18-2415-cv
Flowers v. Connecticut Light and Power Company

                           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 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
29th day of May, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
            RICHARD J. SULLIVAN,
                  Circuit Judges.
___________________________________________

PATRICIA A. FLOWERS,
                   Plaintiff-Appellant,

                v.                                                         18-2415-cv

CONNECTICUT LIGHT AND POWER COMPANY, AKA
NORTHEAST UTILITIES, AKA EVERSOURCE ENERGY,

                  Defendant-Appellee.
___________________________________________

For Plaintiff-Appellant:                                    Patricia Flowers, pro se, West
                                                            Hartford, CT.

For Defendant-Appellee:                                     Honor Southard Heath, Senior
                                                            Counsel, Eversource Energy Service
                                                            Company, Berlin, CT.
        Appeal from a judgment of the United States District Court for the District of Connecticut

(Bryant, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Patricia Flowers (“Flowers”), proceeding pro se, appeals from the

September 29, 2017 decision and order of the United States District Court for the District of

Connecticut (Bryant, J.) granting summary judgment in favor of her former employer, the

Connecticut Light and Power Company (“Eversource”), with respect to her employment

discrimination and retaliation claims brought pursuant to 42 U.S.C. § 1981 and Title VII of the

Civil Rights Act of 1964.

        We review de novo a district court’s order granting a motion for summary judgment.

Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). Summary judgment is

appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although we draw all inferences in favor of

the non-moving party, that non-moving party may not rely upon “conclusory statements or mere

allegations,” but must instead “go beyond the pleadings, and by his or her own affidavits, or by

the depositions, answers to interrogatories, and admissions on file, designate specific facts showing

that there is a genuine issue for trial.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (internal

quotation marks and alterations omitted). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

                                          *       *       *


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        As an initial matter, Flowers argues that the district court granted only partial summary

judgment because it did not mention Flowers’s claims brought under 42 U.S.C. § 1981 in its order.

After reviewing the decision below, we disagree. “[T]he order clearly stated that the [complaint]

was dismissed in its entirety, and the court clearly intended exactly that result[.]” Cox v. United

States, 783 F.3d 145, 148 (2d Cir. 2015). In other words, though the district court did not discuss

Flowers’s § 1981 claims, it clearly intended to dismiss them, and we may affirm on any grounds

supported by the record, whether or not explicitly relied upon by the district court. See Mitchell v.

City of New York, 841 F.3d 72, 77 (2d Cir. 2016). As discussed below, the district court properly

granted summary judgment on all of Flowers’s claims.

        First, we affirm the district court’s dismissal of Flowers’s discrimination claims. Flowers,

an African-American woman, asserts that Eversource discriminated against her in failing to

promote her from the position of Associate Analyst to that of Analyst in 2013. Failure-to-promote

claims brought under Title VII and § 1981 proceed under the burden-shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Patterson v. McLean Credit Union,

491 U.S. 164, 186–87 (1989), superseded by statute on other grounds, Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1074; Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir.

2000). Pursuant to this framework, a plaintiff must first establish a prima facie case of

discrimination, showing among other things, that she was qualified for the denied position. Id. at

150. If the plaintiff meets this burden, and the employer comes forward with evidence of a

legitimate, nondiscriminatory reason for its decision, the plaintiff must present sufficient evidence

for a rational finder of fact to infer that the employer’s proffered reason is pretext for discrimination


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in order to withstand summary judgment. Id. In conducting this analysis, we “must respect an

employer’s unfettered discretion to choose among qualified candidates.” Sassaman v. Gamache,

566 F.3d 307, 314 (2d Cir. 2009) (internal quotation marks and alterations omitted).

       Even assuming that Flowers has established a prima facie case of race-based

discrimination, we agree with the district court that she has failed to produce sufficient evidence

that the failure to promote her was motivated by discriminatory animus rather than by Eversource’s

stated motivations. Eversource has offered “legitimate, non-discriminatory reason[s],” McDonnell

Douglas, 411 U.S. at 802, for its failure to promote Flowers, including evidence that Flowers’s

work performance as an Associate Analyst was substandard and erratic. Indeed, only a few months

prior to Eversource’s failure to promote her, Flowers received a performance review indicating

that she at best met expectations as an Associate Analyst, a position beneath that to which she

sought to ascend. Flowers, for her part, has failed to offer sufficient evidence of pretext. See

Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“[E]ven in the discrimination context,

a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for

summary judgment.”). The district court therefore did not err in dismissing Flowers’s

discrimination claims and granting Eversource’s motion for summary judgment on those claims.

       Next, we affirm the district court’s decision to grant summary judgment in favor of

Eversource on Flowers’s retaliation claims predicated on her filing of an internal discrimination

complaint in 2013. Retaliation claims under Title VII and § 1981 are also subject to the McDonnell

Douglas framework. See Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015). Again,

even assuming that Flowers has established a prima facie showing of retaliation, Eversource has


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offered ample evidence of legitimate, non-retaliatory reasons for the allegedly adverse actions

taken toward Flowers following her filing of the complaint. Yet Flowers has failed to provide

sufficient evidence that these actions were instead motivated by discriminatory animus. For

example, Flowers highlights an exchange where an Eversource employee conveyed to her that the

company’s Information Technology Department was ending its investigation into an alleged

“spoofing” (i.e., hacking) of her email. Eversource, however, presented a non-retaliatory

justification for this interaction: The company had twice investigated Flowers’s “spoofing”

allegation and found it meritless. Flowers has failed to provide support for her claim that this

exchange in fact constituted a retaliatory threat, issued in response to her internal complaint.

       Finally, Flowers argues that the district court erred in declining to consider her two

additional allegations of retaliation: Eversource’s alleged inadequate investigation of her internal

discrimination complaint and its refusal to promote her for a second time in 2016. Flowers,

however, asserted these claims for the first time in her opposition to summary judgment, and the

district court therefore properly declined to consider them. See Wright v. Ernst & Young LLP, 152

F.3d 169, 178 (2d Cir. 1998) (recognizing that a party may not use an opposition to a dispositive

motion as a means to amend the complaint). In any event, Flowers has not provided evidence that

Eversource acted with a retaliatory motivation either when it determined the scope of its




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investigation or when it refused to promote Flowers in 2016.1

       We have considered all of Flowers’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

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




1
   Flowers asserts that her supervisor subjected her to disparate treatment based on her race
beginning in 2010. She also claims that Eversource engaged in an illegal cover-up of its
wrongdoing by omitting information from affidavits submitted to the Equal Employment
Opportunity Commission. Because Flowers raised both of these claims for the first time on appeal,
we decline to consider them here. See Askins v. Doe No. 1, 727 F.3d 248, 252 (2d Cir. 2013). We
also decline to consider Flowers’s argument, raised for the first time in her reply brief, that she
should have been granted leave to amend her complaint a second time. See JP Morgan Chase Bank
v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made
in an appellant’s opening brief are waived even if the appellant pursued those arguments in the
district court or raised them in a reply brief.”).

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