12-4896-cv
Mendez-Nouel v. Gucci America, 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.


        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
11th day of October, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            GERARD E. LYNCH,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

ADOLFO MENDEZ-NOUEL,

                                 Plaintiff-Appellant,

                           -v-                                             12-4896-cv

GUCCI AMERICA, INC.,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:         Rick Ostrove, Leeds Brown Law, P.C., Carle Place, N.Y.

Appearing for Appellee:          Michele A. Coyne (Kristina C. Hammond, on the brief), Kauff,
                                 McGuire & Margolis LLP, New York, N.Y.

      Appeal from the United States District Court for the Southern District of New York
(Engelmayer, 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 Adolfo Mendez-Nouel (“Mendez”) appeals from the November 8,
2012 decision and order of the United States District Court for the Southern District of New
York (Engelmayer, J.) granting summary judgment in favor of defendant-appellee Gucci
America, Inc. (“Gucci”) on Mendez’s suit alleging a sex-based hostile work environment and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

I.     Hostile Work Environment

         “[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive,”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)—both subjectively and objectively,
see, e.g., Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993)—“to alter the conditions of [the
victim’s] employment and create an abusive working environment,” Meritor, 477 U.S. at 67
(alteration in original) (internal quotation marks omitted). “And, of course, the plaintiff must
establish that the hostile or abusive treatment was because of his or her sex.” Redd v. N. Y. State
Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012).

        To establish the “severe or pervasive” element of a hostile work environment claim, a
plaintiff does not need to show that his “hostile working environment was both severe and
pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient
combination of these elements, to have altered [his] working conditions.” Pucino v. Verizon
Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010). It was not error for the district court
to conclude that here, considering “all the circumstances,” Harris, 510 U.S. at 23, the episodes
complained of were “simply too episodic, insufficiently serious, and . . . insufficiently tied to his
gender or sexual orientation, to have materially altered the conditions of [Mendez’s]
employment.”

         “Common sense, and an appropriate sensitivity to social context, will enable courts and
juries to distinguish between simple teasing or roughhousing among members of the same sex,
and conduct which a reasonable person in the plaintiff’s position would find severely hostile or
abusive.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). View in the light
most favorable to Mendez, the record indicates two instances of touching, the more significant
being an incident in which Mendez’s supervisor touched his lower back for four to five seconds.
There was also workplace banter about a supervisor’s sexual orientation and nightlife, and a
single occasion where a supervisor told Mendez he was gay but “[y]ou just don’t know it.”
Taken together, the alleged conduct does not rise to the level of a hostile work environment. See
Redd, 678 F.3d at 177 (discussing “[t]he line between complaints that are easily susceptible to
dismissal as a matter of law and those that are not,” with “[c]asual contact . . . normally . . .
unlikely to create a hostile environment in the absence of aggravating circumstances such as
continued contact after an objection,” and “[d]irect contact with an intimate body part
constitut[ing] one of the most severe forms of sexual harassment.” (Emphasis in original)
(internal citations and quotation marks omitted). Thus, we affirm the district court’s grant of
summary judgment on Mendez’s hostile work environment claim.


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II.     Retaliation

        On Mendez’s retaliation claim, the district court granted summary judgment on the basis
that the record contained only a “weak issue of fact” as to pretext and the evidence of a
legitimate, nondiscriminatory reason for Mendez’s termination was abundant. This is consistent
with Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), which reasoned that
“an employer would be entitled to judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only
a weak issue of fact as to whether the employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.”

         It is undisputed that Gucci began an investigation after one of Mendez’s colleagues
expressed concerns about his behavior to Gucci’s Human Relations department. That
investigation revealed that other employees were disturbed by Mendez’s seemingly unstable and
distracted actions, providing Gucci with an “abundant” independent basis for terminating
Mendez. Further, although Mendez argues that the investigation into the complaints lodged
against him was in and of itself pretextual and that the complaints were untrue, the record shows
that Gucci’s HR department took the investigation seriously, with copious notes memorializing
conversations with other employees. Mendez has not put forward evidence that suggests
unresolved questions of material fact with respect to his termination and Gucci’s motive. See
McPherson v. N. Y. C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a discrimination
case . . . we are decidedly not interested in the truth of the allegations against the plaintiff. We are
interested in what ‘motivated the employer,’ the factual validity of the underlying imputation
against the employee is not at issue.” (internal citation omitted)). Thus, we also affirm the
district court’s grant of summary judgment as to Mendez’s retaliation claim.

        Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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