         09-0601-cv
         Kolenovic v. ABM Janitorial Services-Northeast, Inc., et al.


                                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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROBERT D. SACK,
 9                PETER W. HALL,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SANELA KOLENOVIC,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                         09-0601-cv
18
19       ABM INDUSTRIES INCORPORATED and ABM
20       ENGINEERING SERVICES COMPANY,
21
22                    Defendants,
23
24       ABM JANITORIAL SERVICES-NORTHEAST,
25       INC. and FRANCIS NAGROWSKI,
26
27                Defendants-Appellees. *
28       - - - - - - - - - - - - - - - - - - - -X


                *
               The Clerk of Court is directed to amend the official
         caption to conform to the listing of the parties above.
 1   APPEARING FOR APPELLANT:   Derek Smith (Ismail S. Sekendiz,
 2                              on the brief), Akin & Smith,
 3                              LLC, New York, NY.
 4
 5   APPEARING FOR APPELLEES:   Craig R. Benson, Littler
 6                              Mendelson, P.C., New York, NY.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Pauley, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED in part, VACATED in part, and REMANDED for further
14   proceedings.
15
16        Plaintiff-appellant Sanela Kolenovic appeals from a
17   judgment of the United States District Court for the
18   Southern District of New York (Pauley, J.), which granted
19   defendants-appellees’ motion for summary judgment. We
20   assume the parties’ familiarity with the underlying facts,
21   the procedural history, and the issues presented for review.
22
23        “We review an award of summary judgment de novo, and
24   will uphold the judgment if the evidence, viewed in the
25   light most favorable to the party against whom it is
26   entered, demonstrates that there are no genuine issues of
27   material fact and that the judgment is warranted as a matter
28   of law.” Global Network Commc’ns, Inc. v. City of New York,
29   562 F.3d 145, 150 (2d Cir. 2009); see also Fed. R. Civ. P.
30   56(c). Following de novo review, we vacate the district
31   court’s grant of summary judgment with respect to
32   Kolenovic’s hostile work environment claim under the New
33   York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §
34   8-101 et seq., and remand for further proceedings. We
35   affirm the district court’s grant of summary judgment with
36   respect to all of Kolenovic’s other claims.
37
38        The Local Civil Rights Restoration Act of 2005
39   (“Restoration Act”), N.Y.C. Local Law No. 85 (2005),
40   requires that claims brought under the NYCHRL be evaluated
41   separately from counterpart claims brought under Title VII
42   of the Civil Rights Act of 1964 (“Title VII”), as amended,
43   42 U.S.C. § 2000 et seq., and the New York State Human
44   Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. See
45   Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d

                                  2
 1   Cir. 2009) (explaining that the Restoration Act “abolish[ed]
 2   ‘parallelism’ between the [NYCHRL] and federal and state
 3   anti-discrimination law”); Restoration Act § 7 (“The
 4   provisions of this [] title shall be construed liberally for
 5   the accomplishment of the uniquely broad and remedial
 6   purposes thereof, regardless of whether federal or New York
 7   State civil and human rights laws, including those laws with
 8   provisions comparably-worded to provisions of this title[,]
 9   have been so construed.”); id. § 1 (“Interpretations of New
10   York state or federal statutes with similar wording may be
11   used to aid in interpretation of [the NYCHRL], viewing
12   similarly worded provisions of federal and state civil
13   rights laws as a floor below which the [NYCHRL] cannot fall
14   . . . .”).
15
16        Prior to the issuance of our decision in Loeffler, the
17   district court evaluated Kolenovic’s Title VII, NYSHRL, and
18   NYCHRL hostile work environment claims under the single
19   “severe or pervasive” standard. We affirm the district
20   court’s grant of summary judgment with respect to the
21   federal and state law hostile work environment claims, but
22   under the Restoration Act and Loeffler, the NYCHRL claim
23   should have been evaluated separately from its federal and
24   state counterpart claims. Accordingly, we vacate the
25   district court’s grant of summary judgment with respect to
26   the NYCHRL hostile work environment claim. We remand to the
27   district court to decide whether to exercise supplemental
28   jurisdiction over this claim. If it decides to do so, “[w]e
29   leave it to the district court to interpret any specific,
30   applicable provisions [of the Restoration Act and the
31   NYCHRL] in the first instance.” Loeffler, 582 F.3d at 278-
32   79. On the other hand, the district court may consider that
33   this area of law would benefit from further development in
34   the state courts, and for that reason dismiss the claim
35   without prejudice to refiling in state court.
36
37        We affirm the district court’s grant of summary
38   judgment with respect to the federal, state, and city law
39   quid pro quo claims. The record does not permit a
40   reasonable jury to find the requisite link between the
41   bachelor party comment and Kolenovic’s requested raise.
42   Kolenovic testified at her deposition that she assumed that
43   any “extra money” she received at the bachelor party would
44   be from her supervisor’s “friends at the bachelor party.”
45   Accordingly, she did not construe the comment to suggest

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 1   that she would receive a raise if she attended the bachelor
 2   party or that she would be denied a raise otherwise.
 3   Moreover, Kolenovic acknowledged in her November 3, 2006
 4   email that she dropped her request for a raise when she
 5   learned from her supervisor that Valerie Burd, District
 6   Manager for ABM Janitorial Services-Northeast, Inc. (“ABM
 7   Janitorial”), was not in favor of the raise--a reason
 8   entirely independent of the bachelor party comment.
 9
10        We affirm the district court’s grant of summary
11   judgment with respect to the federal, state, and city law
12   retaliation claims. Assuming arguendo that the denial of
13   Kolenovic’s transfer request constituted an adverse
14   employment action sufficient to satisfy the third element of
15   her prima facie case, ABM Janitorial presented a legitimate,
16   non-retaliatory reason for the denial and Kolenovic failed
17   to establish pretext. ABM Janitorial proffered that there
18   were no appropriate positions available in which to place
19   Kolenovic at the time of her transfer request. Kolenovic
20   responded only that “[i]n assessing the sheer size of [ABM
21   Janitorial’s] operation, [ABM Janitorial’s] claim that there
22   were no other available positions to which [Kolenovic] could
23   be transferred could clearly be found to be pretextual by a
24   reasonable fact finder, and needs to be definitively
25   determined by a jury.” Appellant’s Br. 37. Such conjecture
26   cannot establish pretext. See Cifarelli v. Village of
27   Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (“[M]ere conclusory
28   allegations, speculation or conjecture will not avail a
29   party resisting summary judgment.”).
30
31        There is no merit in Kolenovic’s remaining arguments.
32   Accordingly, the judgment of the district court is hereby
33   AFFIRMED in part, VACATED in part, and REMANDED for further
34   proceedings consistent with this order. Any subsequent
35   appeal should be returned to this panel for further review.
36
37                              FOR THE COURT:
38                              CATHERINE O’HAGAN WOLFE, CLERK
39




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