18‐877
Montanez v. McDean LLC


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
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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 16th day of May, two thousand
nineteen.

PRESENT: JON O. NEWMAN,
         DENNIS JACOBS,
         CHRISTOPHER F. DRONEY,
                      Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
ISAAC MONTANEZ,
                   Plaintiff‐Appellant,

                  ‐v.‐                                         18‐877

MCDEAN LLC,
                   Defendant‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X


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FOR APPELLANT:                                Isaac Montañez, pro se, Albany, NY.

FOR APPELLEE:                                 Clemente J. Parente, Kristi Rich
                                              Winters, Jackson Lewis P.C., Albany,
                                              NY.

     Appeal from a judgment of the United States District Court for the
Northern District of New York (Hurd, J.).

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

       Appellant Isaac Montañez, pro se, sued his former employer, McDean,
LLC, for discrimination and retaliation under Title VII of the Civil Rights Act of
1964 and the Americans with Disabilities Act (“ADA”). He generally alleged
that he was harassed and discriminated against by his supervisors because of his
race, national origin, sex, and disability, and that he was placed on probation and
fired in retaliation for complaining about the harassment. The district court
granted summary judgment for McDean. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on
appeal.

     Orders granting summary judgment are reviewed de novo. See Sousa v.
Marquez, 702 F.3d 124, 127 (2d Cir. 2012).

        Title VII and ADA Disparate Treatment. Title VII and ADA claims are
evaluated under the McDonnell Douglas framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 82‐83 (2d Cir. 2015) (Title VII); Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 169 (2d Cir. 2006) (ADA). To make out a prima facie case of
discrimination under Title VII, a plaintiff has the burden of establishing, inter
alia, that an adverse employment action was taken under circumstances giving
rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802;



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Vega, 801 F.3d at 83. ADA claims additionally require that the plaintiff show
disability within the meaning of the ADA. Sista, 445 F.3d at 169.

       If a plaintiff establishes a prima facie case of discrimination, the employer
must articulate a legitimate, non‐discriminatory reason for the adverse
employment decision. See Vega, 801 F.3d at 83; see also McDonnell Douglas,
411 U.S. at 802. The burden then shifts back to the plaintiff to present evidence
that the employer’s proffered reason is pretext for an impermissible motivation.
Vega, 801 F.3d at 83; see McDonnell Douglas, 411 U.S. at 804‐05. If the plaintiff
cannot establish pretext, the employer is entitled to summary judgment. James
v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).

      Even if we assume that the disciplinary actions of which Montañez
complains suffice to establish a prima facie case of discrimination, McDean
offered legitimate, non‐discriminatory reasons for such actions. McDean
showed that Montañez was placed on probation because he ate restaurant food
while on duty, in violation of the restaurant’s policies. Montañez argues that
others did the same; but that does not show pretext. Different treatment of
similarly situated employees who are not members of the protected class can
evidence discrimination. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60,
64 (2d Cir. 1997). But one comparator was, like Montañez, a Puerto Rican man,
which defeats any argument that Montañez was singled out for discipline
because of his national origin or sex. And he offered no evidence that he was
singled out in this instance on the basis of race.

       McDean showed that Montañez was fired because he failed to show up for
a shift without notice. Montañez claimed that he was told not to show up for
that shift, but he did not identify the person during his deposition, let alone
establish that person’s authority. There is no evidence that the general
manager’s decision to fire him was because of his race, national origin, or sex.
Montañez stated in his deposition that he had no problems with the general
manager.

     Montañez also alleged that McDean failed to pay him for all the hours he
worked. But he offered no evidence that McDean’s failure to fully compensate

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him was because of his race, national origin, or sex. His conclusory assertions
that McDean withheld compensation because of discrimination are insufficient to
preclude summary judgment. See Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008).

       Title VII Hostile Work Environment. 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) (internal quotation marks 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). “[A]
mild, isolated incident does not make a work environment hostile.” Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal quotation marks omitted).
Instead, “the test is whether the harassment is of such quality or quantity that a
reasonable employee would find the conditions of her employment altered for
the worse.” Id. (internal quotation marks and emphasis omitted).

      Montañez failed to offer sufficient evidence of a hostile work environment.
He stated that two managers, Carriann Schaub and Margarita Nunez, made
sexual jokes and comments about him and coworkers, and that Schaub once
asked him on a date. However, “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. Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (internal quotation marks omitted). Likewise, “[i]solated, minor acts or
occasional episodes do not warrant relief.” Brennan v. Metro. Opera Ass’n, Inc.,
192 F.3d 310, 318 (2d Cir. 1999).

       Montañez argues that the restaurant managers also made him clean,
screamed at him in front of customers, and set him up to breach the restaurant’s
security system as a part of the harassment. But additional work and
inappropriate or wrongful reprimands are insufficient to establish a hostile work
environment. See Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir.
2015) (allegations such as additional work, changes in schedule, removal from

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meetings, and wrongful reprimands were insufficient to establish a hostile work
environment). Even if Montañez was set up by Schaub to breach the security
system, he was ultimately not disciplined, given his job back, and merely
cautioned not to smoke on duty again. The district court properly granted
summary judgment on this claim.

       Title VII Retaliation. Retaliation claims under Title VII require “(1)
participation in a protected activity; (2) that [the employer] knew of [plaintiff’s]
participation in that protected activity; (3) that [plaintiff] suffered an adverse
employment action; and (4) that there exists a causal relationship between the
protected activity and the adverse employment action.” Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010). If a defendant establishes a legitimate,
non‐discriminatory reason for the adverse action, the plaintiff must present
evidence that retaliation was the “but‐for” cause of the action. Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). “Temporal proximity alone is
insufficient to defeat summary judgment at the pretext stage.” Zann Kwan v.
Andalex Group LLC, 737 F.3d 834, 847 (2d Cir. 2013).

      Even assuming that Montañez’s complaints were protected activity,
Montañez cannot show that retaliation was the “but‐for” cause of his probation
and termination. McDean proffered a legitimate, non‐discriminatory reason for
both disciplinary actions, and Montañez offered no evidence that the general
manager’s decision to place him on probation or fire him was due to retaliatory
animus. And to the extent he claims that McDean’s failure to pay him for all his
hours worked was retaliation, he offered no evidence about which manager was
responsible for payroll, let alone that that person was aware of Montañez’s
harassment reports.

       We have reviewed the remainder of Montañez’s 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




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