15-3463
     Betterson v. HSBC Bank USA, N.A.

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of September, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                DEBRA A. LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ELLEN BETTERSON,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-3463
16
17       HSBC BANK USA, N.A.,
18                Defendant-Appellee,
19
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        FRANK HOUSH, Housh Law Office,
23                                             PLLC, Buffalo, New York.
24
25       FOR APPELLEE:                         ROBERT WEISSFLACH, Harter
26                                             Secrest & Emery LLP, Buffalo,
27                                             New York.
28

                                                  1
1        Appeal from a judgment of the United States District

2    Court for the Western District of New York (Wolford, J.).

3        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

4    AND DECREED that the judgment of the district court be

5    AFFIRMED.

6        Plaintiff Ellen Betterson appeals from the judgment of

7    the United States District Court for the Western District of

8    New York (Wolford, J.) dismissing on summary judgment claims

9    for retaliation and for discrimination on the basis of race,

10   sex, and age.   We assume the parties’ familiarity with the

11   underlying facts, the procedural history, and the issues

12   presented for review. We affirm because: 1) Betterson’s age

13   and sex discrimination claims based on conduct before June

14   2, 2009 are procedurally barred; 2) Betterson’s remaining

15   age and sex discrimination claims fail either to establish

16   an adverse employment action or circumstances giving rise to

17   an inference of discrimination; 3) her race discrimination

18   claim fails to allege an adverse employment action; and 4)

19   her retaliation claim fails to establish but-for causation.

20       Despite three extensions of time, Betterson failed to

21   submit an opposing statement of material facts along with

22   her opposition to HSBC’s motion for summary judgment.    Such

23   a statement is required by the Western District’s Local Rule

24   56(a)(2).   The district court found HSBC’s statements to be

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1    supported by the record, and it properly exercised its

2    discretion in deeming Betterson to have admitted HSBC’s own

3    statement of facts.    N.Y. State Teamsters Conference Pension

4    & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49

5    (2d Cir. 2005).

6        Betterson was an HSBC employee from 1987 until her

7    termination in 2010.    She alleges that, in 2005, two

8    supervisors began discriminating against her on the basis of

9    her race (African-American) and age.    Betterson complained

10   internally, and in 2008 voluntarily transferred to a new

11   department at HSBC where she kept the same salary and

12   benefits.   She alleges that the supervisor at her new

13   department discriminated against her on the basis of her sex

14   and age (but not her race).    Betterson filed an EEOC

15   complaint alleging race, sex, and age discrimination on

16   March 29, 2010.   HSBC terminated her employment in August

17   2010 at the same time as a reduction in force due to

18   corporate reorganization, and she filed a second EEOC

19   complaint alleging retaliation shortly after.

20       Betterson’s Title VII claim of sex discrimination and

21   her claim under the Age Discrimination in Employment Act

22   (“ADEA”) were properly dismissed.    To sustain Title VII or

23   ADEA claims, a plaintiff must file administrative charges

24   with the EEOC within 300 days of the alleged act of

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1    discrimination.     Van Zant v. KLM Royal Dutch Airlines, 80

2 F.3d 708, 712 (2d Cir. 1996) (Title VII); Tewksbury v.

3    Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999) (ADEA).

4    Failure to comply bars claims based on those discriminatory

5    acts. See Van Zant, 80 F.3d at 712.

6        Betterson did not file charges with the EEOC until

7    March 29, 2010.     The 300-day limit bars claims based on

8    conduct before June 2, 2009 unless an exception applies, and

9    no exception does here.1    Betterson’s ADEA and Title VII

10   claims based on conduct before that date were therefore

11   properly dismissed.

12       As to the ADEA and Title VII claims based on conduct

13   after that date, Betterson has not made out the necessary

14   prima facie case.     Her termination is the only cognizable

15   adverse employment action she has alleged.     Tepperwien v.

16   Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir.

17   2011) (criticism, “trivial harms,” and “petty slights” not

18   sufficient).   But Betterson failed to plead that she was


         1
          The continuing violation exception is not available
     because Betterson has only alleged a series of discrete acts
     and has not plausibly alleged that those acts were in
     furtherance of any ongoing policy of discrimination. See
     Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-57 (2d
     Cir. 2012). Nor is the related exception for a hostile work
     environment claim available–-the discrete, isolated
     incidents she alleges are not enough to create an
     objectively hostile work environment. Petrosino v. Bell
     Atl., 385 F.3d 210, 221-23 (2d Cir. 2004).
                                     4
1    terminated due to discrimination--she failed to put it in

2    her complaint, her EEOC letter, or her summary judgment

3    papers.    The district judge therefore refused to consider it

4    as part of the discrimination claim.       In any event,

5    Betterson failed to establish that the termination occurred

6    under circumstances giving rise to an inference of

7    discrimination.    Betterson alleges that her supervisor at

8    the time of termination discriminated against her on the

9    basis of age and sex.    That supervisor was a woman, was

10   (slightly) older than Betterson, and had hired Betterson.

11   Betterson has adduced no evidence that the supervisor was

12   motivated by age or sex discrimination.       Grady v. Affiliated

13   Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997) (fact that

14   supervisor had herself hired plaintiff suggested no

15   inference of discrimination).       Betterson’s Title VII and

16   ADEA claims based on conduct after June 2, 2009 were

17   therefore properly dismissed.

18       Betterson’s race discrimination claim similarly fails

19   because she has not alleged an adverse employment action.

20   Exclusion from certain meetings is not an adverse employment

21   action; Betterson admits that she could still do her job and

22   there is no evidence that she was disadvantaged by that

23   exclusion.    Dillon v. Morano, 497 F.3d 247, 254-55 (2d Cir.

24   2007).    Nor can Betterson rely on the reorganization of the

                                     5
1    reporting structure, because the reorganization did not

2    affect Betterson’s role, responsibilities, or pay--and the

3    reorganization was department-wide.     Tepperwien, 663 F.3d at

4    568 (“trivial harms” are not materially adverse). Nor may

5    Betterson rely on her voluntary transfer to another

6    department, especially since that transfer did not affect

7    pay or benefits.   See Kessler v. Westchester County Dept. Of

8    Social Services, 461 F.3d 199, 207 (2d Cir. 2006); Miller v.

9    Praxair, Inc. 408 F. App’x 408, 410 (2d Cir. 2010).2

10       Finally, Betterson’s retaliation claim fails because

11   she cannot establish that her EEOC complaint was a but-for

12   cause of her termination.   Zann Kwan v. Andalex Grp. LLC,

13   737 F.3d 834, 845 (2d Cir. 2013).     HSBC has put forward

14   uncontroverted evidence that Betterson was terminated as

15   part of a reduction in force due to corporate

16   reorganization, and that Betterson’s performance ratings

17   were worse than the employee who remained in her position.

18   A reduction in force is a legitimate, nonretaliatory reason

19   for termination. See Delaney v. Bank of Am. Corp., 766 F.3d
2
           Betterson alleges that two supervisors in the first
     department she worked in (Product Management) discriminated
     against her on the basis of race, but she does not allege
     that her supervisor in the second department she worked in
     (Accounts Payable) did so. Because she transferred to
     Accounts Payable in 2008 and was terminated in 2010, she
     does not allege that she was terminated on the basis of
     racial discrimination.
                                   6
1    163, 168 (2d Cir. 2014).   Betterson has adduced no evidence

2    indicating that reason was pretextual; so no reasonable

3    juror could have found that Betterson would have kept her

4    job had she not filed the EEOC complaint.

5        Summary judgment was therefore appropriate.

6        For the foregoing reasons, and finding no merit in

7    Betterson’s other arguments, we hereby AFFIRM the judgment

8    of the district court.

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11                               FOR THE COURT:
12                               CATHERINE O’HAGAN WOLFE, CLERK
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