with the EEOC on January 8, 2016. Therefore, any discrete acts of
discrimination that occurred prior to March 14, 2015, 300 days before Rasko filed her
complaint, are barred. Rasko argues that the three denials of leave that occurred in 2010
and 2012 were part of a continuing pattern with other discriminatory acts committed by her
supervisor, Sharon Corse, in 2015 and 2016. We find no error in the district court’s
determination that the instances of denial of leave in 2010 and 2012 were time-barred.
These were discrete acts and not part of a continuing pattern with the acts occurring three
to five years later. Because Rasko failed to file an EEOC complaint within 300 days of
those occurrences, they are no longer actionable. Accordingly, the district court properly
dismissed those claims.

          B. Merits

        Rasko’s remaining disparate treatment claim alleged that Corse, an African-
American, disciplined her in October 2015 after Rasko reported her African-American
coworker, Fatimata Fonah, for violating office policy, and that Corse failed to discipline
Fonah. To make out a prima facie case of discrimination under Title VII, a plaintiff has
the burden of establishing that (1) she is a member of a protected class; (2) she performed
the job satisfactorily or was qualified for the position; (3) an adverse employment action
took place; and (4) the action occurred under circumstances giving rise to an inference of
discrimination. Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002). “A
plaintiff sustains an adverse employment action if he or she endures a materially adverse
change in the terms and conditions of employment.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citation omitted). Informal discipline, criticism, or
counseling does not constitute an adverse act if no change in working conditions
accompanies it. See Weeks v. New York State (Div. of Parole), 273 F.3d 76, 86 (2d Cir.
2001) (holding that a notice of discipline that had no material effect was not adverse in the



                                             3
context of disparate treatment and retaliation claims), abrogated on other grounds by
Morgan, 536 U.S. at 10814.

       Rasko failed to allege any adverse employment actions. Although she described
Corse’s action in October 2015 as putting her on probation, the actual notice, attached as an
exhibit to the amended complaint, does not reflect any disciplinary action. Rather, the
notice explicitly states that Rasko would be expected to show that she understood a need
for better office behavior and that further violations “may result in disciplinary action.”
Rasko does not allege any facts suggesting that her work conditions changed as a result of
the notice. It therefore does not constitute an adverse action. See Weeks, 273 F.3d at 86.
Accordingly, the district court properly dismissed Rasko’s disparate treatment claim.

   II.    Hostile Work Environment

        Rasko asserts that she raised a hostile work environment claim based on Fonah’s
harassment and Corse’s failure to correct it. To establish a hostile work environment claim,
a plaintiff must show, inter alia, that “the workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of his or her
work environment.” Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (citation and
brackets omitted). A “[p]laintiff must show not only that she subjectively perceived the
environment to be abusive, but also that the environment was objectively hostile and
abusive.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). Minor workplace
conflicts do not rise to the level of an objectively hostile workplace. See Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (stating that “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language,” do not rise to a level constituting
a hostile work environment (citation omitted)); Brennan v. Metro. Opera Ass’n, Inc., 192
F.3d 310, 318 (2d Cir. 1999) (“Isolated, minor acts or occasional episodes do not warrant
relief.”). Rasko asserted only that Fonah was rude, threw documents on top of documents
that Rasko was working on, and made noise (e.g., snoring, talking on the phone, etc.). This
type of irritation does not rise to the level of an objectively hostile workplace. Accordingly,
the district court properly dismissed the claim.

   III.   Retaliation

        Finally, the district court properly dismissed Rasko’s retaliation claim. To plead a
retaliation claim under Title VII, a plaintiff must allege: “(1) participation in a protected
activity; (2) that [the employer] knew of [her] participation in that protected activity; (3)
that [she] suffered an adverse employment action; and (4) that there exists a causal
relationship between the protected activity and the adverse employment action.” Hicks v.


                                              4
Baines, 593 F.3d 159, 166 (2d Cir. 2010). To show an adverse employment action in the
retaliation context, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in [the retaliation] context means it well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks
omitted). “Trivial harms” or “petty slights or minor annoyances” do not constitute
materially adverse employment action. Tepperwien v. Entergy Nuclear Operations, Inc.,
663 F.3d 556, 568 (2d Cir. 2011) (citation omitted).

        Rasko’s complaints that Corse sent her a holiday email, was rude to her in a meeting,
and “oddly” spoke to her about software changes and Corse’s own vacation are nothing
more than petty slights, if they are slights at all. Rasko also complains that she was denied
leave twice in January 2016, once for sick time and the other for a partial day off for a
doctor’s appointment. However, the sick time request was ultimately approved and the
denial of a partial day off does not constitute an adverse act. See Rivera v. Rochester
Genesee Reg’l Transp. Auth., 743 F.3d 11, 25–26 (2d Cir. 2014) (holding that an employer’s
failure to give an employee a half day off for a doctor’s appointment—even when combined
with other actions—was insufficient to constitute an adverse employment action in the
retaliation context).

       We have considered all of Rasko’s remaining arguments and find them to be without
merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




                                             5
