Fahrenkrug v. Verizon Services Corp.
652 F. App'x 54
2d Cir.
2016
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Docket

SUMMARY ORDER

Plаintiff-Appellant Susan Fahrenkrug (“Plaintiff’) appeals from an Order of the United States District Court for the Northern District of New York (Sannes, J.) granting a mоtion for summary judgment by Defendants-Appellees Verizon Services Corp. (“Verizon”) and several individuals (collectively with Verizon, “Defendants”), and dismissing Plaintiffs amended complaint in its entirety with prejudice. Plaintiff also seeks review of the District Court’s partial denial of a previously filed motion to compel discovery.1

*56At the outset, we note that Plaintiff has waived certain arguments she pursued below by failing to raisе them on appeal. We thus consider only the following claims: (1) disparate treatment on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq, (“Title VII”), and the New York State Human Rights Law, Exec. Law § 290 et seq. (“NYSHRL”); (2) retaliation in violation of Title VII and the NYSHRL; and (3) certain discovery rulings by the Distriсt Court.2

To establish a prima facie case of gender discrimination under Title VII and the NYSHRL,3 a plaintiff must demonstrate: (1) membership in a prоtected class; (2) satisfactory job performance; (3) an adverse employment ‍‌‌​​‌​‌‌‌​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​‍action; and (4) circumstances surrounding the еmployment action that give rise to an inference of discrimination. Montana v. First Fed. Sav. & Loan Ass’n of Rochester, 869 F.2d 100, 106-07 (2d Cir. 1989); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Failure to establish any one of these necessary elements mandates dismissal of the plaintiffs complaint. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

An adverse employment action is “a materially adverse change in the terms аnd conditions of employment.” Sanders v. NYC Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (internal quotation marks omitted). “Employment actions that [this Court has] deemed sufficiently disadvantageous tо constitute an adverse employment action include a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss-of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (alteration and internal quotation marks omitted).

A plaintiff may raise an inference of discrimination by showing disparate treatment, i.e., by showing that his employer “treated him less favorably than ‍‌‌​​‌​‌‌‌​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​‍a similarly situated employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). “When considering whether a plaintiff has raised an inference of discrimination by showing that-she was subjected to disparatе treatment, we have said that the plaintiff must show she was ‘similarly situated in all material respects’ to the individuals with whom she seeks to compare herself.” Id. (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)). “As a general rule, whether [employeejs are similarly situated is a factual issue that should be *57submitted to the jury. This rule is not absolute, however, and a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (citation omitted).

For substantially the reasons stated by the District Court, we find that Plaintiff failed to make out a prima facie case of gender discrimination. Specifically, we conclude that Plaintiff failed to prove circumstances surrounding adverse employment actions that give rise to an inference of gender discrimination. Despite her claims of disparate treatment, Plaintiff did not submit any evidence pertaining to her male peers’ job duties, assignments, bonuses, or salary increases. With regard to Plaintiffs termination after she declinеd to move to Tampa, we agree with the District Court that “Plaintiff has failed to adduce any evidence to create a material issue of fact with respect to Forlenza’s explanation that he attempted to find her a new position in her geograрhic area, just as he attempted to find positions for Driscoll and Johnson.” Special App. 50. Plaintiff thus has not shown that she was treatеd “less favorably than a similarly situated employee outside [her] protected group.” Graham, 230 F.3d at 39.

For similar reasons, we affirm the District Court’s ruling that Plаintiffs retaliation claims fail. In addition to retaliatory discharge, Plaintiff argued that Defendants retaliated for her gender discrimination сomplaints by ignoring those complaints and then monitoring or recording the computer that she used at work. We find that the District Court proрerly dismissed these claims on the basis that “[t]hese allegations, even if true, do not show an adverse employment action” and that “failure to investigate an employee’s complaint is not retaliation for filing that same complaint.” Special App. 60 (citing Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)).

Finаlly, we find that the District Court did not abuse its discretion in making any of the discovery rulings that Plaintiff challenges on appeal. The ‍‌‌​​‌​‌‌‌​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​‍District Court properly exercised its discretion in allowing Defendants the opportunity to supplement their privilege log and submit documents for in camera review. Thе District Court also found properly, based upon this in camera review and firmly established case law concerning work product privilege, that еach of the individually withheld communications were “clearly addressed under the supervision of the legal department [and made] in anticipation of litigation.” App. 419. Lastly, the District Court did not abuse its discretion in denying Plaintiffs request for company-wide discovery on the basis that this request was overly broad.

We have considered all of Plaintiffs remaining arguments and find them to be without merit.4 We see no material factual dispute on the record barring judgment as a matter of law, and thus we AFFIRM the judgment of the District Court.

Notes

. We review de novo a district court’s grant of summary judgment, construing the evidence in the light most favorable to the non-moving party, Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). The function of this Court is not to "weigh the evidence and determine the truth of the matter,” but instead only to determine whether "there ‍‌‌​​‌​‌‌‌​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​‍are any genuine factual issues that properly can be resolved only by a finder оf fact because they may reasonably be resolved in favor of either party." Perreca v. Gluck, 295 F.3d 215, 220 (2d Cir. 2002) (internal quotation marks omitted).

A district court’s discovery rulings “are reversed оnly upon a clear showing of an abuse of discretion.” Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992). An abuse of discretion occurs only if the ruling is based on an erroneous view of the law, a clearly erro*56neous assessment of the evidence, or results in a decision that "cannot be located within the rаnge of permissible decisions.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (internal quotation marks omitted).

We assume the parties' familiarity with the facts and record below, which we reference only as nеcessary to explain our decision.

. Like the District Court, we reject Plaintiff’s affidavit insofar as it contains inadmissible hearsay and contradicts Plaintiffs prior sworn deposition testimony. See Special App. 19 n.1. A party may not defeat a motion for summary judgment by submitting ‍‌‌​​‌​‌‌‌​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​‍an affidavit that disputes or contradicts, prior sworn testimony. See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). Similarly, affidavits submitted to defeat summary judgment "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial.” Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (per curiam),

. We apply the same analytical framework to review claims under Title VII and the NYSHRL. Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010).

. Because we find that Plaintiff failed to establish a prima facie case of gender discrimination, we need not consider any further steps under the McDonnell Douglas burden-shifting analysis.
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