13-388-cv
Rodas v. Town of Farmington


                               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
ASUMMARY 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 20th day of May, two thousand fourteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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STEPHEN RODAS,
                                 Plaintiff-Appellant,

                              v.                                            No. 13-388-cv

TOWN OF FARMINGTON,
                                 Defendant-Appellee.
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FOR APPELLANT:                                 Christina A. Agola, Esq., Rochester, New York;
                                                Stephen Rodas, pro se, Farmington, New York.1

FOR APPELLEE:                                  Scott D. Piper, Harris Beach PLLC, Pittsford,
                                               New York.




1
  By letter dated March 23, 2014, Plaintiff Stephen Rodas informed the court that he would
be proceeding pro se. His brief, filed March 22, 2013, was prepared by counsel.
       Appeal from a judgment of the United States District Court for the Western District

of New York (Michael A. Telesca, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 17, 2013, is AFFIRMED.

       Plaintiff Stephen Rodas appeals from an award of summary judgment in favor of his

employer, defendant Town of Farmington, on Rodas’s claim that the Town retaliated

against him for complaining of sex discrimination. See 42 U.S.C. § 2000e et seq. (“Title

VII”); New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296.2

       We review an award of summary judgment de novo, viewing the evidence in the

light most favorable to the non-moving party and drawing all reasonable inferences in that

party’s favor. See Townsend v. Benjamin Enters., 679 F.3d 41, 47 (2d Cir. 2012).

Because the same analysis applies to retaliation claims under the NYSHRL as under Title

VII, see Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010), we discuss these claims

together. We assume the parties’ familiarity with the facts and record of the underlying

proceedings, which we reference only as necessary to explain our decision to affirm.

       To establish a prima facie claim of retaliation under Title VII and the NYSHRL, a

plaintiff must show (1) participation in a protected activity, (2) defendant’s knowledge of

2
  Although Rodas’s complaint also invoked 42 U.S.C. § 1983, on appeal, he describes the
action as one brought under Title VII and the NYSHRL. We therefore deem any § 1983
claims abandoned on appeal, see Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011), to the
extent that they were not already forfeited for failure to raise them before the district court,
see Oneida Indian Nation v. Madison Cnty., 665 F.3d 408, 441 (2d Cir. 2011).
                                              2
such participation, (3) an adverse employment action, and (4) a causal connection between

the adverse action and the protected activity. See id. Rodas submits that the district court

erred in concluding that he failed to make the first and third required showing.

1.     Protected Activity

       It is undisputed that Rodas engaged in protected activity on April 23, 2010, when he

filed a complaint with the Equal Employment Opportunity Commission. Rodas asserts

that he also engaged in protected activity (1) in September 2009, when he complained to a

supervisor about a cartoon in the common area of his workplace depicting two men, one

labeled as Rodas, with a sexually suggestive caption; (2) in January 2010, when he

complained to the same supervisor about seeing words written on a fuel tank suggesting

that Rodas was a homosexual; and (3) in February 2010, when he memorialized these

concerns in a written complaint to his employer. Although these complaints addressed

what would appear to be sexual orientation discrimination, Rodas does not challenge the

award of summary judgment on a theory of sexual orientation discrimination, see Dawson

v. Bumble & Bumble, 398 F.3d 211, 218, 224 (2d Cir. 2005) (noting that sexual orientation

discrimination is not actionable under Title VII but is actionable under NYSHRL), and any

such argument is deemed waived.         See Lederman v. N.Y.C. Dep’t of Parks and

Recreation, 731 F.3d 199, 203 n.1 (2d Cir. 2013) (“Issues not sufficiently argued will be

deemed waived and ineligible for appellate review.”).



                                             3
       Protected activity for purposes of Title VII and NYSHRL retaliation claims

encompasses an employee’s complaint to supervisors about alleged unlawful activity, even

if the activity turned out not to be unlawful, provided that the employee “had a good faith,

reasonable belief that he was opposing an employment practice made unlawful by Title

VII.” McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir. 2001). “The

objective reasonableness of a complaint is to be evaluated from the perspective of a

reasonable similarly situated person.” Kelly v. Howard I. Shapiro & Assocs. Consulting

Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013).

       We conclude that Rodas’s complaints, even when viewed most favorably to him,

could not support an objectively reasonable belief that he was opposing proscribed sex

discrimination.   As the Supreme Court observed in Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75, 80 (1998), “workplace harassment” is not “automatically

discrimination because of sex merely because the words [or images] used have sexual

content or connotations.”    Here, Rodas adduced no evidence to support a claim of

disparate workplace treatment because he was male. Thus, like the district court, we

conclude that the record provides no basis for an objectively reasonable belief that Rodas’s

complaint pertained to sex discrimination proscribed by federal and state law.

2.     Adverse Employment Action

       Even if Rodas could demonstrate the requisite objectively reasonable belief, he

cannot pursue a retaliation claim without showing materially adverse action by his
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employer. Rodas attempted to carry this burden by pointing to evidence that (1) in

January 2010, a co-worker told Rodas “this conversation is for heterosexuals only,” J.A.

321; (2) on March 29, 2010, a co-worker took Farmington-owned tools that Rodas had

been using from a Farmington-owned truck that Rodas had been driving; (3) on April 15,

2010, Rodas was reassigned to fire hydrant maintenance, which he found degrading; (4) on

April 22, 2010, Rodas was denied a copy of his Worker’s Compensation papers by a town

supervisor before procuring them from the county office; (5) late on the night of June 1,

2010, Rodas’s gun was confiscated by the Ontario County police, a process that involved

loud banging on the door of his home and that was preceded by a May 19, 2010 letter from

the county notifying Rodas of intended seizure; (6) on May 21, 2010, Rodas’s supervisor

told him not to talk to other employees; (7) on August 2, 2010, Rodas was again assigned to

fire hydrant maintenance; (8) on September 16, 2010, Rodas was not invited to an

employee “fun day” involving the use of heavy equipment; (9) on January 31, 2011, Rodas

was suspended with pay; (10) on February 28, 2011, Rodas received a letter from his

supervisor threatening termination; (11) on March 4, 2011, upon returning to work, Rodas

felt harassed by the presence of a machete in the window sill of the break room; (12) on

several occasions (March 10, November 18, and November 23, 2011), Rodas was not

called in or reassigned to take on emergency water breaks as they occurred; and (13) after

2003, Rodas received no overtime work.3

3
    Rodas mentions in his brief on appeal that his February 9, 2010 written complaint to the
                                               5
       Actions are materially adverse when they “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Burlington N. & Sante Fe

Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Such actions

must be more than “trivial harms” and must go beyond the “petty slights or minor

annoyances that often take place at work and that all employees experience.”             Id.

Rodas’s alleged retaliatory actions cannot be deemed materially adverse. First, Rodas

admitted that he experienced no diminution in pay, position, or benefits after making the

complaints at issue. Indeed, he does not dispute receiving increased pay after his initial

complaint. Second, Rodas conceded that the purportedly degrading work assignments

were within his job description; that his January 2011 suspension with pay was the result of

an investigation into his threatening another employee; that the taking of tools by a fellow

employee did not impede his job performance; and that on each occasion that he was not

called upon during emergencies, he was engaged in pre-determined assignments, and a

different qualified person performed the task required by the emergency. Third, the

identified threat of termination was, in fact, a letter stating a no tolerance policy on

violence or threatening behavior in the workplace, sent after Rodas was the subject of a

town also memorialized retaliatory measures allegedly taken against him, namely: that he
received lower pay raises than others; that he was denied a review; that he was not issued a
mobile phone; that he was never given the chance to obtain a water license; that he was
subject to unnamed disciplinary action while others were not; and that he was subject to
slander. Rodas offered no evidence to substantiate these allegations beyond the fact that
he had listed them in his February 2010 complaint, which is plainly insufficient to defeat
summary judgment. See Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).
                                              6
complaint from a co-worker of threatening behavior. Finally, the remainder of the actions

identified by Rodas fall well within the bounds of “minor annoyances” that we have

previously deemed insufficient as a matter of law to be materially adverse. See Rivera v.

Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26 (2d Cir. 2014) (concluding that

disciplinary citations, assignment to drive dirtier buses, one late overtime payment, and

refusal to be provided with half-day off for doctor’s appointment did not rise to level of

materially adverse actions for retaliation claim); Tepperwien v. Entergy Nuclear

Operations, Inc., 663 F.3d 556, 568–72 (2d Cir. 2011) (holding that investigatory sessions,

counseling, threats of termination, hostile behavior during meeting, being made to come to

work on day off under false pretenses, and being switched to night shift were not materially

adverse actions for retaliation claim). No different conclusion is warranted when the

identified actions are viewed in the aggregate because they did not affect Rodas in any

materially adverse way. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d at

572.

       Considering the totality of these circumstances, as well as their context, see id., we

independently reach the same conclusion as the district court: Rodas failed as a matter of

law to raise a triable issue of fact supporting the materially adverse employment action

necessary to pursue his retaliation claim. Thus, summary judgment was properly awarded

to defendant.



                                             7
3.     Conclusion

       We have considered all of Rodas’s remaining arguments and conclude that they are

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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