     16-3181
     Sandia v. Wal-Mart Stores, East LP


                             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 TO 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,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 27th day of October, two thousand seventeen.
 4
 5   PRESENT:
 6               Guido Calabresi,
 7               Rosemary S. Pooler,1
 8                     Circuit Judges.
 9   _____________________________________
10
11   Ruben Sandia,
12
13                               Plaintiff-Appellant,
14
15                     v.                                                    16-3181
16
17   Wal-Mart Stores, East LP,
18
19                     Defendant-Appellee.
20   _____________________________________
21
22
23   FOR PLAINTIFF-APPELLANT:                                  Ruben Sandia, pro se, Schenectady,
24                                                             NY.

     1
       Judge Newman, a member of the original panel, subsequently recused himself. Therefore, this
     case is decided by the two remaining members of the panel pursuant to Internal Operating
     Procedure E(b) of the Rules of the United States Court of Appeals for the Second Circuit.


                                                        1
25
26   FOR DEFENDANT-APPELLEE:                                      Joseph J. Ortego, Nixon Peabody
27                                                                LLP (Juan Luis Garcia-Paz, on the
28                                                                brief), Jericho, NY.
29

30          Appeal from a judgment of the United States District Court for the Northern District of

31   New York (Sharpe, J.; Baxter, M.J.).


32          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

33   DECREED that the judgment of the district court is AFFIRMED.

34          Appellant Ruben Sandia, proceeding pro se, appeals from the district court’s grant of

35   summary judgment in favor of Wal-Mart, his former employer, on his claims of racial and national

36   origin discrimination, retaliation, and a hostile work environment in violation of Title VII of the

37   Civil Rights Act of 1964. Sandia also challenges the denial of his motion for leave to file a second

38   amended complaint. We assume the parties’ familiarity with the underlying facts, the procedural

39   history of the case, and the issues on appeal.

40          We review de novo a district court’s grant of summary judgment, with the view that

41   summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to

42   any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez, 702

43   F.3d 124, 127 (2d Cir. 2012) (citing Fed.R.Civ.P. 56(a)) (internal quotation marks omitted). We

44   review a district court’s denial of leave to amend for abuse of discretion. Holmes v. Grubman, 568

45   F.3d 329, 334 (2d Cir. 2009).

46          Upon review, we conclude that the district court properly granted summary judgment on

47   Sandia’s discrimination, retaliation, and hostile work environment claims. We affirm for

48   substantially the reasons stated by the district court in its thorough August 18, 2016 decision.

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49   Sandia has failed to provide evidence in support of the various elements of his claims, and his

50   general reliance on conclusory allegations and speculation is insufficient to overcome summary

51   judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).

52          The denial of leave to amend the complaint to add claims of defamation and intentional

53   infliction of emotional distress was not an abuse of discretion because the proposed amendments

54   would have been futile. Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). To support a claim

55   of defamation under New York law, a plaintiff must allege “that the defendant published to a third

56   party a defamatory statement of fact that was false, was made with the applicable level of fault, and

57   either was defamatory per se or caused the plaintiff special harm, so long as the statement was not

58   protected by privilege.” Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir. 2011). Here, Sandia’s

59   speculation that Wal-Mart may have spoken to Sandia’s prospective employer fails to plausibly

60   allege that Wal-Mart made a false statement, unprotected by the qualified privilege generally

61   afforded to communications between a plaintiff’s former and prospective employers. See Boyd v.

62   Nationwide Mutual Insurance Co., 208 F.3d 406, 409-10 (2d Cir. 2000); Serratore v. American

63   Port Services, Inc., 739 N.Y.S.2d 452 (2d Dep’t 2002). Moreover, Sandia failed to state a plausible

64   intentional infliction of emotional distress claim because he failed to allege conduct so

65   “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency

66   to be regarded as atrocious, and utterly intolerable in a civilized society.” Stuoto v. Fleishman, 164

67   F.3d 820, 827 (2d Cir. 1999); see also Howell v. N.Y. Post Company, Inc., 81 N.Y.2d 115, 122 (Ct.

68   App. 1993).

69

70


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71          We have considered Sandia=s remaining arguments and find them to be without merit.

72   Accordingly, we AFFIRM the judgment of the district court.

73                                             FOR THE COURT:
74                                             Catherine O=Hagan Wolfe, Clerk




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