    15-1103-cv
    Campbell v. New York City Transit 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
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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 October, two thousand sixteen.

    PRESENT:
                GUIDO CALABRESI,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges,
                JED S. RAKOFF,*
                      District Judge.
    _____________________________________

    Collette Campbell,

                               Plaintiff-Appellant,

                      v.                                                          15-1103-cv

    New York City Transit Authority,

                               Defendant-Appellee.

    _____________________________________


    For Plaintiff-Appellant:                          Collette Campbell, pro se, Bay Shore, NY.

    * Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
    sitting by designation.

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For Defendant-Appellee:                       Robert K. Drinan, New York City Transit Authority,
                                              Brooklyn, NY.

       Appeal from the judgment and order of the United States District Court for the Eastern

District of New York (Brodie, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment and order of the district court are AFFIRMED.

       Plaintiff-Appellant Collette Campbell (“Campbell”), proceeding pro se, appeals from the

judgment of the United States District Court for the Eastern District of New York (Brodie, J.)

granting summary judgment to Defendant-Appellee New York City Transit Authority (“Transit

Authority”) on her claims brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq.; and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,

as well as from the district court’s subsequent order denying her request for reconsideration.

       Campbell was employed by the Transit Authority from 1983 through her retirement in

August 2011. Her claims stem primarily from two incidents in 2009 involving an employee she

supervised, Jimmy Davenport, and the Transit Authority’s response to those incidents, which

included holding Campbell out of service and ultimately suspending her and Davenport.

Campbell also challenges the Transit Authority’s decision to oppose her workers’ compensation

claim stemming from the second incident, as well as its subsequent pursuit of disciplinary charges

for abuse of sick leave policy. Campbell contends that she did not retire voluntarily, but rather

that she was constructively discharged. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.


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       We review grants of summary judgment de novo, Kirkendall v. Halliburton, Inc., 707 F.3d

173, 179 (2d Cir. 2013), and denials of motions for reconsideration for abuse of discretion, Devlin

v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 131–32 (2d Cir. 1999). 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).       All ambiguities must be resolved, and all

reasonable inferences drawn, in favor of the non-movant. Nationwide Life Ins. Co. v. Bankers

Leasing Assoc., 182 F.3d 157, 160 (2d Cir. 1999).

       I.      Discrimination

       Campbell’s discrimination claims are governed by the McDonnell Douglas

burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

As is relevant here, to establish a prima facie case of gender discrimination under Title VII or age

discrimination under the ADEA, Campbell had to demonstrate that she suffered an adverse

employment action that occurred under circumstances suggesting discrimination. Kirkland v.

Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (Title VII); Gorzynski v. JetBlue Airways

Corp., 596 F.3d 93, 106–07 (2d Cir. 2010) (ADEA). Similarly, to establish a prima facie case of

discrimination under the ADA, Campbell had to show, among other things, that she “suffered an

adverse employment action because of [her] disability or perceived disability.” Kinneary v. City

of New York, 601 F.3d 151, 156 (2d Cir. 2010) (internal quotation marks omitted). Further, for

any of these claims, where the Transit Authority advanced a legitimate, non-discriminatory reason

for its actions, it was Campbell’s burden to rebut it. Kirkland, 760 F.3d at 225; Gorzynski, 596

F.3d at 106; Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2008).


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       The district court correctly held that Campbell failed to establish a material issue of fact as

to discriminatory intent. “In determining whether a genuine issue of material fact exists for a

trial, we 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.”

Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (brackets and internal quotation

marks omitted). Campbell’s allegation that the Transit Authority held her out of service and

suspended her—the only actions which qualify as adverse1—because of her sex, age, and/or

disability are unsupported by the record, and constitute mere speculation as to the Transit

Authority’s motives.2 Campbell has likewise failed to rebut the Transit Authority’s legitimate,

non-discriminatory reason for its actions, namely Davenport’s written complaint against her.

       II.     Hostile Work Environment

       To establish a hostile work environment, Campbell had to demonstrate “(1) that [her]

workplace was permeated with discriminatory intimidation that was sufficiently severe or

pervasive to alter the conditions of . . . her work environment, and (2) that a specific basis exist[ed]

for imputing the conduct that created the hostile environment to” the Transit Authority.

Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (internal quotation marks omitted).

       1
          Despite Campbell’s contention that the Transit Authority conceded, in response to a
request for admission, that she was constructively discharged, the district court correctly declined
to deem the admission dispositive given that the Transit Authority elsewhere specifically denied
that Campbell’s retirement was involuntary, and Campbell otherwise advanced no facts indicating
that her work environment was sufficiently intolerable, or that the Transit Authority intentionally
brought about the complained-of conditions, so as to establish a constructive discharge. See
Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004).
       2
          Campbell has also failed to establish a discrimination claim for failure to accommodate a
disability because she has offered no evidence that she ever requested an accommodation, or that
such accommodation was denied. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92,
96–97 (2d Cir. 2009).

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“Isolated incidents usually will not suffice to establish a hostile work environment, although we

have often noted that even a single episode of harassment can establish a hostile work environment

if the incident is sufficiently ‘severe.’” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175–76 (2d

Cir. 2012).

       We agree with the district court that the two isolated incidents of harassment by Davenport

that Campbell identified were insufficient to establish a hostile work environment because his

alleged conduct was neither severe nor pervasive. Although Davenport’s comments regarding

Campbell’s hair and gender were inappropriate, the record does not suggest they altered the

conditions of her work environment so as to establish a claim. See Petrosino, 385 F.3d at 223

(“[W]e are mindful that Title VII does not establish a general civility code” and that “isolated

incidents of offensive conduct (unless extremely serious) will not support a claim of

discriminatory harassment.” (internal quotation marks omitted)).

       III.    Retaliation

       Campbell’s retaliation claims are also subject to the McDonnell Douglas burden-shifting

framework. As is relevant here, to establish a prima facie case of retaliation, Campbell had to

demonstrate that there was a causal connection between an alleged adverse action taken by Transit

Authority and her engagement in protected activity.3 Summa v. Hofstra Univ., 708 F.3d 115, 125

(2d Cir. 2013) (Title VII); Kessler v. Westchester Cty. Dept. of Social Servs., 461 F.3d 199, 205–

06 (2d Cir. 2006) (ADEA); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA).


       3
         We recognize that Campbell’s Title VII retaliation claim is subject to the higher “but-for”
causation standard. Zann Kwan v. Andalex Grp., 737 F.3d 834, 845 (2d Cir. 2013). We need not
opine on whether her remaining retaliation claims are subject to the same standard, however,
because there is no evidence of any causal connection between Campbell’s protected activity and
an adverse employment action.

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       Here, the district court correctly determined that Campbell failed to establish any causal

connection between her alleged protected activity and a subsequent adverse employment action

because she provided no evidence “that the allegedly adverse actions occurred in circumstances

from which a reasonable jury could infer retaliatory intent.” See Treglia, 313 F.3d at 720. The

Transit Authority also offered legitimate, non-retaliatory reasons for its actions, including

Davenport’s written complaint, an investigation of Campbell and approximately 50 other

supervisors that revealed systemic abuse of sick leave, and a belief that Campbell was not entitled

to workers’ compensation, each of which Campbell failed to rebut. See El Sayed v. Hilton Hotels

Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam).

       We have considered Campbell’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment and order of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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