18‐1232‐cv
Fletcher v. ABM Building Value


                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 29th day of May, two thousand nineteen.

PRESENT:            DENNY CHIN,
                    SUSAN L. CARNEY,
                                         Circuit Judges,
                    BRENDA K. SANNES,
                                         District Judge.*
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CHERISE FLETCHER,
                                        Plaintiff‐Appellant,

                                        v.                                             18‐1232‐cv

ABM BUILDING VALUE, jointly and individually,
DBA ABM, KATHERINE COLLADO,
                     Defendants‐Appellees.

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*        Judge Brenda K. Sannes, of the United States District Court for the Northern District of New
York, sitting by designation.
FOR PLAINTIFF‐APPELLANT:                   LAURIE E. MORRISON, Law Office of Laurie E.
                                           Morrison, New York, New York.

FOR DEFENDANTS‐APPELLEES:                  CRAIG R. BENSON (Joseph E. Field, on the
                                           brief), Littler Mendelson, P.C., New York, New
                                           York.

              Appeal from the United States District Court for the Southern District of

New York (Buchwald, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Cherise Fletcher appeals the district courtʹs March 29,

2018 judgment in favor of defendants‐appellees ABM Building Value (ʺABMʺ) and

Katherine Collado (together, ʺDefendantsʺ) dismissing Fletcherʹs discrimination and

retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;

42 U.S.C. § 1981; and the New York State Human Rights Law (the ʺNYSHRLʺ), N.Y. Exec.

Law § 290 et seq. By memorandum and order entered March 28, 2018, the district court

granted Defendantsʹ motion for summary judgment. Fletcher also challenges the district

courtʹs denial of her motion for additional depositions and document production. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

              Fletcher, an African American woman, began working at ABM in March

2010 on a temporary basis. In April 2011, she was given a full time position as an HR



                                             ‐2‐
Administrator, responsible for recruiting employees, with a starting salary of $40,000.

Thereafter, issues with her performance arose, as documented by several managers. In

June 2012, Fletcher was issued two notices of corrective action because of performance

issues. In November 2012, Fletcher was assigned to work in the reception area, called the

ʺBubble,ʺ and while she was given additional administrative duties, she was permitted to

keep her title and salary and retained some of her HR responsibilities.

              Fletcher provided a sworn statement that Collado, her direct supervisor,

and two other ABM supervisors made comments motivated by her race, gender, and sex,

including calling her a ʺbitchʺ and ʺblack bitch,ʺ and referring to her as ʺbubble girl.ʺ

Appʹx at 79‐84, 119, 124‐25, 139‐40. At deposition, Fletcher testified that she complained

to ABM supervisors about the alleged discrimination.

              On December 4, 2012, Collado noticed that two spreadsheets Fletcher used

to evaluate and track employees were missing from a shared ABM drive. ABMʹs

information technology department discovered that Fletcher accessed the files, sent them

to her personal email account, deleted the files from the shared drive, and deleted the

sent emails from her work account. Defendants testified that this violated ABMʹs

computer use policy, and ABM terminated Fletcher on December 12, 2012.

              On June 26, 2014, Fletcher filed this complaint, alleging that Defendants

discriminated and retaliated against her. As set forth above, the district court granted

summary judgment in favor of Defendants. This appeal followed.


                                             ‐3‐
                                STANDARD OF REVIEW

              We review de novo the district courtʹs grant of summary judgment,

ʺconstruing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in [its] favor.ʺ Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). A movant is entitled to summary judgment if

ʺthere is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). We review a district courtʹs discovery

rulings for abuse of discretion. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004).

                                       DISCUSSION

              On appeal, Fletcher argues that the district court erred in granting

summary judgment dismissing her discrimination and retaliation claims and abused its

discretion in denying her additional discovery.

I.     Discrimination Claims

       A.     Applicable Law

              Under Title VII and § 1981, we generally analyze race discrimination claims

under the three‐step McDonnell Douglas burden‐shifting framework. See, e.g., Kirkland v.

Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). First, an employee must present a prima facie case of race

discrimination. Kirkland, 760 F.3d at 225. To establish a prima facie case of race

discrimination, ʺthe plaintiff must demonstrate that: (1) she fell within a protected


                                             ‐4‐
class . . . ; (2) she was qualified for the position she held; (3) she was subjected to an

adverse employment action; and (4) the adverse action occurred under circumstances

giving rise to an inference of discrimination.ʺ Robinson v. Concentra Health Servs., Inc., 781

F.3d 42, 45 (2d Cir. 2015). This requirement is ʺminimalʺ and ʺa plaintiffʹs burden is

therefore not onerous.ʺ Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d

Cir. 2012) (internal quotation marks omitted). Second, if the plaintiff establishes a prima

facie case, ʺthe burden shifts to the employer to give a legitimate, non‐discriminatory

reason for its actions.ʺ Kirkland, 760 F.3d at 225. Third, if the employer proffers a reason,

the plaintiff then has the burden of ʺshow[ing] that the employerʹs explanation is a

pretext for race discrimination.ʺ Id. To defeat summary judgment, ʺthe [plaintiffʹs]

admissible evidence must show circumstances that would be sufficient to permit a

rational finder of fact to infer that the [employerʹs] employment decision was more likely

than not based in whole or in part on discrimination.ʺ Id. (second alteration in original).

       B.     Application

              On appeal, Fletcher argues that, because of her race and gender, she was (1)

offered a lower starting salary, (2) demoted, (3) subjected to a hostile work environment,

and (4) terminated. The district court held that Fletcher failed to demonstrate a genuine

issue of fact as to each of these claims. We agree.




                                              ‐5‐
              1.     Salary

              Fletcher argues that she was discriminated against because she was offered

a starting salary of $34,000 per annum when she was offered full‐time employment, a

sum she contends was less than the salary paid to non‐African American employees.

This argument fails for the simple reason that Fletcher started at a salary of $40,000, as

she persuaded her supervisors to increase her salary to that amount. Hence, because

Fletcherʹs starting salary was the same as that of other similarly situated employees,

Fletcher failed to show that ʺshe was paid less than non‐members of her class for work

requiring substantially the same responsibility.ʺ Belfi v. Prendergast, 191 F.3d 129, 139 (2d

Cir. 1999).

              2.     Transfer

              Fletcher argues that her transfer to the reception position was a demotion

and an adverse employment action because it changed her work responsibilities and

moved her to an undesirable location. An adverse employment action is one that results

in a ʺmaterially adverse change in the terms and conditions of employment,ʺ and the

change is materially adverse if it is ʺmore disruptive than a mere inconvenience or an

alteration of job responsibilities.ʺ Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755

(2d Cir. 2004) (internal quotation marks omitted) (listing as examples of adverse actions:

ʺa demotion evidenced by a decrease in wage or salary, a less distinguished title, . . . [or]

significantly diminished material responsibilitiesʺ).


                                             ‐6‐
              Here, no reasonable jury could have found that Fletcherʹs transfer

constituted an adverse employment action. She retained her salary and title and many of

her prior recruiting responsibilities, and she remained in the same department and

reported to the same supervisor. While Fletcherʹs new work responsibilities included

ʺdoing more . . . administrative work than actually physically recruiting and facing

candidates,ʺ Appʹx at 93, the move was not accompanied by a cut in pay, a change in

title, a diminution in authority, or a measurable loss of status, see Wanamaker v. Columbian

Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). Accordingly, the district court properly

dismissed Fletcherʹs discrimination claim based on her purported demotion.

              3.     Hostile Work Environment

              Fletcher argues that there was a hostile work environment at ABM because

of the ʺrepeated racist and sexist slurs.ʺ Appellantʹs Br. at 47. To establish a hostile work

environment claim, ʺa plaintiff must show that the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victimʹs employment and create an abusive working

environment.ʺ Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (internal quotation

marks omitted).

              Here, Fletcherʹs hostile work environment claim fails because she has not

presented evidence from which a jury could find that the insults were sufficiently severe

or pervasive to alter the conditions of her employment. In fact, Fletcher could not


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remember the time or context in which many of the alleged remarks occurred.

Accordingly, the district court properly dismissed Fletcherʹs hostile work environment

claim.

              4.     Termination

              The termination of Fletcherʹs employment is an adverse employment

action, see Sanders, 361 F.3d at 755, but Fletcher failed to show that it occurred under

circumstances giving rise to an inference of discrimination. On this record, a reasonable

jury could only conclude that Defendants terminated Fletcher because she sent ABM

records to her personal email, deleted those records from the shared drive, and tried to

cover up her actions. This violated an ABM computer use policy, which provided that

violators ʺmay be subject to disciplinary action, including termination of employment,ʺ

Appʹx at 250, which policy Fletcher acknowledged that she received, read, and

understood.

              The remarks by Collado and the other HR managers, even assuming they

were made, are not sufficient to give rise to an inference of discrimination because ʺstray

remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make

out a case of employment discrimination.ʺ Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d

Cir. 1998). Lastly, Fletcher cannot compare how she was treated to how Collado was

treated for deleting files because Collado did not engage in comparable conduct. See Ruiz

v. County of Rockland, 609 F.3d 486, 494 (2d Cir. 2010) (requiring for comparable conduct


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ʺa reasonably close resemblance of the facts and circumstances of plaintiffʹs and

comparatorʹs casesʺ ). Collado only deleted documents that she drafted for herself and

no one else used, and she did not try to cover up her actions. Accordingly, Fletcher has

not put forth evidence giving rise to an inference of discrimination in this respect.

II.    Retaliation Claims

              Under Title VII and § 1981, retaliation claims are generally evaluated under

the McDonnell Douglas burden‐shifting framework. Littlejohn v. City of N.Y., 795 F.3d 297,

315‐16 (2d Cir. 2015). Here, Fletcher argues that her demotion, disciplinary write ups,

and termination were adverse employment actions. For the reasons stated above,

Fletcherʹs transfer was not an adverse employment action. In addition, Fletcherʹs

disciplinary write ups were not adverse employment actions because they were only

notices and did not result in disciplinary action. See Weeks v. New York State (Div. of

Parole), 273 F.3d 76, 86 (2d Cir. 2001), abrogated on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002) (holding notices of discipline did not constitute

adverse employment action where the notices did not create a materially adverse change

in employeeʹs working conditions). The only adverse employment action, therefore, was

Fletcherʹs termination.

              Assuming Fletcher established a prima facie case of retaliation as to her

termination, her claim still fails as a matter of law. Defendants articulated a legitimate,

non‐discriminatory reason for terminating Fletcher ‐‐ her violation of company policy.


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We therefore turn to the question of whether Fletcher has adduced sufficient evidence

from which a reasonable factfinder could conclude that she was retaliated against because

of her protected activity. On this record, ʺno reasonable trier of fact could conclude that

retaliation was the ʹbut forʹ reason for [Fletcherʹs] termination.ʺ Zann Kwan v. Andalex

Grp. LLC, 737 F.3d 834, 852 (2d Cir. 2013). As described above, on this record, a

reasonable jury could only find that Fletcher violated ABMʹs computer use policy.

Although the termination came close in time to Fletcherʹs protected activity, ʺ[t]emporal

proximity alone is insufficient to defeat summary judgment at the pretext stage.ʺ Id. at

847. Accordingly, the district court properly dismissed Fletcherʹs retaliation claims.

III.      Discovery Claims

               Fletcher challenges the district courtʹs denial of her motion to (1) depose the

two non‐lawyer members of the Termination Review Committee (ʺTRCʺ), and (2) for

additional depositions and document production.

               The district court did not abuse its discretion in denying Fletcherʹs motion

to depose the two non‐lawyer members of the TRC because the TRCʹs discussions and

communications were protected by the attorney‐client privilege. The communications of

the two TRC non‐lawyer members were made to ABM counsel at the direction of Brad

Neilly, the Vice President of HR, to secure legal advice from counsel. This information,

therefore, was clearly privileged. See Upjohn Co. v. United States, 449 U.S. 383, 394‐95

(1981).


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              Likewise, the district court did not abuse its discretion in denying Fletcherʹs

request for additional depositions and document production. First, while ʺ[e]vidence

relating to company‐wide practices may reveal patterns of discrimination against a

group of employees,ʺ Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990),

Fletcher offered no evidence suggesting there was systematic, widespread, or severe

discrimination by ABM. Second, the district court has ʺbroad discretion to direct and

manage the pre‐trial discovery process.ʺ Wills, 379 F.3d at 41. Here, the district court

denied Fletcherʹs requests because the requests presented new arguments that ignored

the discovery procedure established by the court. Accordingly, we cannot say that the

court abused its discretion.

                                           * * *

              We have considered Fletcherʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




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