Desardouin v. City of Rochester, No. 12-187 (2d Cir. 2013)
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Plaintiff and others brought claims of hostile work environment based on gender under the Civil Rights Act of 1964, 42 U.S.C. 2000e; 42 U.S.C. 1983; and the New York State Human Rights Law, N.Y. Exec. Law 290 et seq. (NYSHRL), as well as claims of retaliation under Title VII and the NYSHRL. Plaintiff subsequently appealed from the district court's grant of summary judgment in favor of the City. The court concluded that plaintiff's claim of a hostile work environment involving allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner sufficed to warrant a trial; plaintiff's claim of gender discrimination because of hostile work environment also sufficed under the Equal Protection Clause of the Fourteenth Amendment; but the district court properly determined that plaintiff's claims of retaliation failed. Accordingly, the court reversed in part, affirmed in part, and remanded. In a summary order, the court affirmed the dismissal of the claims of the other plaintiffs.
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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 - - - - - - - - - - - - - - - - - - - - - - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JEWANTA DESARDOUIN, 15 District Court for the Western District of New York (Michael A. 16 Telesca, District Judge), dismissing, on motion for summary judgment, 17 a suit alleging discrimination and retaliation claims based on a 18 hostile 19 discrimination laws. 20 21 22 23 24 25 26 27 28 29 30 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. 1 N.Y., for 1 JON O. NEWMAN, Circuit Judge: 2 This appeal concerns the recurring issue of what circumstances 3 suffice to warrant a trial of a gender discrimination claim based on 4 an allegation of a hostile work environment. 5 Jewanta Desardouin appeals from the December 16, 2011, judgment of the 6 United States District Court for the Western District of New York, 7 Michael 8 Defendants-Appellees Vincent McIntyre and the City of Rochester (the 9 City ). Telesca, District Judge, granting Plaintiff-Appellant summary judgment to Desardouin and others brought claims of a hostile work 10 environment based on gender under the Civil Rights Act of 1964, 42 11 U.S.C. § 2000e ( Title VII ), 42 U.S.C. § 1983, and the New York State 12 Human Rights Law, N.Y. Exec. Law § 290, et. seq. ( NYSHRL ), as well 13 as claims of retaliation under Title VII and the NYSHRL. 14 that Desardouin s claim of a hostile work environment suffices to 15 warrant a trial and therefore remand that portion of her case to the 16 District Court. 17 dismissal of the claims of the other plaintiffs. We conclude In a summary order filed today, we affirm the 18 Background 19 The following factual summary, drawn primarily from Desardouin s 20 affidavit, is presented, as required for the purposes of a summary 21 judgment ruling, in the light most favorable to the non-moving party. 22 See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). 23 Desardouin began her employment with the City as a supervisory 24 security officer in February 1988. She was the only female supervisor 25 in 26 Department. the Security Operations department of the Rochester Desardouin reported to McIntyre, her supervisor. -2- Police 1 She alleged that, starting in May 2007, McIntyre made sexual 2 advances toward her and one of her co-plaintiffs, Theresa Smith. 3 a weekly basis, McIntyre told Desardouin that her husband was not 4 taking 5 investigation by the Professional Standards Section ( PSS ) of the 6 Rochester Police Department, she acknowledged that McIntyre s comments 7 stopped in June or July. care of [her] in bed. In a recorded statement at On an 8 After witnessing McIntyre routinely harass her co-plaintiffs, she 9 arranged a meeting with Richard Vega, the Department s Officer of 10 Integrity, and reported McIntyre s harassing conduct. 11 there was nothing he could do. 12 PSS about McIntyre s conduct. 13 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 14 In October or November of 2008, she submitted to PSS a recording 15 of McIntyre and Eric Cotton, another Security Supervisor, allegedly 16 discussing tampering with her computer and changing her schedule. 17 Desardouin filed her federal complaint on December 4, 2008. She 18 alleged that retaliation continued thereafter. 19 alleged that her computer was tampered with whereby someone deleted 20 the incident reports on [her] system; she was assigned additional 21 administrative tasks such as payroll reporting, preparing incident 22 reports, and data input, tasks that were not given to the two male 23 supervisors; and McIntyre changed her schedule on an ad hoc basis. 24 After Desardouin admitted that she had Specifically, she engaged in the 25 unauthorized recording of employees and that she initially had lied 26 about doing so, she was discharged in February 2009. -3- 1 2 Discussion I. Hostile Work Environment 3 Title VII prohibits an employer from discriminating on the basis 4 of race, color, religion, sex, or national origin. 5 2(a)(1). 6 show that a workplace is so severely permeated with discriminatory 7 intimidation, ridicule, and insult that the terms and conditions of 8 her employment were thereby altered. 9 365, 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 10 also show either that a single incident was extraordinarily severe, 11 or 12 concerted to have altered the conditions of her working environment. 13 Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal 14 quotation marks omitted). 15 incidents, they must be more than episodic; they must be sufficiently 16 continuous and concerted in order to be deemed pervasive. 17 Ethan 18 quotation marks omitted). 19 been 20 discriminatory 21 threatening or humiliating, or a mere offensive utterance; and whether 22 it unreasonably interferes with an employee s work performance. 23 Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). 24 plaintiff must also subjectively perceive the environment to be 25 abusive. 26 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 -4- 1 plaintiff must demonstrate that the conduct occurred because of her 2 sex. Alfano, 294 F.3d at 374 (citation omitted). 3 McIntyre s comments, though not presenting an obvious case of 4 hostile work environment, are sufficiently beyond the line drawn in 5 Harris to warrant a trial. 6 over an interval that lasted at least two and perhaps three months. 7 Though not threatening, they were more than merely offensive. 8 male to say to a female employee under his supervision that her 9 husband was not taking care of [her] in bed is the sort of remark 10 that can readily be found to be a solicitation for sexual relations 11 coupled with a claim of sexual prowess and can just as readily be 12 found to have been perceived as such by the female employee. 13 weekly repetition of such a remark over several weeks only served to 14 reenforce its offensive meaning and to make sexual intimidation, 15 ridicule, and insult a pervasive part of Desardouin s workplace, 16 effectively changing the terms and conditions of her employment. See 17 Alfano, 294 F.3d at 373. 18 she found McIntyre threatening, and that he made sexual advances 19 toward 20 solicitation of sexual relations in a vulgar and humiliating manner 21 suffice to warrant a trial. 22 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 23 Desardouin s claim of gender discrimination because of hostile 24 work environment also suffices under the Equal Protection Clause of 25 the Fourteenth Amendment. 26 NYSHRL claim was barred on the basis of election of remedies, in view The District Court properly ruled that her -5- 1 of N.Y. Exec. Law § 297(9), which, with certain exceptions not 2 applicable here, precludes resort to courts after claims have been 3 filed with a local commission on human rights. 4 III. Retaliation Claims 5 The District Court properly determined that Desardouin s claims 6 of retaliation failed. 7 defeat a claim that it took an adverse employment action against an 8 employee by showing that it acted for a legitimate, non-discriminatory 9 reason. 10 (1973). 11 Desardouin her secret recordings of conversations of police officials. 12 As the District Court pointed out, making these recordings was a 13 felony and a violation of departmental policy. 14 response to the proffer of this undisputed misconduct was that four 15 months had elapsed between her actions and her termination. 16 her misconduct reasonably required some time to investigate, the four- 17 month interval did not impair the legitimacy of the Defendants 18 proffered reason for the termination. 19 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 20 as a reason for terminating Desardouin s only Because The retaliation claims were Conclusion 21 The judgment of the District Court is reversed with respect to 22 Jewanta Desardouin s Title VII and section 1983 claims of gender 23 discrimination because of hostile work environment, and those claims 24 are remanded for trial. 25 state law claims is affirmed. 26 Dismissal of her retaliation claims and her Affirmed in part, reversed in part, and remanded. -6-
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