19-2506-cv

Falu v. County of Orange

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.

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 2nd day of June, two thousand twenty.

PRESENT: ROBERT D. SACK,

RICHARD C. WESLEY,

DENNY CHIN,

Circuit Judges.

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GEISHA FALU,

Plaintiff-Appellant,

-v- 19-2506-cv

COUNTY OF ORANGE, KENNETH JONES, 

Individual Capacity, CARL DUBOIS, 

Individual Capacity, KENNETH DECKER, 

Individual Capacity,

Defendants-Appellees,
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STEVEN GROSS, Individual Capacity, 

Defendant. ∗

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FOR PLAINTIFF-APPELLANT: MICHAEL H. SUSSMAN, Sussman & 

Associates, Goshen, New York.

FOR DEFENDANTS-APPELLEES: SHARON K. WORTHY-SPIEGL, Deputy 

County Attorney, for Langdon C. Chapman, 

County Attorney, Orange County, Goshen, 

New York.

Appeal from the United States District Court for the Southern District of 

New York (Román, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the orders and judgment of the district court are

AFFIRMED.

In this employment discrimination case brought pursuant to 42 U.S.C. 

§ 1983, plaintiff-appellant Geisha Falu appeals the dismissal of her claims against 

defendants-appellees County of Orange (the "County"), Carl DuBois, Kenneth Decker,

and Kenneth Jones. In two orders, the district court first dismissed for failure to state a 

claim all claims against the County, DuBois, and Decker and the hostile environment 

claim against Jones, while allowing claims for discriminatory failure to promote to 

∗ The Clerk of the Court is respectfully directed to amend the official caption to conform 

to the above.
3

proceed against Jones and defendant Steven Gross, Commissioner of Human Resources 

for the County, and second, after the claims against Gross were voluntarily 

discontinued, granted summary judgment dismissing the remaining promotion claim 

against Jones. We assume the parties' familiarity with the underlying facts, procedural 

history, and issues on appeal.

BACKGROUND

The facts alleged in the amended complaint (the "Complaint") are 

assumed to be true, see Fisher v. SD Prot. Inc., 948 F.3d 593, 597 n.2 (2d Cir. 2020), and the 

evidence submitted in opposition to the summary judgment motion is construed in 

Falu's favor, see Topps Co. v. Cadbury Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir. 2008).

Falu is a female Corrections/Peace Officer who began working for the 

County in 2001. DuBois is the Sheriff of the County and final policymaker with respect

to officer promotions. Jones is the Undersheriff for the County responsible for the dayto-day operations of the County Jail. Decker is the Corrections Administrator, with 

some responsibility for promotion decisions. Gross, as Human Resources 

Commissioner, was responsible for establishing lists of officers eligible for promotion.

On June 7, 2011, Falu took a promotion exam and scored an 85. From the 

exam results, Gross created an eligibility list that was valid until June 6, 2015. 

Individuals on the list were ranked by exam score, and those with the top three scores 

were reachable for promotion; where there was a tie, all persons with the same score 
4

were equally reachable provided their score was among the top three scores. During 

the four-year period when the June 2011 eligibility list was valid, twenty men and no 

women were promoted to sergeant from the list. 

Jones served as acting Jail Administrator from December 2012 to 

November 2013, during which time he approved the promotion of two men, both of 

whom scored higher than Falu on the exam, and both of whom were reachable on the 

eligibility list. Based on her score, the earliest Falu was reachable for promotion was 

May 2014. Although Falu was interviewed for a promotion to Corrections Sergeant on 

July 23, 2014, she was not selected. 

Falu alleges that: women were passed over for promotions in favor of 

equally- or less-qualified men; DuBois, Decker, and Jones created a hostile work 

environment by giving preferential treatment to women who were in relationships with 

male officers as opposed to women who refused to engage in such relationships; and 

these practices amounted to a de facto policy of discrimination for which the County is 

liable. 

On June 30, 2017, the district court partially granted defendants' motion to 

dismiss, and noted that the Complaint asserted claims of municipal and individual 

liability based on two theories of gender discrimination: defendants failed to promote 

female officers to the rank of sergeant and defendants created a hostile work 

environment for female officers who wished to advance. The district court concluded, 
5

with respect to both the promotion and hostile environment claims, that the Complaint 

failed to state a claim for municipal liability against the County and that it failed to 

allege the personal involvement of DuBois and Decker. 1

 The district court also 

concluded that the Complaint failed to state a hostile work environment claim as to any 

defendant. It denied the motion to dismiss the promotion claim against Gross and 

Jones. After Falu voluntarily dismissed her claim against Gross, on July 30, 2019, the 

district court granted summary judgment dismissing the sole remaining claim -- the 

promotion claim against Jones. This appeal followed.

DISCUSSION

I. Motion to Dismiss

We review de novo the district court's grant of a motion to dismiss, 

accepting as true all facts alleged in the complaint and drawing all reasonable 

inferences in the moving party's favor. See Yamashita v. Scholastic Inc., 936 F.3d 98, 103-

04 (2d Cir. 2019). To survive a motion to dismiss, the plaintiff must allege facts 

sufficient "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). On appeal, the principal issues with respect to the 

district court's granting of the motion to dismiss are its dismissal of the claims against 

1 Although the district court dismissed the claims against the County, Decker, and DuBois 

without prejudice, Falu never sought to replead the claims against them. 
6

the County; the claims against Decker and DuBois; and the hostile work environment 

claim against Jones. 

A. Applicable Law

A public employee who alleges sex discrimination in violation of the 

Fourteenth Amendment may bring a claim under 42 U.S.C. § 1983. See Naumovski v. 

Norris, 934 F.3d 200, 212 (2d Cir. 2019). "A municipality is liable under section 1983 only 

if the deprivation of the plaintiff's rights under federal law is caused by governmental 

custom, policy, or usage of the municipality." Matusick v. Erie Cty. Water Auth., 757 F.3d 

31, 62 (2d Cir. 2014). While municipal liability may be established by demonstrating a 

formal, officially adopted policy, liability may also attach through the decision of a final 

policymaker or where a widespread practice is so permanent and well-settled as to 

constitute a policy with force of law. See Monell v. Dep't of Soc. Servs. of City of New York, 

436 U.S. 658, 691, 694 (1978); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 

(1986); Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870-71 (2d Cir. 1992). Isolated 

acts of non-policymaking individuals may form the basis of liability if "they were done 

pursuant to municipal policy, or were sufficiently widespread and persistent to support 

a finding that they constituted a custom, policy, or usage" of which supervisors knew or 

should have known. Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012).

A prerequisite for claims under § 1983 against individual supervisors is 

the personal involvement of the individual in the alleged constitutional deprivation. 
7

See Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019). A supervisory defendant is 

personally involved where he participated directly in the alleged violation, failed to 

remedy the wrong after being informed of it, created the policy under which the 

violation took place, or allowed an extant policy to persist or was grossly negligent in 

supervising those who committed the acts, or demonstrated deliberate indifference by 

failing to act on reports that violations were occurring. See id at 36-37. 

Hostile work environment claims brought pursuant to § 1983 are analyzed 

under the standards applicable to claims brought pursuant to Title VII of the Civil 

Rights Act of 1964 ("Title VII"), Naumovski, 934 F.3d at 212, except that § 1983 requires 

that the alleged violation be committed by a person acting under color of state law, see 

Jones v. County of Suffolk, 936 F.3d 108, 114 (2d Cir. 2019). To state a hostile work 

environment claim in violation of Title VII, a plaintiff must plead facts that would tend 

to show the conduct "(1) is objectively severe or pervasive -- that is, . . . creates an 

environment that a reasonable person would find hostile or abusive; (2) creates an 

environment that the plaintiff subjectively perceives as hostile or abusive; and (3) 

creates such an environment because of the plaintiff's sex." Patane v. Clark, 508 F.3d 106, 

113 (2d Cir. 2007) (internal quotation marks omitted). In determining whether a hostile 

work environment has been established, courts consider the totality of the 

circumstances, including the nature, frequency, and severity of the conduct as well as 

whether the conduct interferes unreasonably with an employee's work performance. 
8

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Episodic incidents are insufficient 

to establish a hostile work environment; rather, the incidents "must be sufficiently 

continuous and concerted." Bentley v. AutoZoners, LLC, 935 F.3d 76, 90 (2d Cir. 2019). 

B. Application

The district court did not err in granting the motion to dismiss the claims 

against the County, the claims against Decker and DuBois, and the hostile work 

environment claim against Jones.

First, as to the County, the Complaint does not allege an official or formal 

policy of preferring men over women in promotions or creating a work environment 

hostile to women. See Monell, 436 U.S. at 694. To plead a municipal liability claim, the 

Complaint must plausibly allege that the adverse employment action was either the 

result of a decision of a final policymaker or of a practice so widespread and permanent 

as to constitute a policy with the force of law. Id. at 691, 694; Sorlucco, 971 F.2d at 870-71. 

Here, the Complaint relies on the decisions of purported final policymakers, as it alleges

that: "the actions of defendants DUBOIS, Undersheriff JONES and their subordinate 

personnel who make recommendations concerning promotions collectively represent 

the policy and practice of the COUNTY within the Sheriff's Office." J. App'x at 13. The 

Complaint relies primarily on conclusory assertions. The Complaint does cite the 

County's use of the eligibility list, but, as the district court noted, Falu does not 

plausibly allege how the use of the list -- which ranked candidates based on their 
9

objective test scores -- discriminated against women. While the statistics -- twenty men 

and no women promoted from the list -- are "troublesome," S. App'x at 9, the Complaint 

fails to identify any male officer who was promoted over Falu who was less qualified 

than her, and it does not plausibly allege an underlying policy of discrimination against 

women in promotions in the Sheriff's office. As the amended complaint fails to plead 

sufficient facts to support municipal liability, the district court correctly dismissed the 

County from the suit.

 Second, as to the individual claims against DuBois and Decker, the 

Complaint fails to sufficiently allege their personal involvement in the alleged

discriminatory practices. The Complaint alleges only that DuBois was the "final policymaker" with regard to promotions, J. App'x at 13, Decker was delegated responsibility 

for promotions, and they made promotions from the eligibility list. It does not allege 

that either was personally involved in any promotion decision affecting Falu. See 

Brandon, 938 F.3d at 36-37. Accordingly, the district court did not err in dismissing the 

claims against Decker and DuBois.2 

Third, as to the hostile work environment claim against Jones, we agree 

with the district court that the Complaint fails to allege "any specific examples as to how 

2 Falu argues on appeal that the district court misconstrued its own decision and did not 

in fact dismiss her failure to promote claim against the County, DuBois, and Decker. This 

argument is unpersuasive and rests on a misreading of the district court's decision. Indeed, in 

the conclusion to the motion to dismiss, the district court directed the Clerk of Court "to 

terminate as parties the County, Carl DuBois, and Kenneth Decker." S. App'x at 18. 
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Falu's work environment was hostile." S. App'x at 17. Instead, it alleges that on five 

occasions women were hired or promoted because they were in relationships with male 

supervisors. While these allegations may arguably give rise to a quid pro quo claim, the 

allegations are insufficient to plausibly state a hostile work environment claim. The 

Complaint does not allege severe or pervasive offensive conduct sufficient to create a 

hostile work environment.3 

II. Motion for Summary Judgment

"We review de novo the district court's grant of summary judgment, 

construing the evidence in the light most favorable to the non-moving party and 

drawing all reasonable inferences in [its] favor." Mihalik v. Credit Agricole Cheuvreux N. 

Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). A movant is entitled to summary judgment if 

"there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." Fed. R. Civ. P. 56(a). 

A. Applicable Law

To establish a prima facie case of discrimination, plaintiff must demonstrate 

that: (1) she is a member of a protected class; (2) she was qualified for the position she

held; (3) she was subjected to an adverse employment action; and (4) the adverse action 

occurred under circumstances giving rise to an inference of discrimination. See Robinson 

3 This analysis applies to the hostile work environment claims against the County, Decker, 

and DuBois as well.
11

v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015). If the plaintiff establishes a 

prima facie case, "the burden shifts to the employer to give a legitimate, nondiscriminatory reason for its actions." Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d 

Cir. 2014). Finally, "[i]f the employer articulates such a reason for its actions, the burden 

shifts back to the plaintiff to prove that the employer's reason was in fact pretext for 

discrimination." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015)

(internal quotation marks omitted). To defeat summary judgment, "the [employee's] 

admissible evidence must show circumstances that would be sufficient to permit a 

rational finder of fact to infer that the [employer's] employment decision was more 

likely than not based in whole or in part on discrimination." Kirkland, 760 F.3d at 225

(alterations in original).

B. Application

Falu argues that the district court erroneously granted Jones's motion for 

summary judgment on her failure to promote claim. We disagree. Construing the 

evidence in Falu's favor, the earliest she was reachable for promotion was May 2014. 

Jones stepped down as acting Jail Administrator in November 2013. Thus, by the time 

Falu was reachable for promotion, Jones was no longer involved in the promotion 

process. Nor is there any suggestion in the record that Falu ever complained to him 

about the promotion process such that he could have done something to remedy the 

alleged discrimination. See Brandon, 938 F.3d at 36-37. Moreover, when Jones served as 
12

acting Jail Administrator, the two persons he approved for promotions both had higher 

scores than Falu and were immediately reachable for promotion pursuant to the 

eligibility list. Accordingly, we conclude that the district court did not err when it 

granted Jones's motion for summary judgment.

* * *

We have considered Falu's remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk