Avillan v. Donahoe

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., *639 310 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 coterminous). 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.