16-971-cv
Alvarado v. Nordstrom, 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.



        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 March, two thousand seventeen.

Present:          ROBERT A. KATZMANN,
                             Chief Judge,
                  ROSEMARY S. POOLER,
                  GERARD E. LYNCH,
                             Circuit Judges.

_____________________________________________________

EDUARDO ALVARADO,

                                      Plaintiff-Appellant,

                           v.                                                    16-971-cv

NORDSTROM, INCORPORATED, JEFFREY, INC.,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:              Anne C. Vladeck (Rebecca J. Osborne, on the brief), Vladeck,
                                      Raskin & Clark, P.C., New York, NY.

Appearing for Appellees:              James W. Weller, Nixon Peabody LLP, Jericho, NY.

      Appeal from the United States District Court for the Southern District of New York
(Buchwald, J.).
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    The Clerk of Court is respectfully directed to amend the caption as above.
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part, VACATED in part, and REMANDED.

       Plaintiff-Appellant Eduardo Alvarado appeals from the March 7, 2016 judgment of the
United States District Court for the Southern District of New York (Buchwald, J.) granting
summary judgment in favor of Defendants-Appellees Nordstrom, Incorporated (“Nordstrom”)
and Jeffrey, Inc. (“Jeffrey”) (collectively “Defendants”) on Alvarado’s racial discrimination
claim under Section 1981 of the Civil Rights Act of 1866 (“Section 1981”) and Alvarado’s racial
and sexual orientation discrimination claims under the New York State Human Rights Law
(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). Alvarado v. Jeffrey, Inc.,
149 F. Supp. 3d 486, 489 (S.D.N.Y. 2016). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        “We review a district court’s grant of summary judgment de novo.” Marvel Characters,
Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013) (internal quotation marks omitted).

        As both parties to this lawsuit agree, Section 1981 and NYSHRL hostile work
environment claims are governed by the same substantive standard. See Tolbert v. Smith, 790
F.3d 427, 439 (2d Cir. 2015) (“Hostile work environment claims under Title VII and the
NYSHRL are governed by the same standard.”); Turley v. ISG Lackawanna, Inc., 774 F.3d 140,
151 n.6 (2d Cir. 2014) (stating the substantive standards under Title VII and Section 1981 are
similar, while noting that only Section 1981 “permits a plaintiff . . . to sue persons other than
employers”). “To establish a prima facie case of hostile work environment, the plaintiff must
show that the discriminatory harassment was sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment, and that a
specific basis exists for imputing the objectionable conduct to the employer.” Tolbert, 790 F.3d
at 439 (internal quotation marks omitted). “As a general rule, incidents must be more than
episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.
Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Id.
(internal quotation marks omitted). Nonetheless, “prior derogatory comments by a co-worker
may permit an inference that further abusive treatment by the same person was motivated by the
same []bias manifested in the earlier comments.” Raniola v. Bratton, 243 F.3d 610, 622 (2d Cir.
2001). Even a single incident of verbal harassment may be sufficient to indicate that further
harassment by that co-worker was based on the protected characteristic and thus contributed to a
hostile work environment. Id. (citing Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir.
2000)).

       As the district court correctly observed, Alvarado’s hostile work environment claims are
based on three comments made by three co-workers over the course of approximately one year.
Alvarado, 149 F. Supp. 3d at 494.

       Alvarado first argues that a racially-charged comment by Keisha Daniel, a straight,
African-American colleague, along with her continued verbal and allegedly physical harassment
of him makes his situation akin to the one in Howley. In Howley, this Court held that one


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incident of verbal harassment was sufficient, considering the totality of the circumstances, to
have “intolerably altered [the plaintiff’s] work environment” since the comment at issue was
obscene, was made “at length, loudly, and in a large group” of the victim’s co-workers and
subordinates, and explicitly stated the victim had advanced in her career “only by performing
fellatio” on her male colleagues. Howley, 217 F.3d at 154. Here, Daniel’s comment does not rise
to that standard. The comment, while inappropriate and racially-charged, was not alleged to have
been made loudly in front of all of Alvarado’s co-workers, is not obscene, and does not impugn
Alvarado’s ability to do his job. Further, Alvarado did not originally mention the comment to
John Seery, the store manager, when Alvarado complained about Daniel’s behavior that day, and
Alvarado later stated to Seery that he had not been offended by the comment (which likely
explains why he did not originally report it). In addition, there is substantial evidence in the
record that Daniel’s harassing behavior was not only directed at Alvarado but also at other co-
workers, including African-American co-workers, which suggests that Daniel’s behavior was not
racially-motivated but was simply the result of her being a combative individual.

        Alvarado next argues that the three comments together, along with all the other
circumstances supported by the evidence, rise to the level of “severe and pervasive” behavior
sufficient to state a claim for a hostile work environment. We do not agree. Daniel’s harassing
behavior cannot be imputed to Lamar Lawrence and Kenya Dalrymple, two straight, African-
American colleagues, neither of whom are alleged to have engaged in further altercations with
Alvarado beyond the single instance raised. See Raniola, 243 F.3d at 622 (“[P]rior derogatory
comments by a co-worker may permit an inference that further abusive treatment by the same
person was motivated by the same []bias manifested in the earlier comments.” (emphasis
added)). Alvarado seeks to have this Court hold that the environment at Jeffrey was hostile based
on one race-based comment by Daniel, Daniel’s inappropriate behavior which she directed at
numerous other colleagues including colleagues who were African-American and straight, one
allegedly sexual-orientation-based comment by Lawrence, and one allegedly sexual-orientation-
based comment by Dalrymple toward another colleague over the course of approximately one
year. This we cannot do. Alvarado has not provided us with a sufficient basis to infer that the
treatment he suffered was severe and pervasive on the basis of his race and sexual orientation.
Accordingly, we affirm the district court’s decision with respect to Alvarado’s Section 1981 and
NYSHRL racial discrimination claims.

        Section 1981 and NYSHRL retaliation claims are analyzed under the same three-step
burden shifting framework derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973) as are Title VII claims. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(explaining that retaliation claims under Title VII, Section 1981, and NYSHRL are all “analyzed
pursuant to Title VII principles”). Under this framework, “‘but-for’ causation does not require
proof that retaliation was the only cause of the employer’s action, but only that the adverse
action would not have occurred in the absence of the retaliatory motive.” Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).

        We agree with the district court that the only potentially actionable adverse employment
action Alvarado suffered in retaliation for his filing of an Internal Review form was his 2012
written warning for the incidents between him and Daniel and between him and Josh Gonzales, a
Hispanic store manager at Jeffrey. Alvarado, 149 F. Supp. 3d at 498; see generally Millea v.


                                                3
Metro-North R.R. Co., 658 F.3d 154, 164-65 (2d Cir. 2011) (suggesting that a written reprimand
can constitute a materially adverse employment action under certain circumstances). Alvarado’s
strongest argument for finding that the 2012 written reprimand was pretext for retaliation is that
the written reprimand was the product of disparate treatment between himself and Daniel, his
alleged comparator who did not receive a written reprimand. This claim boils down to a question
of whether Alvarado and Daniel are sufficiently similar in their history of altercations and
insubordinate behavior that Alvarado’s treatment can be attributed to his filing of an Internal
Review form (in which he and Daniel differ) rather than attributed to his behavior (in which he
and Daniel, Alvarado contends, do not differ).

         The record lacks sufficient support for Alvarado’s argument under the but-for causation
standard of Section 1981 and NYSHRL. Alvarado points to numerous instances of small acts of
insubordination by Daniel, but he does not point to any evidence that would suggest any of these
instances involved shouting or aggression towards a manager on the salesfloor comparable to
Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with
Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her
breath about Smyth while on the salesfloor and then denying that she had said anything. While
there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past,
Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate”
towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put
his thumb in Gonzales’s face. App’x at 552. We conclude that Alvarado cannot rely on
allegations of disparate treatment to support his retaliation claim because he has failed to show
that he and Daniel are sufficient comparators when it comes to their actions of insubordination
under the causation standard applicable to Section 1981 and NYSHRL claims. Accordingly, we
affirm the decision of the district court with respect to Alvarado’s Section 1981 and NYSHRL
retaliation claims.

        When an individual has failed to establish any claim under Section 1981 and NYSHRL,
his claim of constructive discharge based on those claims must also fail. Fincher v. Depository
Tr. & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010). Accordingly, we affirm the decision of
the district court with respect to Alvarado’s constructive discharge claim.

         In order to succeed on a NYCHRL hostile work environment claim, a plaintiff must show
that he was treated “less well than other employees” on the basis of a protected characteristic.
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013). Under the
NYCHRL, an “employer may prevail on summary judgment if it shows that a reasonable jury
could conclude only that the conduct amounted to no more than a petty slight. Thus, courts may
still dismiss truly insubstantial cases[] where the defense is clear as a matter of law.” Id. at 111
(internal quotation marks and citation omitted).

       While there is no doubt that the standard for proving a NYCHRL hostile work
environment claim is lower than the standard for proving Section 1981 and NYSHRL hostile
work environment claims, the district court did not err in finding that Defendants had met the
burden of proving their affirmative defense of triviality as a matter of law. Daniel’s one race-
based comment against Alvarado is still not enough to render all of her aggressive behavior (to
which some of her straight, African-American colleagues were also subjected) race-based, and


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Lawrence’s and Dalrymple’s comments remain merely petty even if they are hurtful.
Accordingly, we affirm the decision of the district court with respect to Alvarado’s NYCHRL
hostile work environment claim.

        In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took
an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in
conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik, 715
F.3d at 112 (internal citation omitted). “[N]o challenged conduct may be deemed nonretaliatory
unless a jury could not reasonably conclude from the evidence that such conduct was reasonably
likely to deter a person from engaging in protected activity.” Id. (internal quotation marks and
ellipses omitted). “This assessment should be made with a keen sense of workplace realities, of
the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a
jury is generally best suited to evaluate the impact of retaliatory conduct.” Id. (internal quotation
marks and brackets omitted). Under this standard, “summary judgment is [only] appropriate if
the record establishes as a matter of law that . . . retaliation played no role in the defendant’s
actions.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (internal quotation
marks and original brackets omitted; emphasis added).

         Given that all the NYCHRL requires to survive summary judgment is a showing that
retaliation plays some role in the adverse employment action, we hold that the question of
whether Daniel was a sufficiently close comparator to Alvarado such that their disparate
treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately
one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the
evidence presented at summary judgment, written reprimands seem to have been infrequently
given even for bad behavior in public. For instance, there is no evidence in the record that any
employees received a written reprimand following the altercation between Alvarado, Daniel, and
José Bravo, a Hispanic colleague, that Smyth had to break up and which led to Daniel’s
insubordination towards Smyth on the salesfloor. Even though written reprimands were rarely
given, and Daniel had engaged in numerous instances of minor insubordinations and other
combative behavior vis-à-vis her co-workers for which she had received few written reprimands,
Alvarado immediately received a written reprimand for his single act of insubordination towards
Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the
NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in
an adverse employment action as a matter of law, we hold that there exists a question of fact for
a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand.
Accordingly, we vacate the decision of the district court with respect to Alvarado’s NYCHRL
retaliation claim, and we remand for further proceedings consistent with the order.

        Lastly, “[w]e review a district court’s imposition of [or choice not to impose] spoliation
sanctions under an abuse of discretion standard.” Allstate Ins. Co. v. Hamilton Beach/Proctor
Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007). “In so doing, we accept the district court’s factual
findings . . . unless they are clearly erroneous.” Id. The district court determined that there was
no evidence that a video of the January 18, 2012 incident ever existed and thus no evidence that
the video had been destroyed. Alvarado, 149 F. Supp. 3d at 493. We hold that this factual finding
was not clearly erroneous. Accordingly, we hold that the district court did not abuse its discretion
in determining that Alvarado was not entitled to an adverse inference against Defendants.


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        We have considered the remainder of Alvarado’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED in part, VACATED in
part, and REMANDED.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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