        10-5142-cv
        Orlando v. Department of Transportation


                         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 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
 2      the Second Circuit, held at the Daniel Patrick Moynihan United
 3      States Courthouse, 500 Pearl Street, in the City of New York, on
 4      the 18th day of January, two thousand twelve.
 5
 6      PRESENT:
 7                  DENNIS JACOBS,
 8                       Chief Judge,
 9                  RICHARD C. WESLEY,
10                  SUSAN L. CARNEY,
11                       Circuit Judges.
12      _____________________________________
13
14      Felice Orlando,
15
16                        Plaintiff-Appellant,
17
18                  v.                                     10-5142-cv
19
20      Department of Transportation,
21      Commissioner,
22
23                        Defendant-Appellee.
24
25      _____________________________________
26
27
28      FOR PLAINTIFF-APPELLANT:                  Felice Orlando, pro se,
29                                                Waterford, CT
30
 1   FOR DEFENDANT-APPELLEE:           Michael K. Skold, Assistant
 2                                     Attorney General, for
 3                                     George Jepsen, Attorney
 4                                     General,
 5                                     Hartford, CT

 6       Appeal from a judgment of the United States District

 7   Court for the District of Connecticut (Underhill, J.).

 8       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 9   AND DECREED that the judgment of the district court is

10   AFFIRMED.

11       Plaintiff-Appellant Felice Orlando, pro se, appeals the

12   district court’s dismissal of his complaint, brought

13   pursuant to Title VII of the Civil Rights Act of 1964, 42

14   U.S.C. § 2000e et seq. (“Title VII”), alleging claims of

15   discrimination, retaliation, and a hostile work environment.

16   We assume the parties’ familiarity with the underlying

17   facts, the procedural history of the case, and the issues

18   presented for review.

19       We review an order granting summary judgment de novo

20   and ask whether the district court properly concluded that

21   there were no genuine issues of material fact and that the

22   moving party was entitled to judgment as a matter of law.

23   See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300

24   (2d Cir. 2003).   “In determining whether there are genuine



                                   2
 1   issues of material fact, we are required to resolve all

 2   ambiguities and draw all permissible factual inferences in

 3   favor of the party against whom summary judgment is sought.”

 4   Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)

 5   (internal quotation marks omitted).   However, “conclusory

 6   statements or mere allegations [are] not sufficient to

 7   defeat a summary judgment motion.”    Davis v. New York, 316

 8   F.3d 93, 100 (2d Cir. 2002).

 9   [1] In order to make out a prima facie case of

10   discrimination in violation of Title VII, a plaintiff has

11   the burden of establishing that: (1) he is a member of a

12   protected class; (2) he performed the job satisfactorily or

13   was qualified for the position; (3) he suffered an adverse

14   employment action; and (4) the action occurred under

15   circumstances giving rise to an inference of discrimination.

16   See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

17   (1973).   Once a plaintiff makes out a prima facie case of

18   discrimination, the burden of production shifts to the

19   employer to demonstrate a legitimate, non-discriminatory

20   reason for the adverse employment decision.    See id.   The

21   burden then shifts back to the plaintiff to present evidence

22   that the employer’s proffered reason is a pretext for an

23   impermissible motive.   See id. at 804-05.

                                    3
 1       Although Orlando alleged that the Appellee failed to

 2   promote him, he had been promoted three times.    Appellee’s

 3   failure to promote Orlando in 2007 cannot support a prima

 4   facie discrimination finding because he failed the test that

 5   was administered for the promotion that year.    Therefore, he

 6   was not qualified for the position.   Absent an adverse

 7   employment action, Orlando has not alleged a discrimination

 8   claim under Title VII.   See, e.g., Sanders v. N.Y. City

 9   Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (an

10   adverse employment action involves a “materially adverse

11   change in the terms and conditions of employment” (internal

12   quotation marks omitted)).

13   [2] To establish a prima facie Title VII retaliation claim,

14   Orlando would have to show that: (1) he engaged in protected

15   activity under Title VII; (2) the DOT was aware of the

16   activity; (3) he suffered an adverse employment action; and

17   (4) there was a causal connection between the protected

18   activity and the adverse action.   See Mack v. Otis Elevator

19   Co., 326 F.3d 116, 129 (2d Cir. 2003).   Upon such a prima

20   facie showing, the DOT would bear the burden of showing a

21   legitimate, nonretaliatory reason for the adverse employment

22   action, and, if it made such a showing, Orlando would then

23   have to demonstrate that the reason proffered was

                                   4
 1   pretextual.    See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216

 2   (2d Cir. 2001).   As set forth above, Orlando has not shown

 3   that he suffered an adverse employment action, and he

 4   therefore cannot state a retaliation claim under Title VII.

 5   [3] To prevail on a hostile work environment claim, a

 6   plaintiff must show: (1) a workplace “permeated with

 7   discriminatory intimidation that was sufficiently severe or

 8   pervasive to alter the conditions of [his] work environment,

 9   and (2) that a specific basis exists for imputing the

10   conduct that created the hostile work environment to the

11   employer.”    Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d

12   Cir. 2004).   “For racist comments, slurs, and jokes to

13   constitute a hostile work environment . . . there must be

14   more than a few isolated incidents of racial enmity.”

15   Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73,

16   83 (2d Cir. 2009) (internal quotation marks omitted).

17   “Overall, the quantity, frequency, and severity of the slurs

18   at issue are to be considered cumulatively in order to

19   obtain a realistic view of the work environment.”     Id.

20   (internal quotation marks and alterations omitted).

21       Under Title VII, a complaint must be filed with the

22   Equal Employment Opportunity Commission within 300 days of

23   the alleged unlawful act.    See 42 U.S.C. § 2000e-5(e)(1).

                                    5
 1   However, with respect to hostile work environment claims,

 2   consideration is given to “behavior alleged outside the

 3   statutory time period, . . . so long as an act contributing

 4   to that hostile environment takes place within the statutory

 5   time period.”   Amtrak v. Morgan, 536 U.S. 101, 105 (2002).

 6   Although Orlando’s deposition testimony reflects that a co-

 7   worker called him racial slurs in 1996, Orlando also

 8   testified that the co-worker has retired; and there is a

 9   dearth of record evidence that Orlando was subjected to

10   similar episodes thereafter.     Even if derogatory comments

11   made in 1996 created a hostile work environment, they could

12   not be timely raised as part of Orlando’s hostile work

13   environment claim in his 2006 Equal Employment Opportunity

14   Commission complaint.

15       We have considered Orlando’s remaining arguments and

16   find them to be without merit.     Accordingly, we AFFIRM the

17   judgment of the district court.
18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22




                                    6
