17-1820-cv
Campbell v. National Fuel Gas Distribution Corporation

                               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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of May, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

SHARON CAMPBELL,

                                   Plaintiff-Appellant,

                          v.                                                17-1820-cv

NATIONAL FUEL GAS DISTRIBUTION CORPORATION,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:           Harvey P. Sanders, Sanders and Sanders, Cheektowaga, N.Y.

Appearing for Appellee:            Melinda G. Disare, Bond Schoeneck & King (Michael E. Hickey,
                                   on the brief), Buffalo, N.Y.

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

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
         Plaintiff-Appellant Sharon Campbell appeals from the May 11, 2017 decision and order
of the United States District Court for the Western District of New York (Wolford, J.),
dismissing her Title VII claims for gender discrimination and hostile work environment.
Campbell appeals only the district court’s ruling on her gender discrimination claim. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

        “We review de novo a district court’s grant of a motion for summary judgment.” Walsh v.
New York City Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016). Where, as here, there is no direct
evidence of discrimination, a plaintiff may show discrimination indirectly through the burden
shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 82 (2d Cir. 2015). We have explained,

       Under the test, a plaintiff must first establish a prima facie case of discrimination by
       showing that: (1) she is a member of a protected class; (2) she is qualified for her
       position; (3) she suffered an adverse employment action; and (4) the circumstances give
       rise to an inference of discrimination. Once a plaintiff has established a prima facie case,
       a presumption arises that more likely than not the adverse conduct was based on the
       consideration of impermissible factors. The burden then shifts to the employer to
       articulate some legitimate, nondiscriminatory reason for the disparate treatment. If the
       employer articulates such a reason for its actions, the burden shifts back to the plaintiff to
       prove that the employer’s reason was in fact pretext for discrimination.

Id. at 83 (internal citations and quotation marks omitted). To make a sufficient showing of
pretext to survive summary judgment, “the plaintiff must produce not simply some evidence, but
sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
proffered by the defendant were false, and that more likely than not discrimination was the real
reason for the employment action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)
(internal quotation marks omitted). “In short, the question becomes whether the evidence, taken
as a whole, supports a sufficient rational inference of discrimination.” Id.

        We affirm for substantially the same reasons given by the district court in its thorough
and well-reasoned analysis. Campbell argues that she was fired for engaging in behavior that was
contrary to company policy, but common among employees. Per the argument, her firing reflects
her supervisor’s animus towards her on the basis of gender. She principally points to two men,
who she asserts engaged in similar conduct but were not fired. Comparing similarly situated
employees “is a recognized method of raising an inference of discrimination for the purposes of
making out a prima facie case.” Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010). We
have also endorsed this analysis as a means of establishing pretext, though it is less common.
See, e.g., Luciano v. Olsten Corp., 110 F.3d 210, 216 (2d Cir. 1997). “The standard for
comparing conduct requires a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, rather than a showing that both cases are identical. In other
words, the comparator must be similarly situated to the plaintiff in all material respects.” Ruiz,
609 F.3d at 494 (internal punctuation omitted). Neither of the comparators Campbell points to
were particularly similarly situated. One was never found to have engaged in misconduct. The
other self-reported an incident, while Campbell was caught in the act. The remaining evidence



                                                 2
potentially indicating gender discrimination by her supervisor was minimal. On this record,
Campbell has not established a rational inference that her firing was the product of
discrimination.

        We also observe that Campbell seeks to rely on a “cat’s paw” theory of liability, by
arguing that her supervisor harbored animus when filing a report of her misconduct, and that the
individuals who actually decided to terminate her employment gave effect to that animus—even
though they did not personally hold a discriminatory motive. However, as we have explained,
such a theory will succeed “[o]nly when an employer in effect adopts an employee’s unlawful
animus by acting negligently with respect to the information provided by the employee, and
thereby affords that biased employee an outsize role in its own employment decision.” Vasquez
v. Empress Ambulance Serv., Inc., 835 F.3d 267, 275 (2d Cir. 2016). We strain to see any
indication of negligence on this record, where Campbell admits to engaging in misconduct, and
National Fuel has fired nearly thirty other employees, most if not all men, for engaging in similar
behavior.

        We have considered the remainder of Campbell’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




                                                 3
