     15-76-cv
     Dotel v. Walmart Stores, Inc.

                                     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 the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   14th day of January, two thousand sixteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               PETER W. HALL,
 7               SUSAN L. CARNEY,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   JULY DOTEL,
12
13                                     Plaintiff-Appellant,
14
15                             v.                                                15-76-cv
16
17   WALMART STORES, INC.,
18
19                           Defendant-Appellee.
20   _____________________________________________________
21
22   Appearing for Appellant:          Igor G. Kuperman, Law Offices of Fromzel & Kuperman LLC,
23                                     Stamford, CT.
24
25   Appearing for Appellee:           Craig Thomas Dickinson, Littler Mendelson, P.C., New Haven,
26                                     CT.
27
28   Appeal from the United States District Court for the District of Connecticut (Underhill, J.).
29
30        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
31   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 1            July Dotel appeals from the December 17, 2014 judgment of the United States District
 2   Court for the District of Connecticut (Underhill, J.) dismissing her complaint against Walmart
 3   Stores Inc. that alleged sex discrimination, hostile work environment, retailation and intentional
 4   infliction of emotional distress. We assume the parties’ familiarity with the underlying facts,
 5   procedural history, and specification of issues for review.
 6
 7           Dotel’s claims are analyzed pursuant to the familiar burden-shifting framework set forth
 8   in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the McDonnell Douglas
 9   analysis, plaintiff must first establish a prima facie case of a Title VII violation, which shifts the
10   burden to the defendant to articulate a legitimate, non-discriminatory reason for its conduct, at
11   which point the burden shifts back to the plaintiff to show that defendant’s explanations are a
12   pretext for impermissible discrimination. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
13   714 (2d Cir. 1996). Dotel also alleged employment discrimination claims under the Connecticut
14   Fair Employment Practices Act. These claims are governed by the same standards applicable to
15   Title VII claims. Proctor v. MCI Commc’ns Corp., 19 F. Supp. 2d 11, 14, n.1 (D. Conn. 1998).
16
17           Here, the district court assumed arguendo that Dotel made out a prima facie case. We
18   agree with the district court’s holding that assuming Dotel made out a prima facie case, she did
19   not carry her burden of demonstrating Walmart’s legitimate, non-discriminatory explanation is
20   pretextual. To demonstrate pretext, a plaintiff must establish “circumstances that would be
21   sufficient to permit a rational finder of fact to infer that the [employer’s] employment decision
22   was more likely than not based in whole or in part on discrimination.” Kirkland v. Cablevision
23   Sys., 760 F.3d 223, 225 (2d Cir. 2014) (alteration in the original) (internal quotation marks
24   omitted). No such circumstances exist here. Walmart’s legitimate, nondiscriminatory reason for
25   Dotel’s reduced hours is that her supervisor used a computer program to set hours based on an
26   associate’s work status and availability. There is nothing in the record to indicate that her
27   supervisor chose the scheduling program with an eye toward eliminating her hours, knowing that
28   it favored full-time employees over part-time employees such as Dotel.
29
30           Similarly, the record does not raise a question of material fact on Dotel’s hostile work
31   environment claim. Under Title VII, “a plaintiff must produce enough evidence to show that the
32   workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
33   severe or pervasive to alter the conditions of the victim’s employment and create an abusive
34   working environment.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)
35   (internal quotation marks omitted). “It is axiomatic that mistreatment at work, whether through
36   subjection to a hostile environment or through [other means], is actionable under Title VII only
37   when it occurs because of an employee’s . . . protected characteristic,” such as gender. Brown v.
38   Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Assuming arguendo that Dotel believes she was
39   the victim of a sex-based hostile work environment, the record lacks objective evidence from
40   which to raise a material question of fact sufficient for her suit to survive summary judgment.
41   Dotel argues that her supervisor engaged in abusive insults and verbal harassment of herself and
42   other women on a daily basis, and while the majority of those insults were gender-neutral on
43   their face, each could also be read as insulting to women. However, the record does not support
44   such a finding. Dotel’s contemporaneous written complaints make no mention of gender-based
45   comments directed toward her, and there is no evidence in the record to suggest her supervisor
46   treated the female associates in the department differently than the one male associate. Indeed,


                                                        2
 1   the strongest inference that can be drawn from the record is that the supervisor was rude to all the
 2   department’s associates. Although Dotel also alleged that her supervisor had stated that “women
 3   [are] good for nothing,” App’x at 322-23, this isolated statement is not “sufficiently severe or
 4   pervasive to alter the conditions of [Dotel’s] employment and create an abusive working
 5   environment.” Gorzynski, 596 F.3d at 102.
 6
 7            Finally, the district court correctly granted summary judgment on Dotel’s state law claim
 8   of intentional infliction of emotional distress. “In order for the plaintiff to prevail in a case for
 9   liability under . . . [intentional infliction of emotional distress], four elements must be
10   established. It must be shown: (1) that the actor intended to inflict emotional distress or that he
11   knew or should have known that emotional distress was the likely result of his conduct; (2) that
12   the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the
13   plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe.”
14   Appleton v. Bd. of Educ. of the Town of Stonington, 254 Conn. 205, 210 (2000) (internal
15   quotation marks omitted). “Liability for intentional infliction of emotional distress requires
16   conduct that exceeds “all bounds usually tolerated by decent society.” Hartmann v. Gulf View
17   Estates Homeowners Ass’n, 869 A.2d 275, 278 (Conn. App. Ct. 2005) (internal quotation marks
18   omitted). The conduct complained of here simply does not rise to that level.
19
20          We have considered the remainder of Dotel’s arguments and find them to be without
21   merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
22   own costs.
23
24
25                                                         FOR THE COURT:
26                                                         Catherine O’Hagan Wolfe, Clerk
27




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