     10-756-cv
     Vito v. Bausch & Lomb
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
     CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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, held at
 2   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3   York, on the 17 th day of December, two thousand ten.
 4
 5   PRESENT:         GERARD E. LYNCH,
 6                    DENNY CHIN,
 7                                             Circuit Judges,
 8                    EDWARD R. KORMAN,
 9                                             District Judge.*
10   ------------------------------------------------------------------
11
12   ROSEMARIE VITO,
13                                            Plaintiff-Appellant,
14
15                            v.                                             No. 10-756-cv
16
17   BAUSCH & LOMB INCORPORATED,
18                         Defendant-Appellee.
19
20   --------------------------------------------------------------------
21
22   FOR APPELLANT:                   Christina A. Agola, Rochester, New York.
23
24   FOR APPELLEE:                    Laura H. Harshbarger, Bond, Schoeneck & King, Syracuse,
25                                    New York.
26
27            Appeal from the United States District Court for the Western District of New York

28   (Charles J. Siragusa, Judge).

              *
              Honorable Edward R. Korman of the United States District Court for the Eastern
     District of New York, sitting by designation.
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

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

 3          Plaintiff-appellant Rosemarie Vito (“Vito”), a Filipino woman, sued her former

 4   employer, defendant-appellee Bausch & Lomb, for employment discrimination and

 5   retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

 6   § 1981, and New York State Human Rights Law (“NYSHRL”). The district court (Siragusa,

 7   J.) granted summary judgment for Bausch & Lomb and Vito appealed. We assume the

 8   parties’ familiarity with the facts and record of prior proceedings, which we reference only

 9   as necessary to explain our decision.

10                                           DISCUSSION

11          We review orders granting summary judgment de novo and focus on whether the

12   district court properly concluded that there was no genuine issue as to any material fact and

13   that the moving party was entitled to judgment as a matter of law. Allianz Ins. Co. v. Lerner,

14   416 F.3d 109, 113 (2d Cir. 2005). In making that determination, we “constru[e] the evidence

15   in the light most favorable to the non-moving party and draw[] all reasonable inferences in

16   that party’s favor.” Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008).1

17   I. Vito’s Hostile Work Environment Claims



            1
                Our review is hindered by Vito’s failure to support her factual assertions with
     adequate citations to the record. See Fed. R. App. P. 28(e) (“References to parts of the
     record contained in the appendix . . . must be to the pages of the appendix.”). This deficiency
     is all the more troubling because Vito’s counsel has a record of disregarding the rules of this
     Court. See Male v. Tops Markets, LLC, 354 F. App’x 514, 515 (2d Cir. 2009) (noting
     previous dismissal for counsel’s “repeated failures to comply with the rules of this Court”).

                                                   2
 1          “In order to establish a hostile work environment . . . [Vito] must show that the

 2   workplace was so severely permeated with discriminatory intimidation, ridicule, and insult

 3   that the terms and conditions of her employment were thereby altered.”            Fincher v.

 4   Depository Trust & Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010); see Howley v.

 5   Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000). Bausch & Lomb initially employed

 6   Vito in its PureVision department. Approximately one year later she applied for and received

 7   a job in the Microbiology department. These two departments were housed in separate

 8   buildings and after the transfer Vito never again spoke to or interacted with her former

 9   colleagues from PureVision. We therefore consider the events in each department separately.

10   See McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 78 (2d Cir. 2010).

11          A. PureVision Department

12          “[I]t is axiomatic that in order to establish a . . . hostile work environment . . . a

13   plaintiff must demonstrate that the conduct occurred because of her [membership in a

14   protected class].” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal quotation

15   marks omitted). Many of the incidents Vito claims demonstrate a hostile work environment

16   amount to, at most, workplace bullying completely detached from any discriminatory motive.

17   For example, we can discern no reason why either Shift Supervisor Rich Goodburlet

18   (“Goodburlet”) ringing a bell in Vito’s presence or co-worker Mehmet Charlayan

19   (“Charlayan”) throwing tape at her constitute anything more than “minor annoyances” typical

20   of those “all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

21   53, 67 (2006). Similarly, Vito was only incidentally involved in much of the sexual banter

                                                  3
 1   that allegedly took place in the department. For example, Vito complains that she witnessed

 2   Charlayan “flicking his tongue up and down in the direction of Deb Rock” (“Rock”), another

 3   one of Vito’s coworkers, and that “a note was placed on Deb Rock’s back indicating that she

 4   was ‘property.’” 2

 5          Vito’s few allegations of harassment targeted at her are relatively minor: she claims

 6   that Charlayan once displayed a sign on which he had written “69” and that her colleagues

 7   had her read from a card that may have contained the word “fucking.” These incidents

 8   amount to little more than “the sporadic use of abusive language, gender-related jokes, and

 9   occasional teasing” that fail to create a hostile environment. Faragher v. City of Boca Raton,

10   524 U.S. 775, 788 (1998) (internal quotation marks omitted).

11          Vito also alleges inappropriate physical contact. According to Vito, Goodburlet once

12   approached her from behind as she sat at her workstation on a chair that had a low backrest

13   and no armrests. While it is not precisely clear from Vito’s deposition testimony exactly

14   what transpired, it appears that Goodburlet pushed against the back of her chair and touched

15   part of her back and side. Vito further alleges that on at least two separate occasions

16   Goodburlet touched her shoulder. However, in Quinn v. Green Tree Credit we affirmed a

17   grant of summary judgment in the face of allegations that plaintiff’s boss had “deliberately

18   touched [her] breasts with some papers that he was holding” and informed petitioner that she

19   had been voted the “‘sleekest ass’ in the office.” 159 F.3d 759, 768 (2d Cir. 1998), abrogated



            2
              Vito does not claim that Rock was a victim of sexual harassment. Instead, Vito
     asserts that Rock and Charlayan were two of her principal harassers.

                                                   4
 1   on other grounds by Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Though no

 2   doubt irritating, inappropriate, and offensive, the harassment Vito alleges is less severe than

 3   the overtly sexual conduct that we found insufficient to sustain a hostile work environment

 4   in Quinn.3 Therefore, after examining de novo “the case-specific circumstances in their

 5   totality and evaluat[ing] the severity, frequency, and degree of the [alleged] abuse,” Alfano,

 6   294 F.3d at 374, we conclude that the record before us is insufficient to sustain a hostile work

 7   environment claim based on Vito’s allegations arising out of her time at PureVision.

 8          B. Microbiology Department

 9          Vito alleges that a single incident of improper touching occurred while she worked

10   in the Microbiology department. During the first day of Vito’s deposition, she testified that

11   her supervisor, Brian David (“David”), once touched her left shoulder. When asked whether

12   any other physical contact occurred, Vito responded (consistent with her EEOC complaint)

13   “no.” The next day, however, Vito testified that David touched the side of her breast.

14          Vito’s testimony regarding this incident is far from clear. Instead of explaining what

15   occurred, Vito merely indicated body movements that the stenographer was unable to record.

16   In her brief before this Court, Vito claims that her supervisor’s “right hand slipped down




            3
              Vito’s brief also alleges that she was “mimicked” and “ridiculed” “because of her
     ancestry” and that her co-workers “made fun of [her] English” and “would laugh at [her]
     when she talked.” These are serious allegations, but counsel fails to support them with
     adequate citations to the record and our independent review uncovered insufficient evidence
     to create a material issue of fact that would justify overturning the district court’s grant of
     summary judgment.

                                                    5
 1   [from Vito’s shoulder] and touched her right breast.” 4 (emphasis added.) Assuming that this

 2   incident occurred, its severity falls short of the deliberate touching of the petitioner’s breast

 3   in Quinn and therefore is insufficient to sustain a claim for hostile work environment.

 4   II. Vito’s Retaliation Claims Under Title VII and NYSHRL

 5          “Claims for retaliation [under NYSHRL] are analyzed under the same burden-shifting

 6   framework established for Title VII cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719

 7   (2d Cir. 2002). “In order to establish a prima facie case of retaliation, [Vito] must show that:

 8   (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the

 9   employer took adverse employment action against her; and (4) a causal connection exists

10   between the alleged adverse action and the protected activity.” Schiano v. Quality Payroll

11   Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006).

12          Our thorough review of the record revealed absolutely no conduct by Bausch & Lomb

13   that could be considered an adverse employment action. Vito requested the shift change that

14   occurred at PureVision and she applied for and received the higher paying job in

15   Microbiology. During Vito’s time at Bausch & Lomb, her hours were never cut, her job

16   responsibilities never decreased, and her access to overtime never waned. There is no

17   evidence of constructive discharge or any significant retaliatory actions by co-workers or

18   supervisors. As a result, and for substantially the same reasons as set forth in the district

19   court’s order, see Vito v. Bausch & Lomb, Inc., No. 07-CV-6500, 2010 WL 681230, at *11-



            4
             This directly contradicts Vito’s deposition testimony in which she plainly stated that
     David touched her left breast.

                                                     6
 1   13 (W.D.N.Y. Feb. 23, 2010), we affirm the grant of summary judgment for Bausch & Lomb

 2   on Vito’s retaliation claims.

 3                                      CONCLUSION

 4          We have considered Vito’s remaining arguments and find them to be without merit.

 5   Accordingly, for the foregoing reasons, we AFFIRM the judgment of the district court.

 6
 7                                    FOR THE COURT:
 8                                    Catherine O’Hagan Wolfe, Clerk of Court
 9
10




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