Avillan v. Donahoe

See case details

Anibal AVILLAN, Plaintiff-Appellant, v. Patrick R. DONAHOE, Postmaster General, United States Postal Service, JAF Building, Defendant-Appellee.

No. 11-1772-cv.

United States Court of Appeals, Second Circuit.

May 25, 2012.

637

* The Clerk of Court is directed to amend the official caption as shown above.

sought—and [was] granted—additional time to file a statement of defense,” but used that additional time to “appl[y] on an ex parte basis to [the Bombay Court] for an injunction barring the arbitration proceedings they had just appeared in from going forward.”

Amaprop II, 2011 WL 1002439, at *4, quoting

Amaprop I, 2010 WL 1050988, at *6. IFSL “‘gave Amaprop no notice of [its] decision to seek injunctive relief in India, and after obtaining the injunctions [has] refused to even supply Amaprop with the underlying papers.”

Id., quoting

Amaprop I, 2010 WL 1050988, at *6. Moreover, IFSL‘s bad-faith conduct continued before the district court with its misleading omission from the arbitration agreement‘s language and its baseless mischaracterization of the Bombay Court action as seeking merely temporary relief.

Id.

IFSL‘s remaining arguments are equally without merit. The district court did not abuse its discretion in ruling on the sanctions motion before the arbitration panel finished its proceedings; IFSL‘s sanctionable conduct in seeking to avoid the arbitration altogether was logically and legally separate from the ultimate outcome of the arbitration. Finally, IFSL‘s argument that the court erred by attributing the actions of IFSL‘s counsel to IFSL for the purposes of awarding sanctions was not made below, and accordingly has been waived.

The district court did not abuse its discretion in awarding Amaprop its fees. For the foregoing reasons, the sanctions award is AFFIRMED.

Anibal Avillan, Bronx, N.Y., pro se.

Brian K. Morgan and Joseph A. Pantoja, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Defendant-Appellee.

PRESENT: DENNIS JACOBS, Chief Judge, DENNY CHIN and CHRISTOPHER F. DRONEY, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Anibal Avillan appeals the dismissal of his complaint, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII“), alleging claims of discrimination, including retaliation and a hostile work environment. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

We review an order granting summary judgment de novo and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See

Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).

An independent review of the record and the relevant case law confirms that Avillan failed to show he suffered a materially adverse action. See

Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir.2010) (listing requirements for a prima facie Title VII discrimination claim);

Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir.2003) (listing requirements for a prima facie Title VII retaliation claim). Appellant complains only of minor workplace inconveniences, such as being replaced as acting group leader, having his custodial route reassigned and having personal items removed from a locker. These actions are not “materially adverse.” See

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (holding that in a Title VII retaliation claim, a materially adverse action is one that, “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” (internal quotation marks omitted));

Patrolmen‘s Benevolent Ass‘n v. City of N.Y., 310 F.3d 43, 51 (2d Cir.2002) (explaining that in a Title VII discrimination claim, “a materially adverse change must be more disruptive than a mere inconvenience or an alteration of job responsibilities” (internal quotation marks omitted)); see also

Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (noting that Title VII‘s anti-discrimination and anti-retaliation provisions are not co-terminous).

To the extent the amended complaint alleges a hostile work environment claim, the conduct cited is insufficient to support such a claim. See, e.g.,

Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (explaining that, in order to support a hostile work environment claim, the conduct must have been “sufficiently severe or pervasive to alter the conditions of the victim‘s employment“).

The district court did not err in disregarding allegations Avillan raised for the first time in response to Potter‘s summary judgment motion. See

Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.1998) (recognizing that a party may not use opposition to a dispositive motion as a means to amend the complaint).

Finally, to the extent that Avillan‘s pro se brief raises a claim for the first time (that he was suspended without pay for three months), “[i]t is the general rule that a federal appellate court does not consider an issue not passed upon below.” See

Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also

Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir.2005). Consequently, we decline to review this claim.

Finding no merit in Avillan‘s remaining arguments, we hereby AFFIRM the judgment of the district court.

Case Details

Case Name: Avillan v. Donahoe

Court Name: Court of Appeals for the Second Circuit

Date Published: May 25, 2012

Citation: 483 F. App'x 637

Docket Number: 18-2825

Court Abbreviation: 2d Cir.