     14-3914
     Inguanzo v. Housing & Services, Incorporated 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                              Circuit Judges.
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       MARIAN INGUANZO,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-3914
17
18       HOUSING & SERVICES, INCORPORATED et
19       al.,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
               The Honorable Geoffrey W. Crawford, United States
         District Judge for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             MICHAEL H. ZHU, MICHAEL H. ZHU
 2                              P.C., New York, New York.
 3
 4   FOR APPELLEES:             RHONDA LISA EPSTEIN, HOEY, KING,
 5                              EPSTEIN, PREZIOSO & MARQUEZ, New
 6                              York, New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Ramos, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Marian Inguanzo appeals from the judgment of the United
16   States District Court for the Southern District of New York
17   (Ramos, J.), granting summary judgment in favor of
18   defendants-appellees. We assume the parties’ familiarity
19   with the underlying facts, the procedural history, and the
20   issues presented for review.
21
22        “We review a district court’s grant of summary judgment
23   de novo, construing the evidence in the light most favorable
24   to the non-moving party and drawing all reasonable
25   inferences in its favor.” Allianz Ins. Co. v. Lerner, 416
26   F.3d 109, 113 (2d Cir. 2005).
27
28        1. Inguanzo challenges the dismissal of her Title VII
29   failure to promote claims. However, with respect to the
30   Scatter Site position, applicants were contractually
31   required to have a license of social work (“LMSW”), which
32   Inguanzo did not possess; so she was unqualified for the
33   position. J.A. 130-31. As for the Narragansett position,
34   Inguanzo concedes that her claim as to this position is
35   time-barred. Summary judgment was therefore proper on these
36   claims.
37
38        2. Inguanzo contends that a genuine issue of material
39   fact remains on her Title VII claim alleging denial of
40   training opportunities. A plaintiff “sustains an adverse
41   employment action if he or she endures a materially adverse
42   change in the terms and conditions of employment.” Galabya
43   v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)
44   (internal quotation marks omitted). As the district court
45   found, Inguanzo identified no negative consequence stemming
46   from the alleged denial of training.
47
                                  2
 1        3. With respect to Inguanzo’s claim that her
 2   termination was motivated by discrimination, she has failed
 3   to adduce sufficient evidence to sustain her burden.
 4   Because her employer provided alleged non-discriminatory
 5   reasons for her termination, the initial presumption in
 6   Inguanzo’s favor established by McDonnell Douglas Corp. v.
 7   Green, 411 U.S. 792 (1973) “completely drops out of the
 8   picture.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d
 9   Cir. 2000) (internal quotation marks omitted). Inguanzo was
10   therefore required to adduce sufficient evidence to sustain
11   a reasonable finding that her termination was attributable
12   to discrimination. This she has failed to do.
13
14        Inguanzo’s discrimination termination claim depended
15   upon three comments, only two of which had record support.
16   Inguanzo cites a statement by her former supervisor,
17   Reardon, to the effect that promotion decisions were
18   influenced by racial considerations; but Inguanzo adduced no
19   evidence that Reardon had personal knowledge of promotion
20   decisions. Accordingly, the remark she attributed to
21   Reardon was the kind of “stray remark” that is insufficient
22   to show discriminatory intent.   See Danzer v. Norden Sys’s,
23   Inc., 151 F.3d 50, 56 (2d Cir. 1998) (“[S]tray remarks . . .
24   without more, cannot get a discrimination suit to a jury.”).
25   The remark attributed to Kimmerle does not on its face
26   indicate a racially discriminatory attitude. As for the
27   statement attributed to Horton, the discriminatory phrase
28   “women’s work” appears to have been Inguanzo’s
29   characterization, rather than something spoken by Horton.
30
31        Inguanzo’s sex discrimination claim is further
32   undermined by the fact that she was hired and fired by the
33   same person. See Carlton v. Mystic Transp., Inc., 202 F.3d
34   129, 137 (2d Cir. 2000) (“When the same actor hires a person
35   already within the protected class, and then later fires
36   that same person, it is difficult to impute to her an
37   invidious motivation that would be inconsistent with the
38   decision to hire.”) (internal quotation marks omitted).
39   Inguanzo’s replacement by another Hispanic woman further
40   undermines her race and gender discrimination claims.
41
42        Inguanzo’s employer has adduced legitimate, non-
43   discriminatory reasons for the adverse employment decision,
44   including Inguanzo’s continued lateness in submitting work
45   product; Inguanzo failed to adduce sufficient evidence that
46   the employer’s justification was a pretext for
47   discrimination.

                                  3
 1        4. Inguanzo challenges the entry of summary judgment
 2   on her retaliation claim. A viable retaliation claim
 3   “requires proof that the unlawful retaliation would not have
 4   occurred in the absence of the alleged wrongful action or
 5   actions of the employer.” Univ. of Texas S.W. Med. Ctr. v.
 6   Nassar, 133 S.Ct. 2517, 2533 (2013). Although “temporal
 7   proximity can demonstrate a causal nexus,” causality is
 8   lacking when “adverse employment actions were both part, and
 9   the ultimate product, of an extensive period of progressive
10   discipline [beginning prior to the complaint] . . . .”
11   Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95
12   (2d Cir. 2001) (internal quotation marks omitted). As in
13   Slattery, the record in this case reflects that before
14   Inguanzo complained of discrimination, she had received a
15   stream of disciplinary warnings regarding her lateness in
16   filing records. J.A. 197-223; see also J.A. 142 (“The
17   discussion of the situation that happened, the late care
18   plans, her not turning them in on time, repeat issues,
19   insubordination, assigning her supervisor her work. A lot
20   of different things transpired, including her supervisor
21   asking her to put the correct dates on the service plan and
22   she refused to do so.”). The district court correctly
23   granted summary judgment on Inguanzo’s retaliation claim.
24
25        For the foregoing reasons, and finding no merit in
26   Inguanzo’s other arguments, we hereby AFFIRM the judgment of
27   the district court.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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