Gender/National Origin Discrimination Claim Dismissed; Comparators Also Required to Work Holidays (Including Thanksgiving)

In Figueroa v. Johnson, 648 F. App’x 130, 133 (2d Cir. 2016), the court affirmed the dismissal of plaintiff’s gender/national origin discrimination, hostile work environment, quid pro quo sexual harassment, and retaliation claims.

Plaintiff, a Customs and Border Protection Officer at JFK Airport, argued (inter alia) that he was discriminated against on the basis of gender and national origin when he was assigned to work on Thanksgiving and New Year’s Day in late 2007.

In explaining the court’s decision to affirm the dismissal of plaintiff’s discrimination claim, the court explained:

Figueroa testified at his deposition that two officers beneath him in seniority were not required to work on holidays. However, the defendant presented evidence, which Figueroa does not contest, showing that one of those officers worked Christmas Eve 2007 and New Year’s Day 2008, while the other worked Thanksgiving 2007, Christmas Eve 2007, Christmas Day 2007, and New Year’s Day 2008. Meanwhile, Figueroa ultimately only worked New Year’s Day 2008. Figueroa, therefore, has not offered any evidence supporting an inference that he was treated worse than other officers—let alone that he was treated worse than other officers because of a protected characteristic, and thus that he was subjected to discriminatory treatment.

In explaining its decision to affirm the dismissal of plaintiff’s quid pro quo sexual harassment claim, the court explained:

Figueroa claims that he was a victim of quid pro quo sexual harassment after he rejected [his supervisor]’s alleged sexual advances. Figueroa has presented no evidence that his reaction to [his supervisor]’s alleged advances—even if those allegations are true—was used as a basis for any adverse decision. Rather, he seems to rely solely on temporal proximity to prove that the defendant took adverse action against him because he refused [his supervisor]’s supposed advances. He alleges that the encounters with [his supervisor] occurred between September 2006 and November 2006. The first instance of adverse action towards Figueroa occurred in November 2007 when he was assigned to work Thanksgiving Day. During that one-year intervening time period, [his supervisor] had multiple prior opportunities to assign Figueroa to work holidays. And, as discussed above, the defendant offered evidence of a non-quid-pro-quo reason for each of the adverse actions. Therefore, we agree with the district court that, in the circumstances of this case, a one-year gap is too long to demonstrate, without more, that the action was taken in response to Figueroa’s reaction to [his supervisor]’s alleged conduct.

Share This: