Ross-Caleb v. City of Rochester

Filing

OPINION, affirmed as to retaliation and state law claims, reversed as to discrimination claims and remanded, by JON, RR, GEL, FILED.[848679] [12-187]

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12-187-cv
Jewanta Desardouin v. City of Rochester
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
Heard: November 6, 2012

Decided: February 19, 2013

Docket No. 12-187-cv
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JEWANTA DESARDOUIN,

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District Court for the Western District of New York (Michael A.

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Telesca, District Judge), dismissing, on motion for summary judgment,

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a suit alleging discrimination and retaliation claims based on a

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hostile

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discrimination laws.

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Plaintiff-Appellant,
v.
CITY OF ROCHESTER, VINCENT McINTYRE, as Aider and Abettor,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, RAGGI, and LYNCH, Circuit Judges.
Appeal from the December 16, 2011, judgment of the United States

work

environment

in

violation

of

federal

and

state

Affirmed as to retaliation and state law claims, reversed as to
discrimination claims, and remanded.
Christina A. Agola, Rochester, N.Y., for
Plaintiff-Appellant.
Igor
Shukoff,
Rochester,
Defendants-Appellees.

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N.Y.,

for

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JON O. NEWMAN, Circuit Judge:

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This appeal concerns the recurring issue of what circumstances

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suffice to warrant a trial of a gender discrimination claim based on

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an allegation of a hostile work environment.

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Jewanta Desardouin appeals from the December 16, 2011, judgment of the

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United States District Court for the Western District of New York,

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Michael

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Defendants-Appellees Vincent McIntyre and the City of Rochester (the

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“City”).

Telesca,

District

Judge,

granting

Plaintiff-Appellant

summary

judgment

to

Desardouin and others brought claims of a hostile work

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environment based on gender under the Civil Rights Act of 1964, 42

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U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1983, and the New York State

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Human Rights Law, N.Y. Exec. Law § 290, et. seq. (“NYSHRL”), as well

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as claims of retaliation under Title VII and the NYSHRL.

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that Desardouin’s claim of a hostile work environment suffices to

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warrant a trial and therefore remand that portion of her case to the

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District Court.

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dismissal of the claims of the other plaintiffs.

We conclude

In a summary order filed today, we affirm the

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Background

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The following factual summary, drawn primarily from Desardouin’s

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affidavit, is presented, as required for the purposes of a summary

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judgment ruling, in the light most favorable to the non-moving party.

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See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006).

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Desardouin began her employment with the City as a supervisory

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security officer in February 1988. She was the only female supervisor

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in

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Department.

the

Security

Operations

department

of

the

Rochester

Desardouin reported to McIntyre, her supervisor.
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Police

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She alleged that, starting in May 2007, McIntyre made “sexual

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advances” toward her and one of her co-plaintiffs, Theresa Smith.

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a weekly basis, McIntyre told Desardouin that her husband was “not

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taking

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investigation by the Professional Standards Section (“PSS”) of the

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Rochester Police Department, she acknowledged that McIntyre’s comments

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stopped in June or July.

care

of

[her]

in

bed.”

In

a

recorded

statement

at

On

an

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After witnessing McIntyre routinely harass her co-plaintiffs, she

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arranged a meeting with Richard Vega, the Department’s Officer of

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Integrity, and reported McIntyre’s harassing conduct.

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there was nothing he could do.

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PSS about McIntyre’s conduct.

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complaint with the New York State Division of Human Rights.

Vega told her

In January 2008, she complained to the
On January 15, 2008, she filed a

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In October or November of 2008, she submitted to PSS a recording

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of McIntyre and Eric Cotton, another Security Supervisor, allegedly

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discussing tampering with her computer and changing her schedule.

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Desardouin filed her federal complaint on December 4, 2008.

She

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alleged that retaliation “continued” thereafter.

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alleged that her computer was tampered with “whereby someone deleted

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the incident reports on [her] system;” she was assigned additional

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administrative tasks such as payroll reporting, preparing incident

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reports, and data input, tasks that were not given to the two male

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supervisors; and McIntyre changed her schedule on an “ad hoc” basis.

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After

Desardouin

admitted

that

she

had

Specifically, she

engaged

in

the

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unauthorized recording of employees and that she initially had lied

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about doing so, she was discharged in February 2009.
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Discussion
I. Hostile Work Environment

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Title VII prohibits an employer from discriminating on the basis

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of race, color, religion, sex, or national origin.

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2(a)(1).

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show that a workplace is “so severely permeated with discriminatory

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intimidation, ridicule, and insult that the terms and conditions of

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her employment were thereby altered.”

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365, 373-74 (2d Cir. 2002) (citations omitted).

42 U.S.C. § 2000e-

A hostile work environment claim requires a plaintiff to

Alfano v. Costello, 294 F.3d
The plaintiff must

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also show “either that a single incident was extraordinarily severe,

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or

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concerted to have altered the conditions of her working environment.”

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Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal

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quotation marks omitted).

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incidents, they must be “more than episodic; they must be sufficiently

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continuous and concerted in order to be deemed pervasive.”

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Ethan

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quotation marks omitted).

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been

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discriminatory

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threatening or humiliating, or a mere offensive utterance; and whether

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it unreasonably interferes with an employee’s work performance.”

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Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

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plaintiff must also subjectively perceive the environment to be

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abusive.

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establish a sex-based hostile work environment under Title VII, a

that

a

series

Allen,

met,

of

Inc.,

incidents

115

relevant

Id. at 22-23.

sufficiently

continuous

and

If a plaintiff relies on a series of

F.3d

143,

149

(2d

Cir.

1997)

Perry v.
(internal

In determining whether the threshold has

factors

conduct;

were

its

include
severity;

“the
whether

frequency
it

is

of

the

physically

The

Finally, “it is ‘axiomatic’ that in order to

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plaintiff must demonstrate that the conduct occurred because of her

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sex.”

Alfano, 294 F.3d at 374 (citation omitted).

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McIntyre’s comments, though not presenting an obvious case of

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hostile work environment, are sufficiently beyond the line drawn in

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Harris to warrant a trial.

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over an interval that lasted at least two and perhaps three months.

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Though not threatening, they were more than merely offensive.

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male to say to a female employee under his supervision that her

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husband was “not taking care of [her] in bed” is the sort of remark

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that can readily be found to be a solicitation for sexual relations

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coupled with a claim of sexual prowess and can just as readily be

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found to have been perceived as such by the female employee.

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weekly repetition of such a remark over several weeks only served to

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reenforce its offensive meaning and to make sexual intimidation,

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ridicule, and insult a pervasive part of Desardouin’s workplace,

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effectively changing the terms and conditions of her employment. See

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Alfano, 294 F.3d at 373.

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she found McIntyre “threatening,” and that he made “sexual advances”

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toward

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solicitation of sexual relations in a vulgar and humiliating manner

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suffice to warrant a trial.

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II. Section 1983 and NYSHRL Claims

her

and

another

The comments persisted on a weekly basis

For a

The

Indeed, Desardouin’s affidavit stated that

employee.

The

allegations

of

repeated

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Desardouin’s claim of gender discrimination because of hostile

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work environment also suffices under the Equal Protection Clause of

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the Fourteenth Amendment.

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NYSHRL claim was barred on the basis of election of remedies, in view

The District Court properly ruled that her

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of N.Y. Exec. Law § 297(9), which, with certain exceptions not

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applicable here, precludes resort to courts after claims have been

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filed with a local commission on human rights.

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III. Retaliation Claims

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The District Court properly determined that Desardouin’s claims

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of retaliation failed.

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defeat a claim that it took an adverse employment action against an

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employee by showing that it acted for a legitimate, non-discriminatory

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reason.

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(1973).

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Desardouin her secret recordings of conversations of police officials.

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As the District Court pointed out, making these recordings was a

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felony and a violation of departmental policy.

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response to the proffer of this undisputed misconduct was that four

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months had elapsed between her actions and her termination.

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her misconduct reasonably required some time to investigate, the four-

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month interval did not impair the legitimacy of the Defendants’

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proffered reason for the termination.

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properly dismissed.

As with all Title VII claims, an employer can

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
The

Defendants

proffered

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as

a

reason

for

terminating

Desardouin’s only

Because

The retaliation claims were

Conclusion

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The judgment of the District Court is reversed with respect to

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Jewanta Desardouin’s Title VII and section 1983 claims of gender

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discrimination because of hostile work environment, and those claims

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are remanded for trial.

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state law claims is affirmed.

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Dismissal of her retaliation claims and her

Affirmed in part, reversed in part, and remanded.
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