22-810 Gittens-Bridges v. City of New York

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of December, two thousand twenty-three.

PRESENT:

JOSÉ A. CABRANES, RICHARD J. SULLIVAN, ALISON J. NATHAN, Circuit Judges. ______________________________________

LORRAINE A. GITTENS-BRIDGES,

Plaintiff-Appellant,

v. No. 22-810

CITY OF NEW YORK, CLAUDETTE WYNTER, DINA SIMON, NADENE PINNOCK, AUDWIN PEMBERTON, GARLAND BARRETO,

Defendants-Appellees. ∗ ______________________________________ ∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: KENNETH E. GORDON, Gordon, Gordon & Schnapp, P.C., New York, NY.

For Defendants-Appellees: JANET L. ZALEON (Richard Dearing, Devin Slack, on the brief), Assistant Corporation Counsel, for Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Edgardo Ramos, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Lorraine A. Gittens-Bridges (“Gittens”), an employee of the New York City

Department of Correction, appeals from the district court’s grant of summary

judgment in favor of Defendants the City of New York and several of Gittens’s

supervisors (“Defendants”), on her age discrimination, hostile work environment,

and retaliation claims under the New York State Human Rights Law (the

“NYSHRL”) and the New York City Human Rights Law (the “NYCHRL”). 1 We

1Gittens concedes that the district court’s June 11, 2020 ruling on Defendants’ motion to dismiss “effectively disposed” of her claims under the Age Discrimination in Employment Act and

2 assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

On appeal, Gittens argues that the district court failed to properly apply the

relevant legal standards and overlooked evidence in the record in granting

summary judgment to Defendants. We review a district court’s grant of

summary judgment de novo, see Kee v. City of New York,

, 157–58 (2d Cir.

2021), and will affirm when there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).

Where, as here, a district court disregards a party’s submission for failure to

comply with a local or individual rule, we review that decision for abuse of

discretion, “accord[ing] considerable deference” to the district court’s ruling.

LoSacco v. City of Middletown,

(2d Cir. 1995).

Before turning to the merits of Gittens’s claims, we first address the

profound procedural shortcomings in her summary-judgment submissions below.

Specifically, the record reflects that – despite receiving several lengthy extensions

indicates that she “does not contest any portion of the June 11, 2020 [d]ecision on this appeal.” Gittens Br. at 20. To the extent that Gittens’s federal claims, such as those brought pursuant to

, survived the July 11, 2020 decision, she has abandoned any such claims on appeal by failing to address them in her brief. See United States v. Joyner,

(2d Cir. 2002).

3 – Gittens’s counsel failed to timely file a memorandum of law in opposition to

Defendants’ motion; the submissions she did timely file failed to cogently advance

any legal arguments in opposition to summary judgment; and her response to

Defendants’ Rule 56.1 statement failed to comply with Local Civil Rule 56.1 in

many critical respects. Recognizing these procedural deficiencies, the district

court granted Defendants’ motion to strike Gittens’s untimely opposition and

disregarded her other submissions to the extent they were procedurally and

substantively deficient. It noted that these failures “could merit the [c]ourt

granting [Defendants’] motion in full”; nevertheless, “[i]n fairness to Gittens,” the

court decided that it would exercise its discretion to consider the motion on the

merits. Sp. App’x at 72–73.

In light of Gittens’s procedural failures and the district court’s assiduous

review of the record, we cannot say that the district court erred in granting

summary judgment here. As Gittens herself recognizes, her attorney’s conduct

in opposing Defendants’ motion below was nothing short of “outrage[ous].”

Gittens Br. at 23. Gittens therefore does not even attempt to argue – nor could she

– that the district court abused its discretion in disregarding her various

submissions (or portions thereof). And, contrary to Gittens’s contention, it was

4 entirely appropriate for the district court to conclude that summary judgment was

warranted once her opposition and the offending portions of her Rule 56.1

statement had been stricken. See, e.g., T.Y. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2009) (“A nonmoving party’s failure to respond to a Rule 56.1

statement permits the court to conclude that the facts asserted in the statement are

uncontested and admissible.”); Millus v. D’Angelo,

, 138 (2d Cir. 2000).

Further, there is no question that the district court carefully conducted an

independent and extensive review of the record to ensure that Defendants’

assertions of fact were adequately supported and that the requirements for

summary judgment on each of Gittens’s claims had been met. See T.Y.,

; Holtz v. Rockefeller & Co.,

, 73–74 (2d Cir. 2001), abrogated on other

grounds by Gross v. FBL Fin. Servs., Inc.,

(2009); Jackson v. Fed. Exp.,

, 194–95 (2d Cir. 2014).

For instance, in granting summary judgment as to Gittens’s age

discrimination claims, the district court properly concluded that Gittens failed to

establish that her age played any role in Defendants’ employment decisions given

the record evidence demonstrating that her job performance did not warrant a

promotion; there were reasonable grounds for Defendants’ hiring and promotion

5 decisions; and three of the applicants selected for positions Gittens applied for

were approximately her age. 2 See Hudson v. Merrill Lynch & Co.,

(1st Dep’t 2016) (explaining that, even when applying the more liberal “mixed-

motive” framework under the NYCHRL, a plaintiff seeking to avoid summary

judgment must still raise “triable issues of fact that discrimination was one of the

motivating factors for the defendant’s conduct” (internal quotation marks

omitted)). In fact, the only competent evidence advanced by Gittens that even

arguably could give rise to an inference of age-based animus – a statement in

which one supervisor referred to Gittens as an “old school secretary without

computer skills,” and another statement in which a supervisor called her

“mommy,” Sp. App’x at 79 – were stray remarks unconnected to any purported

adverse employment decision, which are insufficient to demonstrate an intent to

discriminate on the basis of her age. See Lively v. WAFRA Inv. Advisory Grp., Inc.,

, 307 (2d Cir. 2021) (“[S]tray remarks, without more, do not constitute

sufficient evidence to make out a case of employment discrimination.” (emphasis

and internal quotation marks omitted)); Mihalik v. Credit Agricole Cheuvreux N. Am.,

2 Gittens asserts that we should credit her “testimony about the nature of her assignments and the quality of her work pre-2014” because Defendants could not locate her pre-2013 personnel files. Gittens Br. at 4 n.2. But this argument was not raised in the district court and therefore is forfeited. See New York ex rel. Schneiderman v. Actavis PLC,

(2d Cir. 2015).

6 Inc.,

(2d Cir. 2013) (explaining that defendants can avoid liability

under the NYCHRL if the “conduct complained of consists of nothing more than

. . . petty slights” (internal quotation marks omitted)). While Gittens makes much

of her testimony that a supervisor purportedly told her that she was “not

intelligent enough” to be promoted, see, e.g., Gittens Br. at 34, she fails to explain

how such a comment would be at all probative of age discrimination and fails to

justify her failure to even mention this testimony in her Rule 56.1 statement.

As to Gittens’s hostile work environment claims, the district court correctly

concluded that the vast majority of the conduct alleged to have created a hostile

work environment did not in any way relate to her protected characteristic – i.e.,

her age. See Williams v. N.Y.C. Hous. Auth.,

(2d Cir. 2023) (“For a

NYCHRL claim to survive summary judgment, the plaintiff need only show that

her employer treated her less well than other employees, at least in part for a

discriminatory reason.” (emphasis added and internal quotation marks omitted)).

As stated previously, the comments referring to Gittens as an “old school

secretary” and “mommy” were “no more than . . . petty slight[s]” and do not

support an inference of age-based discrimination even under the more plaintiff-

friendly NYCHRL standards. Mihalik,

.

7 Gittens’s retaliation claims fail for similar reasons, even assuming, arguendo,

that Gittens established a prima facie case. Because Defendants established that

they had legitimate, non-retaliatory reasons for assigning Gittens clerical tasks and

not promoting her to certain roles, the burden shifted back to Gittens to show that

the stated reasons were pretextual and that Defendants took these actions to

retaliate against her for engaging in protected activity.

(explaining that,

even under the NYCHRL, summary judgment is appropriate “if the plaintiff

cannot show that retaliation played any part in the employer’s decision”). The

record clearly indicates that Defendants assigned Gittens tasks commensurate

with her demonstrated job performance and that she was not selected for certain

positions because other candidates were more qualified. See Byrnie v. Town of

Cromwell, Bd. of Educ.,

(2d Cir. 2001), superseded in part on other

grounds by Fed. R. Civ. P. 37(e). The district court was therefore justified in

granting summary judgment to Defendants on Gittens’s retaliation claims.

Finally, because Gittens failed to establish liability as to her age

discrimination, hostile work environment, and retaliation claims, the district court

8 rightly dismissed her aiding and abetting claims against the individual

Defendants. 3

In sum, we see no reason to disturb the district court’s decision to grant

summary judgment as to each of Gittens’s claims. We have considered Gittens’s

remaining arguments and find them to be without merit. Accordingly, we

AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3 In her brief, Gittens conclusorily asserts that “[u]nder the NYCHRL, individuals can be sued in their individual capacities quite apart from whether they are deemed to have aided and abetted.” Gittens Br. at 56. That in no way alters the result here given that Gittens failed to establish that the actions taken by any individual Defendant were discriminatory or retaliatory.

9