     15-1150
     Preston v. Bristol Hospital

                          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 31st day of March, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DUSTI PRESTON,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-1150
16
17       BRISTOL HOSPITAL,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Megan L. Piltz, James V.
22                                             Sabatini, Sabatini & Associates,
23                                             LLC, Newington, Connecticut.
24
25       FOR APPELLEE:                         Susanne Kantor, Greg A. Riolo,
26                                             Jackson Lewis P.C., White
27                                             Plains, New York.
28

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the District of Connecticut (Chatigny, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiff Dusti Preston appeals from the judgment of
 9   the United States District Court for the District of
10   Connecticut (Chatigny, J.), granting summary judgment in
11   favor of defendant-appellee Bristol Hospital (the
12   “Hospital”) and dismissing Preston’s claims arising under
13   Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
14   et seq. (“Title VII”); the Americans with Disabilities Act,
15   42 U.S.C. § 12101 et seq. (“ADA”); and the Connecticut Fair
16   Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq.
17   (“CFEPA”). Preston was formerly employed by the Hospital as
18   a CAT Scan Technician. She contends that the Hospital
19   subjected her to sex-plus, marital status, and disability
20   discrimination, and retaliation. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24        We review de novo a district court’s grant of summary
25   judgment, “viewing the record in the light most favorable to
26   the non-moving party.” Dillon v. Morano, 497 F.3d 247, 251
27   (2d Cir. 2007). Summary judgment is appropriate where
28   “there is no genuine dispute as to any material fact and the
29   movant is entitled to judgment as a matter of law.” Fed. R.
30   Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists
31   where the evidence is such that a reasonable jury could
32   decide in the non-movant’s favor.” Delaney v. Bank of Am.
33   Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam)
34   (ellipsis omitted) (quoting Beyer v. Cty. of Nassau, 524
35   F.3d 160, 163 (2d Cir. 2008)). “[C]onclusory statements or
36   mere allegations [are] not sufficient to defeat a summary
37   judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d
38   Cir. 2002).
39
40        Preston’s claims are analyzed pursuant to the McDonnell
41   Douglas burden-shifting framework. See McDonnell Douglas
42   Corp v. Green, 411 U.S. 792, 802-05 (1973) (Title VII
43   discrimination); Kaytor v. Elec. Boat Corp., 609 F.3d 537,
44   556 (2d Cir. 2010) (CFEPA discrimination and retaliation);

                                  2
 1   Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.
 2   2006) (ADA discrimination); Terry v. Ashcroft, 336 F.3d 128,
 3   141 (2d Cir. 2003) (Title VII retaliation). “A plaintiff
 4   must establish a prima facie case; the employer must offer
 5   through the introduction of admissible evidence a legitimate
 6   non-discriminatory reason for the [adverse employment
 7   action]; and the plaintiff must then produce evidence and
 8   carry the burden of persuasion that the proffered reason is
 9   a pretext.” Sista, 445 F.3d at 169. Preston contends that
10   she experienced several adverse employment actions, and that
11   each was motivated by various bases of discrimination and/or
12   retaliation.
13
14        1.  MediTech Team/SuperUser Status: Preston contends
15   that the Hospital denied her a position on the 2011 MediTech
16   team because of her sex and marital status–-and more
17   specifically, her status as a single mother, which is the
18   theory behind both of these claims. The district court
19   concluded that a reasonable jury could not find that Preston
20   was subjected to an adverse employment action when denied a
21   position on the 2011 MediTech team (i.e., denied SuperUser
22   status). We agree. “We define an adverse employment action
23   as a ‘materially adverse change’ in the terms and conditions
24   of employment.” Sanders v. N.Y.C. Human Res. Admin., 361
25   F.3d 749, 755 (2d Cir. 2004) (quoting Richardson v. N.Y.S.
26   Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)).
27   SuperUsers trained other members of the department to use
28   the new MediTech software. But being termed a “SuperUser”
29   did not constitute a promotion or new position; the role did
30   not warrant any additional compensation; and once everybody
31   had learned the software, the group “faded out” of
32   existence. J.A. 133. Cf. Terry, 336 F.3d at 139 (failure
33   to promote constitutes an adverse employment action (citing
34   Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)).
35
36        Even if the “little bit more access” or “little bit
37   more training” that SuperUsers had regarding the software
38   was sufficiently material such that denial of SuperUser
39   status amounted to an adverse action, it is undisputed that
40   Preston was asked by Heidi McLam, her direct supervisor, to
41   become a SuperUser; additionally, Preston testified that she
42   considered herself to be a SuperUser and trained other
43   employees on the MediTech software. Accordingly, Preston
44   has not raised a genuine issue of fact as to whether she was

                                  3
 1   denied this status or these privileges.1   J.A. 369; see Br.
 2   of Appellant at 19.
 3
 4        2.  Failure to Accommodate & Hostile Work Environment:
 5   In July 2011, Preston learned that she had a stress fracture
 6   in her foot. She was required to wear a “boot”-style cast
 7   for ten weeks, and was put on “light duty,” which meant that
 8   she could not transport patients in wheelchairs or
 9   stretchers. Preston contends that the Hospital
10   discriminated against her on the basis of disability by
11   failing to provide a reasonable accommodation by providing
12   transporters, and by creating a hostile work environment.
13   These claims too fail for lack of an adverse employment
14   action.2
15
16        The record undisputedly establishes that other staff
17   members were available to transport patients during
18   Preston’s weekday shifts; and when it was Preston’s turn to
19   work on a weekend, she would inform Al Lamptey, her
20   supervisor, who would provide a transporter. Preston

         1
           In Preston’s view, being on the MediTech team was
     “the same thing” as being a SuperUser. However, to the
     extent that Preston separately challenges her failure to be
     placed on the MediTech implementation team in May 2010, when
     the Hospital first decided to purchase and implement the
     software, her claims are time-barred. Preston filed charges
     with the Equal Employment Opportunity Commission (“EEOC”)
     and Connecticut Commission on Human Rights and Opportunities
     (“CCHRO”) on January 6, 2012; so she may not challenge under
     Title VII or CFEPA any alleged adverse actions that occurred
     prior to March 12, 2011. See 42 U.S.C. § 2000e-5(e)(1)
     (charge must be filed with EEOC within 300 days of allegedly
     unlawful employment practice when charge is also filed with
     state or local agency); Conn. Gen. Stat. § 46a-82(f)
     (complaint must be filed with CCHRO within 180 days of
     challenged act of discrimination).
         2
           The district court held that Preston’s foot injury
     did not satisfy the definition of disability under the ADA
     or CFEPA. Because we affirm the district court’s
     alternative holding (that there was neither a failure to
     accommodate nor a hostile work environment), we need not
     decide the question.
                                  4
 1   alleges that “[s]ometimes [she] did not have transportation
 2   help,” Br. of Appellant at 8, but she does not identify any
 3   instance in which this occurred, see Major League Baseball
 4   Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.
 5   2008) (“A party opposing summary judgment does not show the
 6   existence of a genuine issue of fact to be tried merely by
 7   making assertions that are conclusory . . . .”); and she
 8   does not contend that she was ever required to transport a
 9   patient in contravention of her restriction. Accordingly,
10   Preston has raised no genuine issue of fact with respect to
11   the Hospital’s alleged failure to provide a reasonable
12   accommodation.
13
14        Nor has Preston submitted evidence sufficient to show a
15   hostile work environment,3 i.e., that her workplace was “so
16   severely permeated with discriminatory intimidation,
17   ridicule, and insult that the terms and conditions of her
18   employment were thereby altered.” Desardouin v. City of
19   Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (quoting Alfano
20   v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002)).
21   Moreover, she does not challenge the district court’s
22   conclusion on this point, so any argument is waived. See
23   Norton v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir. 1998).
24
25        3.  Termination: Preston contends that her
26   termination in October 2011 was motivated by discrimination
27   on the basis of her sex, marital status, and disability; and
28   retaliation for complaints of prior discrimination.4 The
29   Hospital asserts that Preston was fired because she refused
30   to work or arrange coverage for a mandatory weekend shift
31   based on a rotating assignment schedule. Even assuming that
32   Preston could establish her prima facie case as to any
33   claim, we agree with the district court that she has not
34   submitted evidence from which a reasonable jury could find
35   that the proffered reason for the termination (which is
36   undisputed) was pretext for discrimination or retaliation.

         3
           We assume that a hostile work environment claim is
     cognizable under the ADA. See Giambattista v. Am. Airlines,
     Inc., 584 F. App’x 23, 25 & n.1 (2d Cir. 2014) (summary
     order).
         4
           When deposed, however, Preston did not contend that
     her termination was retaliatory.
                                  5
 1        As the district court explained, Preston’s claims of
 2   pretext “are rendered implausible by the undisputed fact
 3   that another full-time CAT Scan Technician, Michele Gore,
 4   was terminated the same day, by the same people, for failing
 5   to find coverage for the same weekend shift.” Preston v.
 6   Bristol Hosp., No. 3:12-cv-1252(RNC), 2015 WL 1456764, at *8
 7   (D. Conn. Mar. 30, 2015). Preston does not contend that
 8   Gore is a single mother or disabled, or that Gore ever
 9   complained of discriminatory treatment; instead, Preston
10   contends that her refusal to work was justified while Gore’s
11   was not. But “evidence that an employer made a poor
12   business judgment in discharging an employee generally is
13   insufficient to establish a genuine issue of fact as to the
14   credibility of the employer’s reasons. . . . [T]he reasons
15   tendered need not be well-advised, but merely truthful.”
16   Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir.
17   1988) (citation omitted); see also Delaney v. Bank of Am.
18   Corp., 766 F.3d 163, 169 (2d Cir. 2014) (“While we must
19   ensure that employers do not act in a discriminatory
20   fashion, we do ‘not sit as a super-personnel department that
21   reexamines an entity’s business decisions.’” (quoting Scaria
22   v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997))). What matters
23   here is that “both women refused to work a required shift
24   for a legally unprotected personal reason,” and were
25   terminated.5 6 Preston, 2015 WL 1456764, at *8.
26
27        Preston asserts that the credibility of the Hospital’s
28   nondiscriminatory rationale is undermined by (1) “differing
29   explanations” for her termination and (2) an alleged failure

         5
           Of course, “it is discriminatory treatment of a given
     individual that matters.” Brown v. Henderson, 257 F.3d 246,
     253 (2d Cir. 2001). See Br. of Appellant at 43. The
     Hospital’s similar treatment of Gore and Preston therefore
     undermines Preston’s allegation that the proffered reason
     for Preston’s termination was pretextual.
         6
           Notwithstanding Preston’s arguments to the contrary,
     she has not “provided evidence that a person outside
     Plaintiff’s protected group [Donna Santopietro] was
     permitted to miss a [required] shift.” Br. of Appellant at
     45. It is undisputed that Santopietro was not subject to
     the mandatory weekend coverage rotation, because she worked
     part-time.
                                  6
 1   to follow its own written policies, which (according to
 2   Preston) require progressive discipline in all cases, and
 3   therefore bar immediate termination. Br. of Appellant at
 4   39-42. But there is nothing inconsistent about the
 5   statements to which Preston points; they are all consistent
 6   with Preston being terminated for her refusal to work a
 7   required shift, knowing the consequences. And the
 8   discipline policy on its face does contemplate “immediate
 9   discharge, depending on the seriousness of the offense in
10   the judgment of Management and consultation with Human
11   Resources if needed.” J.A. 396; see also id. 400.
12
13        For pretext, Preston also relies on comments allegedly
14   made by Marie Marciano (a supervisor) and Shana Loitz (a co-
15   worker) about Preston’s status as a single parent in the
16   context of Preston’s failure to be placed on the MediTech
17   team. The comments were not related to Preston’s
18   termination or proximate in time. Moreover, there is no
19   evidence that Marciano or Loitz had any involvement in
20   Preston’s termination; the decision was made by the
21   Hospital’s Vice President of Human Resources, Jeanine
22   Reckdenwald, in consultation with Lamptey and McLam.
23   Therefore, the statements are not probative of the
24   Hospital’s motivation for that termination. See Henry v.
25   Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010)
26   (framework for determining whether comments are probative of
27   bias).7

         7
           Preston does not appear to contend that comments made
     by Lamptey regarding Preston’s foot injury and need for a
     transporter can establish pretext. But to the extent that
     she does, they are also insufficiently probative. Preston
     testified that Lamptey stated: “What did you have to go and
     get it X-rayed for anyway”; “[w]ell, this is becoming a
     habit”; “[t]his is becoming a bad habit”; “[w]e can’t afford
     it”; and, on an occasion Preston slipped and fell, “[c]an’t
     you stay off the floor.” J.A. 180-82, 322. The comments
     were not made in the context of Preston’s termination, which
     occurred several weeks after Preston was back to full duty.
     Even if they were sufficient to raise an inference of
     discrimination for a prima facie case (which we do not
     decide), the lack of connection to Preston’s termination (in
     time or context) renders them insufficient to raise a
     genuine dispute regarding pretext.
                                  7
1        For the foregoing reasons, and finding no merit in
2   Preston’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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