       09-4916-cv
       Borski v. Staten Island Rapid Transit
                                           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 for the Second Circuit, held at
 2     the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3     York, on the 16th day of March, two thousand eleven.
 4
 5     PRESENT: BARRINGTON D. PARKER,
 6              GERARD E. LYNCH,
 7              RAYMOND J. LOHIER, JR.,
 8                             Circuit Judges.
 9
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11
12     WALLACE BORSKI,
13                                                   Plaintiff-Appellant,
14
15                                      v.                                            No. 09-4916-cv
16
17     STATEN ISLAND RAPID TRANSIT,
18                             Defendant-Appellee.
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21
22     FOR APPELLANT:                          Thomas F. Bello, Staten Island, New York.
23
24     FOR APPELLEE:                           Richard Schoolman, Kavita Bhatt, Office of the General
25                                             Counsel, New York City Transit Authority, Brooklyn, New
26                                             York.
27
28                Appeal from the United States District Court for the Eastern District of New York

29     (Sandra L. Townes, Judge).

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

31     DECREED that the judgment of the district court is AFFIRMED.
 1          Plaintiff-appellant Wallace Borski appeals from the district court’s order granting

 2   summary judgment to defendant-appellee Staten Island Rapid Transit (“SIRT”) on Borski’s

 3   federal and state law retaliation claims and denying Borski’s cross-motion to amend his

 4   complaint. We assume the parties’ familiarity with the underlying facts and procedural

 5   history of this case, which we reference only as necessary to explain our decision.

 6                                          DISCUSSION

 7   I. Retaliation

 8          We review an award of summary judgment de novo, affirming “only if there is no

 9   genuine issue as to any material fact, and if the moving party is entitled to a judgment as a

10   matter of law.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005).

11          Borski claims that his supervisor retaliated against him for complaining about

12   sexually-charged cartoons posted in the workplace. We analyze both federal and state law

13   retaliation claims under the familiar burden-shifting approach of McDonnell Douglas Corp.

14   v. Green, 411 U.S. 792, 802-04 (1973), which places the initial burden on the plaintiff to

15   demonstrate a prima facie case of retaliation, see Kaytor v. Elec. Boat Corp., 609 F.3d 537,

16   552-53 (2d Cir. 2010); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177-78 (2d Cir. 1996).

17   To carry that burden, the plaintiff “must show that: (1) [he] engaged in a protected activity;

18   (2) [his] employer was aware of this activity; (3) the employer took adverse employment

19   action against [him]; and (4) a causal connection exists between the alleged adverse action

20   and the protected activity.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir.

21   2006). For purposes of this appeal, SIRT does not dispute that it was aware of Borski’s

22   complaints or that those complaints constituted protected activity. However, SIRT does

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 1   claim that Borski failed to establish either an adverse employment action or the necessary

 2   causation between any such action and his protected activity. We conclude that no

 3   reasonable jury could find that Borski suffered an adverse employment action, and therefore

 4   need not reach the question of causation.

 5          In order to satisfy the adverse employment action element of his prima facie case,

 6   Borski claims that his voluntary retirement from SIRT actually constituted a constructive

 7   discharge because the conditions created by the offensive cartoons forced him to retire. A

 8   constructive discharge occurs when an employer “intentionally creates a work atmosphere

 9   so intolerable that [the plaintiff] is forced to quit involuntarily.” Terry v. Ashcroft, 336 F.3d

10   128, 151-52 (2d Cir. 2003); see also Pa. State Police v. Suders, 542 U.S. 129, 141 (2004).

11   Whether working conditions are sufficiently intolerable to constitute a constructive discharge

12   “is assessed objectively by reference to a reasonable person in the employee’s position.”

13   Petrosino v. Bell Atl., 385 F.3d 210, 230 (2d Cir. 2004).

14          In this case, no reasonable person in Borski’s position would have felt compelled to

15   quit his job in order to avoid being targeted by his colleagues’ offensive postings because

16   those postings had stopped years before Borski decided to retire. Sometime in the late 1990s,

17   after Borski had endured nearly twenty years of offensive cartoons posted throughout the

18   workplace, he complained to his supervisor. Soon after that complaint, the postings ceased,

19   and there is no evidence that Borski encountered similarly offensive conduct between

20   January 1, 2000 and May 6, 2003, when he gave notice of his intent to retire. Given the

21   three-year gap between the final posting and Borski’s retirement, he cannot, and does not

22   attempt to, argue that SIRT “ratcheted the harassment up to the breaking point” directly prior

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 1   to his decision to retire. Id. (internal quotation marks omitted). There is thus no evidence

 2   that Borski’s complaint was met with retaliatory harassment. Furthermore, no reasonable

 3   jury could conclude that a reasonable person would feel compelled to quit his job over

 4   conduct that had ceased years earlier. Borski makes no attempt to explain why he was able

 5   to withstand years of offensive behavior but suddenly felt compelled to retire three years

 6   after such behavior ceased. Without such an explanation, or any evidence of intolerable

 7   working conditions at the time that he decided to retire, no reasonable jury could conclude

 8   that Borski was constructively discharged from his position. Therefore, the district court

 9   properly granted summary judgment for SIRT on Borski’s retaliation claim.

10   II. Leave to Amend the Complaint

11          At summary judgment, Borski moved to amend his complaint in order to reinstate a

12   previously-dismissed hostile work environment claim. The district court denied Borski’s

13   motion after concluding that his proposed amended complaint lacked merit.

14          “One good reason to deny leave to amend is when such leave would be futile.” Acito

15   v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). For example, “when the evidence

16   in support of the plaintiff’s proposed new claim creates no triable issue of fact and the

17   defendant would be entitled to judgment as a matter of law,” leave to amend should be

18   denied. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). In this case, it

19   would have been futile for the district court to permit Borski to raise his hostile work

20   environment claim because workplace bullying, such as the behavior exhibited by Borski’s

21   colleagues in this case, does not constitute discrimination merely because it contains “sexual



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 1   content or connotations.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

 2   (1998). Instead, a plaintiff must demonstrate that the offending conduct occurred because

 3   of his membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).

 4   While Borski was often the target of ridicule, the record reveals no evidence whatsoever that

 5   he was targeted because of his sex. Without such evidence, his discrimination claim would

 6   necessarily have failed. See Brown v. Henderson, 257 F.3d 246, 255-56 (2d Cir. 2001). We

 7   therefore conclude that the district court properly denied Borski’s cross-motion to amend his

 8   complaint.

 9                                        CONCLUSION

10          We have considered all of Borski’s arguments on appeal and find them to be without

11   merit. Accordingly, for the foregoing reasons, the order of the district court is AFFIRMED.

12
13                                      FOR THE COURT:
14                                      Catherine O’Hagan Wolfe, Clerk of Court
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