         09-2910-cv
         Liburd v. Bronx Lebanon Hospital Center, 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 16 th day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                AMALYA L. KEARSE,
 9                GUIDO CALABRESI,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       PEARLINE O. LIBURD,
14                Plaintiff-Appellant,
15
16       UNITED STATES OF AMERICA,
17                Plaintiff,
18
19                    -v.-                                         09-2910-cv
20
21       BRONX LEBANON HOSPITAL CENTER, ANDREAS
22       EVDOKAS, individually and as
23       Administrative Director, RAYMOND
24       ESTEVES, individually and as Assistant
25       Vice President of Clinical Services,
26                Defendants-Appellees.
27       - - - - - - - - - - - - - - - - - - - -X
28
29       APPEARING FOR APPELLANT:               Gregory G. Smith (Janet J.
30                                              Lennon, on the brief), Gregory
 1                              G. Smith & Associates, New York,
 2                              NY.
 3
 4   APPEARING FOR APPELLEES:   Nancy V. Wright (Ricki E. Roer,
 5                              on the brief), Wilson, Elser,
 6                              Moskowitz, Edelman & Dicker LLP,
 7                              New York, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Baer, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Plaintiff-appellant Pearline O. Liburd appeals from an
17   order of the United States District Court for the Southern
18   District of New York (Baer, J.), which denied her motion for
19   reconsideration. Because the motion for reconsideration was
20   filed within ten days of the underlying grant of summary
21   judgment in favor of defendants-appellants and renewed the
22   arguments Liburd raised in opposition to summary judgment,
23   we also review the order granting summary judgment. See “R”
24   Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.
25   2008) (adopting “a straightforward approach . . . whereby a
26   notice of appeal from denial of a motion to reconsider,
27   filed within ten days of the order or judgment sought to be
28   considered, suffices to bring up for review the underlying
29   order or judgment, at least where the motion renews
30   arguments previously made”). We assume the parties’
31   familiarity with the underlying facts, the procedural
32   history, and the issues presented for review.
33
34        “We review an award of summary judgment de novo, and
35   will uphold the judgment if the evidence, viewed in the
36   light most favorable to the party against whom it is
37   entered, demonstrates that there are no genuine issues of
38   material fact and that the judgment is warranted as a matter
39   of law.” Global Network Commc’ns, Inc. v. City of New York,
40   562 F.3d 145, 150 (2d Cir. 2009); see also Fed. R. Civ. P.
41   56(c)(2). “We review a district court’s denial of a motion
42   for reconsideration for abuse of discretion.” RJE Corp. v.
43   Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003)
44   (per curiam). Following review based on the appropriate

                                  2
 1   standards in this case, we affirm the district court’s grant
 2   of summary judgment and denial of reconsideration.
 3
 4        The district court properly rejected Liburd’s request
 5   for an adverse inference based on defendants’ purported
 6   spoliation of telephone records and patient files. Even
 7   assuming that Liburd could establish that defendants had an
 8   obligation to preserve certain telephone records, she has
 9   failed to present a genuine issue of material fact as to
10   whether any other managers were implicated in the telephone
11   audits and were unable to explain excessive charges in their
12   telephone usage reports. See Byrnie v. Town of Cromwell,
13   Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001) (requiring “a
14   court [to] determine whether there is any likelihood that
15   the destroyed evidence would have been of the nature alleged
16   by the party affected by its destruction” (internal
17   quotation marks omitted)). Even considering Liburd’s
18   explanation for the local addresses listed on the files for
19   patients she contends she called long-distance, she fails to
20   raise a genuine issue of material fact that the patient
21   files support a legitimate business purpose for her
22   international calling because none of the patients she
23   identified were treated in the Harm Reduction Program and
24   she nowhere alleged that her job responsibilities included
25   general recruiting for the Bronx Lebanon Hospital Center
26   (the “Hospital”).
27
28        We affirm the grant of summary judgment and the denial
29   of reconsideration regarding Liburd’s discrimination claims
30   brought under Title VII of the Civil Rights Act of 1964, as
31   amended, 42 U.S.C. § 2000e et seq. (“Title VII”), against
32   the Hospital, and 42 U.S.C. § 1981 (“Section 1981”), against
33   the Hospital and Raymond Esteves. Even assuming that Liburd
34   could establish a prima facie case of discrimination based
35   on race or color, defendants proffered her abuse of
36   telephone privileges as a legitimate, non-discriminatory
37   reason for Liburd’s termination and Liburd failed to raise a
38   genuine issue of material fact as to whether that reason was
39   a pretext for discrimination. Moreover, Liburd failed to
40   offer evidence that other individuals placed the
41   international calls reported on her telephone usage logs or
42   that Esteves or Andreas Evdokas were involved in the
43   telephone audit. See Cifarelli v. Village of Babylon, 93
44   F.3d 47, 51 (2d Cir. 1996) (“[M]ere conclusory allegations,


                                  3
 1   speculation or conjecture will not avail a party resisting
 2   summary judgment.”).
 3
 4        We affirm the grant of summary judgment and the denial
 5   of reconsideration regarding Liburd’s retaliation claim
 6   brought under the False Claims Act, 31 U.S.C. § 3730(h) (the
 7   “FCA”). Even assuming that Liburd’s October 18, 2005
 8   memorandum to Dr. Levine (and her February and April 2006
 9   attempts to determine the location of eight computers)
10   constituted protected conduct under the FCA, defendants
11   proffered a legitimate, non-retaliatory reason for Liburd’s
12   termination and Liburd failed to raise a genuine issue of
13   material fact as to whether that reason was a pretext for
14   retaliation.
15
16        We affirm the grant of summary judgment and the denial
17   of reconsideration regarding Liburd’s hostile work
18   environment claims brought under Title VII against the
19   Hospital and Section 1981 against the Hospital and Esteves.
20   Considered in their totality and viewed in the light most
21   favorable to Liburd, the comments alleged, Esteves’s alleged
22   conduct at the September 2005 meeting, and the other alleged
23   conduct, are not sufficient to raise a genuine issue to be
24   tried as to severity or pervasiveness notwithstanding the
25   crude and contemptible character of what is alleged.
26   See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
27   2000) (“[A] plaintiff must produce evidence that the
28   workplace [wa]s permeated with discriminatory intimidation,
29   ridicule, and insult, that [wa]s sufficiently severe or
30   pervasive to alter the conditions of the victim’s
31   employment.” (internal quotation marks omitted)). The
32   alleged conduct falls short of the requisite levels of
33   severity or pervasiveness. See, e.g., Alfano v. Costello,
34   294 F.3d 365 (2d Cir. 2002) (overturning a jury verdict in
35   favor of the plaintiff because the evidence at trial--
36   demonstrating conduct more egregious than that involved in
37   the instant case--was insufficient as a matter of law to
38   establish a hostile work environment).
39
40
41
42
43
44

                                  4
1        We have considered all of Liburd’s contentions on this
2   appeal and have found them to be without merit.
3   Accordingly, the judgment of the district court is hereby
4   AFFIRMED.
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




                                 5
