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- cv Falu v. County of Orange UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WI TH 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 2 nd day of June , two thousand twenty
. PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, DENNY CHIN , Circuit Judge s .

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x GEISHA FALU , Plaintiff

- Appellant ,

- v - 1 9

- 2 506

- cv COUNTY OF ORANGE, KENNETH JONES, Individual Capacity , CARL DUBOIS, Individual Capacity, KENNETH DECKER, Individual Capacity, Defendant s - Appellee s,2 STEVEN GROSS, Individual Capacity, Defendant. ∗

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x FOR PLAINTIFF

- APPELLANT : MICHAEL H. SUSSMAN , Sussman & Associates, Goshen , New York

. FOR DEFENDANT S

- APPELLEE S : 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 ( Rom á n , 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, p laintiff

- appellant Geisha Falu appeals t he dismiss al 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 G ross were voluntarily discontinued, granted summary judgment dismissing the remaining promotion claim against Jones. W e assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
BACKGROUND The facts alleged in th e 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 re spect to officer promotions. Jones is the Undersheriff for the County responsible for the day

to

- day operations of the County Jail. Decker is the Corrections Administrator, with
some resp onsibility 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 e ligibility list that was valid until June 6, 2015.
Individuals on the l ist were ranked by e xam score , and those with the top three scores were reachable for promotion; where there was a tie, all persons with th e same score4 were equally reachable provided th eir 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 th e 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
th ese practice s amounted to a de facto policy of discrimination f or which the County is
liable. On June 30, 201 7 , the district court partially granted defendant s ' motion to
dismiss , and noted that the C omplaint asserted claims of municipal and individual liability based on two theories of gender discrimination : defendants fail ed 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 C o mplaint 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 Co mplaint failed to state a hostile work environment claim as to any defendant. It denied the motion to dismiss the promot ion 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 promot ion claim against Jones

. T his 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, t he principal issues with respec t 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 a gainst 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 l iability 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 no n - 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 the y constituted a custom, policy, or usage" of which supervisors knew or

s hould 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 w ere 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, e xcept that § 1983 requires that the alleged violation be committed by a person acting under color of state law , s ee 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 plaint iff 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, c ourts 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 in sufficient
to establish a hostile work environment ; rather, the incidents "mu st be sufficiently
continuous and concerted." Bentley v. AutoZoners, LLC , 935 F.3d 76, 90 (2d Cir. 2019).
B. Application
T he district court did not err in granting the motion to dismiss the claims against the County , the claims against Decker and DuBo is , and the hostile work environment claim against Jones

. First, as to the County, the Co mplaint d oes 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. T o plead a municipal liability claim , the
C omplaint 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, t he C omplaint rel ies on the decisions of purported final policymakers, as it allege s 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. T he
C omplaint relies primarily on conclusory assertions. The C omplaint 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 their9 objective test scores

-- discri minated against women. While the statistics

-- twenty men and no women promoted from the list

-- are "troublesome," S

. App'x at 9, the C omplaint 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. A s the amended complaint fails to plead sufficient facts to support municipal liability, the district court correctly dismissed the County from t he suit. Second, as to the individual claims against DuBois and Decker , the
C omplaint fails to sufficiently allege their personal involvement in the alleged discriminatory practice s . The Complaint alleges only that DuBois was the "final policy

maker" 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 personal ly involve d in any promotion decisi on 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 t hat the Complaint fail s 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 mot ion 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 18.10 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 i n 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 p arty 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 clas s ; (2) she was qualified for the pos ition s he 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). I f the plaintiff esta blishes a prima facie case, "the burden shifts to the employer to give a legitimate, non

discriminatory 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 j udgment, " 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 as12 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 Wol fe, Clerk