11-3935-cv
Solomon v. Southampton Union Free Sch. Dist.


                      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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on the
 10th day of December, two thousand twelve.

PRESENT:     ROBERT D. SACK,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

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SHARON SOLOMON,
                          Plaintiff-Appellant,

             -v.-                                     11-3935-cv

SOUTHAMPTON UNION FREE SCHOOL DISTRICT,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                ANNETTE G. HASAPIDIS, Law Offices of
                                        Annette G. Hasapidis, South Salem, New
                                        York.

FOR DEFENDANT-APPELLEE:                BETH S. GEREG (Rondiene E. Novitz, on
                                       the brief), Cruser, Mitchell & Novitz,
                                       LLP, Farmingdale, New York.

             Appeal from the United States District Court for the
Eastern District of New York (Feuerstein, J.).
             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
          Plaintiff-appellant Sharon Solomon appeals from the
district court's judgment entered September 6, 2011, in favor of
defendant-appellee Southampton Union Free School District (the
"District").   Judgment was entered after the district court, by
order entered September 1, 2011, granted the District's motion for
summary judgment and dismissed Solomon's hostile work environment,
retaliation, and race, gender, and disability discrimination claims
brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., the Americans with Disabilities Act, 42 U.S.C.
§ 12112 et seq., and 42 U.S.C. § 1983.    We assume the parties'
familiarity with the facts, procedural history, and specification of
issues for review.
          Solomon challenges a number of the district court's
rulings, including its conclusion that she failed to present a
genuine dispute as to material fact regarding her hostile work
environment claims.    We review a grant of summary judgment de novo,
resolving all ambiguities and drawing all inferences in favor of the
non-moving party.    Nagle v. Marron, 663 F.3d 100, 104-05 (2d Cir.
2011).
          To prevail on a hostile work environment claim, the
plaintiff must show misconduct of a racial or sexual nature
"sufficiently severe or pervasive to alter the conditions of [her]
employment," both subjectively and objectively.   Feingold v. New
York, 366 F.3d 138, 149-50 (2d Cir. 2004) (citation and internal
quotation marks omitted).    "To withstand summary judgment, a
plaintiff must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were
sufficiently continuous and concerted to have altered the conditions

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of her working environment."   Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (citation and
internal quotation marks omitted); see Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002).   The plaintiff may rely on other employees'
firsthand testimony about acts of discrimination, even if plaintiff
did not personally experience those acts, see Perry v. Ethan Allen,
Inc., 115 F.3d 143, 150-51 (2d Cir. 1997); Schwapp v. Town of Avon,
118 F.3d 106, 111 (2d Cir. 1997), but those acts must actually
constitute discrimination and not be "merely tinged with offensive
. . . connotations," Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998); accord Raniola v. Bratton, 243 F.3d 610, 621 (2d
Cir. 2001).
          We conclude that Solomon did not present sufficient
evidence of discriminatory conduct to support her hostile work
environment claim.   Although she points to many examples of alleged
discriminatory acts, under greater scrutiny the incidents do not
give rise to a reasonable inference of discrimination.   For example,
Solomon argues that Timothy Frazier, the principal of the
intermediate school, hung a confederate flag in the school hallways,
but the confederate flag was actually part of Georgia's state flag,
which Frazier had hung along with several other state flags.    In
another example, Solomon claimed that Frazier told her to "serve
coffee and cake" to her white teaching aides.   At her April 9, 2008
examination pursuant to N.Y. Gen. Mun. Law § 50-h, however, she
explained that Frazier thought there was a communication problem
between Solomon and her teaching aides, and that another school
official -- not Frazier -- "chimed in and said, 'You need to pat
them on the back, and you should buy them coffee and cake and make

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nice with them.'"    (A 831).   No reasonable jury could find that
these actions, considered in context, evidenced a discriminatory
motive.
          While the record contains some evidence that Frazier was
abusive to a number of individuals, no reasonable jury could find
from this record, taken as a whole, that Solomon was subjected to a
hostile environment on account of her race, gender, or disability.
Solomon has been teaching in the District since 1998 -- indeed, she
still is teaching in the District -- but she has identified only a
handful of incidents of alleged discrimination.     As a matter of law,
these examples, individually or collectively, do not rise to the
level of an actionable hostile work environment.
          For similar reasons, we reject Solomon's remaining
challenges to the district court's rulings on her discrimination and
retaliation claims.    Where a plaintiff relies on circumstantial
evidence to show the defendant's discriminatory (or retaliatory)
intent, as Solomon does here, the typical Title VII burden-shifting
framework applies.    See Raniola, 243 F.3d at 622.   The plaintiff may
rely on a presumption of discriminatory intent by making out a prima
facie case, but the defendant can rebut that presumption by showing
a legitimate, non-discriminatory reason for the conduct.    See Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973));
Raniola, 243 F.3d at 622.    If the defendant meets this burden, "to
defeat summary judgment . . . the plaintiff's admissible evidence
must show circumstances that would be sufficient to permit a
rational finder of fact to infer that the defendant's [conduct] was
more likely than not based in whole or in part on discrimination."

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Feingold, 366 F.3d at 152 (citation and internal quotation marks
omitted).    It is not enough to produce "simply some evidence"; the
plaintiff must present "sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by
the defendant were false, and that more likely than not
discrimination was the real reason for the employment action."
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)
(alterations, citation, and internal quotation marks omitted).
            For each alleged adverse action here, the District
presented a non-discriminatory explanation for the conduct,
rebutting the presumption of discriminatory intent and shifting the
burden back to Solomon.    To avoid summary judgment, she had to
present sufficient evidence from which a jury could reasonably find
that these explanations were pretextual and that the District was
really motivated by a discriminatory animus.    For substantially the
reasons cited in the district court's opinion, and based on our
independent review of the record, we agree that she failed to do so.
            We have considered Solomon'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




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