     12-3267-cv
     Sanchez-Vazquez v. Rochester City School District, 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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 14th day of May, two thousand thirteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7                     Chief Judge,
 8            ROSEMARY S. POOLER,
 9            RICHARD C. WESLEY,
10                     Circuit Judges.
11
12   - - - - - - - - - - - - - - - - - - - -X
13   LUIS O. SANCHEZ-VAZQUEZ,
14            Plaintiff-Appellant,
15
16              -v.-                                 12-3267-cv
17
18   ROCHESTER CITY SCHOOL DISTRICT,
19   SUPERVISOR GLEN DUNFORD, supervisor,
20   individually,
21            Defendants-Appellees.
22   - - - - - - - - - - - - - - - - - - - -X
23
24   APPEARING FOR APPELLANT:           CHRISTINA A. AGOLA, Christina A.
25                                      Agola, PLLC, Brighton, NY.
26
27   APPEARING FOR APPELLEES:           EDWIN LOPEZ-SOTO, General
28                                      Counsel (Michael E. Davis, of



                                           1
 1                              counsel), Rochester City School
 2                              District, Rochester, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Western District of New York (Siragusa, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Plaintiff-appellant Luis O. Sanchez-Vazquez appeals
12   from the judgment of the United States District Court for
13   the Western District of New York (Siragusa, J.), dismissing
14   the complaint on the pleadings. We assume the parties’
15   familiarity with the underlying facts, the procedural
16   history, and the issues presented for review.
17
18        “This Court ‘review[s] de novo a district court's
19   dismissal of a complaint pursuant to [Fed. R. Civ. P.]
20   12(b)(6), accepting all factual allegations in the
21   complaint as true and drawing all reasonable inferences in
22   the plaintiffs' favor.’” Rombach v. Chang, 355 F.3d 164,
23   169 (2d Cir. 2004) (quoting Ganino v. Citizens Utils. Co.,
24   228 F.3d 154, 161 (2d Cir. 2000)).
25
26        Hostile work environment claims, whether under 42
27   U.S.C. § 1981 or the New York Human Rights Law (“NYHRL”),
28   can be analyzed pursuant to the core substantive standards
29   that apply to Title VII of the Civil Rights Act of 1964, 42
30   U.S.C. § 2000e et seq. See Patterson v. Cnty. of Oneida,
31   N.Y., 375 F.3d 206, 225 (2d Cir. 2004); Reed v. A.W.
32   Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996). A
33   hostile work environment “is permeated with discriminatory
34   intimidation, ridicule, and insult, that is sufficiently
35   severe or pervasive to alter the conditions of the victim's
36   employment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
37   (2d Cir. 2000) (internal quotation marks and citations
38   omitted). “Isolated instances of harassment ordinarily do
39   not rise to this level.” Id.
40
41        Considered in their totality and viewed in the light
42   most favorable to Sanchez-Vazquez, the offensive incidents
43   alleged are insufficient to raise a genuine issue for trial
44   as to severity or pervasiveness. Sanchez-Vazquez alleges

                                  2
 1   five incidents, over four years, based on his race and
 2   national origin. This Circuit has “found triable issues of
 3   fact only where the harassment was of greater frequency and
 4   severity than anything” Sanchez-Vazquez has demonstrated.
 5   See Alfano v. Costello, 294 F.3d 365, 379 (2d Cir. 2002)
 6   (five incidents occurring over more than four years).
 7
 8        Moreover, only three of the five statements alleged by
 9   Sanchez-Vazquez can be construed as race related in
10   character. Although this Court can include all statements,
11   even facially neutral ones, “among the ‘totality of the
12   circumstances’ that courts consider in any hostile work
13   environment claim,” id. at 378, the ambiguous nature of
14   these statements further weakens any inference that the
15   conditions were so severe as to state a claim for a
16   racially hostile work environment.
17
18        We affirm dismissal regarding Sanchez-Vazquez’s claims
19   of municipal liability under Monell v. Department of Social
20   Services, 436 U.S. 658 (1978). Sanchez-Vazquez fails to
21   show that the challenged acts were performed pursuant to a
22   municipal policy or custom. Id. 692-94.
23
24        We have considered all of Sanchez-Vazquez’s contentions
25   on this appeal and have found them to be without merit.
26   Accordingly, the judgment of the district court is hereby
27   AFFIRMED.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31
32




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