         12-4142-cv
         Ross v. New Canaan Environmental Commission

                                      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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       18th day of September, two thousand thirteen.
 4
 5       PRESENT:
 6
 7               GUIDO CALABRESI,
 8               DEBRA ANN LIVINGSTON,
 9               DENNY CHIN,
10
11                               Circuit Judges.
12       _______________________________________________
13
14       CRISTINA ROSS,
15
16                                         Plaintiff-Appellant,

17                        -v.-                                                        No. 12-4142-cv
18
19       NEW CANAAN ENVIRONMENTAL COMMISSION,*

20                               Defendant-Appellee.
21       _______________________________________________

22                                                  JOHN R. WILLIAMS, New Haven, CT, for Plaintiff-Appellant.

23                                                  SCOTT R. OUELLETTE, Williams, Walsh & O’Connor, LLC,
24                                                  North Haven, CT, for Defendant-Appellee.



                 *
                  The Clerk of Court is directed to amend the case caption as set out above.

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1           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

2    that the judgment of the District Court is AFFIRMED.

3           Plaintiff-Appellant Cristina Ross (“Ross”) appeals the judgment and Ruling and Order of the

4    United States District Court for the District of Connecticut (Kravitz, J.), entered September 10,

5    2012, granting the summary judgment motion of Defendant-Appellee New Canaan Environmental

6    Commission (“NCEC”) and dismissing Ross’s remaining gender discrimination claim. We assume

7    the parties’ familiarity with the underlying facts and procedural history of the case.

 8          “We review a district court’s grant of summary judgment de novo, construing the evidence

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

10   favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). Summary judgment is

11   appropriate if “the movant shows that there is no genuine dispute as to any material fact and the

12   movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When the moving party

13   has pointed to the absence of evidence to support an essential element on which the party opposing

14   summary judgment has the burden of proof, the opposing party, in order to avoid summary

15   judgment, must show the presence of a genuine issue by coming forward with evidence that would

16   be sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that

17   element at trial.” United States v. Rem, 38 F.3d 634, 643 (2d Cir. 1994) (citing inter alia Celotex

18   Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)); see Fed. R. Civ. P. 56(c)(1).

19          Ross alleges that the NCEC discriminated against her on the basis of her gender when it

20   reviewed her application to conduct regulated activities on her property in New Canaan,

21   Connecticut. Specifically, Ross claims that the NCEC subjected her application to greater scrutiny

22   than those of similarly situated male applicants and that hers was the only application ever denied,

23   in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983.

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 1          “To state a claim for an equal protection violation, appellants must allege that a government

 2   actor intentionally discriminated against them on the basis of race, national origin or gender.”

 3   Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). “State action is impermissible if it

 4   perpetuates old gender stereotypes by the disparate treatment of similarly situated men and women

 5   based on sex.” Zalewska v. Cnty. of Sullivan, N.Y., 316 F.3d 314, 323 (2d Cir. 2003) (citation

 6   omitted).

 7          The district court did not err in granting summary judgment for NCEC because the record

 8   contains insufficient evidence to create a genuine issue of fact regarding whether NCEC had a

 9   discriminatory motive in denying Ross’s application or whether NCEC treated Ross differently from

10   similarly situated male applicants. As the district court correctly observed, the NCEC meeting

11   minutes do not support Ross’s contention that NCEC subjected her application to a higher level of

12   scrutiny, nor do the minutes demonstrate whether the other applicants were, as Ross asserts,

13   similarly situated.   In fact, the record shows that NCEC commissioners considered Ross’s

14   application singularly complex and difficult. See Joint App’x at 155 (“[T]his is one of the most

15   difficult applications that has come before the commission in many years.”); id. at 167 (‘[T]his has

16   been the most difficult application I’ve had to face certainly because there certainly are competing

17   issues here.”); id. at 168 (“There’s no question that this is a difficult application.”). Furthermore,

18   a single, stray remark by the NCEC chairman calling Ross a “trifecta” – which plaintiff alleges

19   means a Hispanic, Jewish woman – is not enough to create an inference of discriminatory motive,

20   especially when there is no indication in the record when the comment was made or that it was made

21   in connection with her application, and there is no other evidence in the record, circumstantial or

22   otherwise, of discriminatory intent. Cf. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d


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1   Cir. 2001) (in age discrimination context, recognizing that “the stray remarks of a decision-maker,

2   without more” cannot prove a claim of discrimination).

3          In sum, no reasonable jury could have concluded based on the record here that NCEC’s

4   actions with regard to Ross’s application were based on her gender, and the district court properly

5   granted NCEC’s motion for summary judgment. For the foregoing reasons, the judgment of district

6   court is AFFIRMED.

7                                                        FOR THE COURT:
8                                                        Catherine O’Hagan Wolfe, Clerk




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