         12-4162-cv
         Providence Aiossa v. Bank of America, N.A., AKA Bank of America & Co., John Frazza and Sue Cole


                                 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 4th day of September, two thousand thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       PROVIDENCE AIOSSA,
14
15              Plaintiff-Appellant,
16
17                             -v.-                                                 12-4162-cv
18
19       BANK OF AMERICA, N.A., AKA BANK OF AMERICA & CO., JOHN
20       FRAZZA AND SUE COLE,
21
22              Defendants-Appellees.
23
24
25       FOR APPELLANT:                NORMAN A. OLCH, Law Office of Norman A.
26                                     Olch, New York, NY.
27
28       FOR APPELLEES:                Deborah Zawadzki, Kaufman Borgeest & Ryan
29                                     LLP, New York, NY (Jonathan B. Bruno,
30                                     Kaufman Borgeest & Ryan LLP; Siobhan M.
31                                     Sweeney, Edwards Wildman Palmer LLP, on
32                                     the brief).
33
34
1         Appeal from the United States District Court for the
2    Eastern District of New York (Seybert, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Eastern District of New York is AFFIRMED.

7        Appellant Providence Aiossa appeals from a September

8    21, 2012 judgment of the United States District Court for

9    the Eastern District of New York (Seybert, J.) granting

10   summary judgment for Defendants on Aiossa’s claims of

11   retaliation, age discrimination, and aiding and abetting in

12   violation of the New York State Human Rights Law, N.Y. Exec.

13   Law § 296 (“NYSHRL”), and the New York City Human Rights

14   Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”).       We assume the

15   parties’ familiarity with the underlying facts, the

16   procedural history, and the issues presented for review.

17       We review an order granting summary judgment de novo,

18   resolving all ambiguities and drawing all permissible

19   factual inferences in favor of the non-moving party.          See

20   Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d

21   102, 108 (2d Cir. 2013).   Summary judgment is appropriate

22   only when “the movant shows that there is no genuine dispute

23   as to any material fact and the movant is entitled to

24   judgment as a matter of law.”       Fed.R.Civ.P. 56(a).   A

25   genuine issue of fact exists for summary judgment purposes

                                     2
1    “where the evidence is such that a reasonable jury could

2    decide in the non-movant’s favor.”   Beyer v. Cnty of Nassau,

3    524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v.

4    Gardner, 480 F.3d 140, 145 (2d Cir. 2007)).   To resist a

5    motion for summary judgment, a party must provide more than

6    conclusory allegations and must “show more than ‘some

7    metaphysical doubt as to the material facts.’” Gorzynski v.

8    JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)

9    (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

10   475 U.S. 574, 586 (1986)).

11       The NYSHRL and NYCHRL make it unlawful for an employer

12   to, among other things, discriminate on the basis of age,

13   N.Y. Exec. Law § 296(1); N.Y.C. Admin. Code § 8-107, and to

14   retaliate against an employee for engaging in protected

15   conduct, N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-

16   107, the latter of which we assume for purposes of this

17   appeal to include complaining about racial discrimination

18   against a fellow employee.

19       We analyze discrimination and retaliation claims under

20   § 296 of the NYSHRL under the burden-shifting framework of

21   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

22   Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). Under

23   that framework, if a plaintiff puts forth a prima facie case


                                  3
1    of discrimination and the defendant then provides a

2    nondiscriminatory reason for its actions, the burden shifts

3    back to the plaintiff to prove that the defendant's

4    proffered reason is pretextual.    Id.

5        We analyze discrimination and retaliation claims under

6    the NYCHRL “separately and independently from any federal

7    and state law claims,” and construe the NYCHRL “broadly in

8    favor of discrimination plaintiffs, to the extent that such

9    a construction is reasonably possible.”     Mihalik, 715 F.3d

10   at 109 (internal quotations omitted).     An employer “is

11   entitled to summary judgment [under the NYCHRL] only if the

12   record establishes as a matter of law that ‘discrimination

13   play[ed] no role.’”    Id. at 110 n.8 (citing Williams v.

14   N.Y.C. Hous. Auth., 61 A.D.3d 62 (1st Dep’t 2009)).

15       Appellant argues that the district court erred in

16   failing to separately analyze her NYCHRL and NYSHRL claims.

17   To the extent the district court erred, the error was

18   harmless; even where Appellant may be entitled to the

19   NYCHRL’s broader protections, there is no genuine issue as

20   to whether discriminatory or retaliatory intent motivated

21   Defendants’ actions.

22       Appellant, who was a Bank of America mortgage loan

23   officer when the alleged retaliation and discrimination


                                    4
1    occurred, identifies two instances of protected conduct: In

2    January 2007, Appellant complained that a fellow employee

3    was the target of racial discrimination, and around April

4    2008, Appellant complained that a fellow employee and

5    herself were the victim of discrimination.   She argues that

6    following these complaints, Appellees retaliated against her

7    by, among other things, stripping her of her Long Island

8    banking centers, initiating a series of baseless

9    investigations, and ultimately terminating her.

10       To support her claims, Appellant fails to present

11   probative facts beyond some measure of temporal proximity.

12   Yet even where temporal proximity might otherwise have been

13   probative, Appellees rebutted Appellant’s claims: (1)

14   similarly situated employees who did not complain about

15   discrimination were presented with the same options, i.e. to

16   transfer or to join the Long Island sales team under a new

17   manager; and (2) substantial evidence supported Appellees’

18   contention that legitimate, non-retaliatory reasons

19   motivated their decision to investigate Aiossa for fraud.

20   Short of speculation, therefore, there is no evidence that

21   retaliation or Aiossa’s age played even a partial motivating

22   role in any of the allegedly adverse actions.

23


                                  5
1       We have reviewed Appellant’s remaining arguments

2   and find them to be without merit.   For the foregoing

3   reasons, the judgment of the district court is hereby

4   AFFIRMED.

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

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