1 15-3262-cv Camarda v. Selover UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION A 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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 14 th day of December, two thousand sixteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, GERARD E. LYNCH, Circuit Judges

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-------------------------------------- -------------------------------- MARY ANN CAMARDA, Plaintiff-Appellant , v. No. 15-3262-cv CAPTAIN ELWOOD J. SELOVER, in his individual and professional capacity, LIEUTENANT MICHAEL SCHAEFER, in his individual and professional capacity, SERGEANT ROBERT CRITELLI, in his indi vidual and professional capacity, SERGEANT HERBERT MAI, in his individual and professional capacity, SERGEANT RALPH MILONE, in his in dividual and professional capacity, SERGEANT SMIRNOV, in his individual andprofessional capacity, SERGEANT CLARK BEINAIME, in his individual and professional capacity, CITY OF NEW YORK, RAYMO ND KELLY, POLICE COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, in his indi vidual and professional capacity, SERGEANT CHES TER OLEARY, in his individual and professional capacity, Defendants-Appellees

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---------------------------- ---------------------------- --------------2 FOR APPELLANT: Anthony M. Mahoney, Revellino & Byczek, Lake Success, New York. FOR APPELLEES: Richard Dearing, Of Counsel, and Jason Anton, Of Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York. Appeal from a judgment of the United States District Court for the Eastern District of New York (Rosly nn R. Mauskopf, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on September 16, 2015, is AFFIRMED. Plaintiff Mary Ann Camarda appeals fro m an award of summary judgment in favor of the City of New York and vari ous police officials on her claims of sex discrimination, hostile work environment, a nd retaliation under 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 196 4, as amended, 42 U.S.C. § 2000e et seq. ; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296; and the New York City Human Rights Law (“NYCHRL” ), N.Y.C. Admin. Code § 8-101 et seq. Specifically, Camarda claims that she suffe red sexual harassment and a hostile work environment while employed as a police officer in the New York C ity Police Department (“NYPD”) and that her supervisors retaliat ed against her when she filed a formal complaint about this treatment. 1

1 Camarda does not challenge the district court’s grant of summary judgment on her § 1983 Monell claim against the City. She also does not appeal the dismissal of: (1) her Title VII claims against the individual defend ants and (2) any claims against defendants Andrey Smirnov, Robert Critelli, and former NYPD Commissioner Raymond Kelly, against whom she failed to make any allegati ons in her complaint or present evidence. Thus, we do not address th ese claims further here. See Higazy v. Templeton , 505 F.3d3 We review an award of summary judgment de novo , construing the evidence in the light most favorable to the non-moving part y and drawing all reasonable inferences and resolving all ambiguities in that party’s favor. See Townsend v. Benjamin Enters., Inc. , 679 F.3d 41, 47 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the facts and procedural history of this case, wh ich we reference only as necessary to explain our decision to affirm for su bstantially the reasons stated by the district court in its September 16, 2015 de cision and order.
1. Sex Discrimination Under § 1983, T itle VII, the NYSHRL, and the NYCHRL Discrimination claims brought under § 1983, Title VII, and the NYSHRL are all governed by the burden-shif ting framework set forth in McDonnell Douglas Corp. v.
Green , 411 U.S. 792, 802–04 (1973). See Tolbert v. Smith , 790 F.3d 427, 434 (2d Cir. 2015); Back v. Hastings On Huds on Union Free Sch. Dist. , 365 F.3d 107, 123 (2d Cir. 2004). To carry her prima facie burden under this framework, Camarda must show that: (1) she is a member of a protected class, (2) she was qualified for her position, (3) she was subject to an adverse employment action, and (4) the circumstances of that adverse action give rise to an inference of disc rimination based on her membership in the protected class. See Joseph v. Leavitt , 465 F.3d 87, 90 (2d Cir. 2006). Upon such a showing, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. See Littlejohn v. City of New York , 795 F.3d 297, 307 (2d Cir. 2015). Then, “the final and ultimate burden is on the plaintiff to establish that the

161, 168 n.7 (2d Cir. 2007) (“An argument or an issue that is not raised in the appellate brief may be considered abandoned.”).4 defendant’s reason is in fact pret ext for unlawful discrimination.” Abrams v. Department of Pub. Safety , 764 F.3d 244, 251 (2d Cir. 2014). NYCHRL claims are analyzed se parately and independently. See Ya-Chen Chen v. City Univ. of N.Y. , 805 F.3d 59, 75 (2d Cir. 2015). To withstand summary judgment, “the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reason. The employer ma y present evidence of its legitimate, nondiscriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary ju dgment on this basis only if the record establishes as a matter of law that discrimination played no role in its actions.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 110 n.8 (2d Cir. 2013) (emphasis in original) (alteration and internal qu otation marks omitted). The parties here dispute only whether the circumstances of Camarda’s adverse employment actions give rise to an infere nce of discrimination under either of the applicable standards. See Salahuddin v. Goord , 467 F.3d 263, 27 3 (2d Cir. 2006); see also Patane v. Clark , 508 F.3d 106, 112 (2d Cir. 2007) (stating that “ sine qua non of a gender-based discriminatory action claim unde r Title VII is that the discrimination must be because of sex” (emphasis in original) (int ernal quotation marks omitted)). In faulting the district court’s determinati on that the record di d not admit such an inference, Camarda points firs t to the deposition testimony of Sergeants Robert Festa and William Hassler and Officer Martin King. Sergeant Festa testified that defendant Sergeant Milone “was looking to hurt” Camarda and would assign her to desk detail to preclude her from making the arrests her5 job required. See J.A. 478. Festa testified that he was transferred for refusing to “participate in getting Mary Ann Camard a with unnecessary discipline[].” See id. at 490–91. Officer King’s testim ony raises questions about whet her Milone was justified in disciplining Camarda for inappropriate court attir e. Like the district court, we conclude that even if this testimony indicates that Camarda was treated unfairly, it does not raise the necessary inference of a sex-based motivation. See McPherson v. New York City Dep’t of Educ. , 457 F.3d 211, 216 (2d Cir. 2006) (e xplaining that essential question in discrimination cases is motiv ation of employer, not reliab ility of allegations against plaintiff). The fact that Camarda was one of only three or four women assigned to her task force cannot, by itself, ra ise an inference that sex bias motivated the adverse actions, particularly where, as here, the record shows that defendant s subjected male officers to some of the same disciplinary actions for so me of the same actions for which Camarda was cited. See, e.g. , Shumway v. United Parcel Serv., Inc. , 118 F.3d 60, 64 (2d Cir. 1997) (concluding no inference of discriminatory intent when evidence showed that male supervisors were disciplined for same infr action in same way as female supervisor plaintiff, particularly in light of uncontroverted evidence that plaintiff clearly violated policy). Second, Camarda asserts that defendant Sergeant Mai’s comment, “[y]ou are a girl and you can’t type,” J.A. 325, made in disciplining her fo r not retyping a summons form, raises an inference of discriminatory moti ve. The argument fails because Camarda does not dispute that her actions—contesting a superi or’s retype order after preparing a flawed summons—warranted discipline. Nor did she adduce any evidence contradicting6 testimony that male officers were also assigned to an outdoor foot-post as discipline. In these circumstances, Mai’s stray remark about ex pected female typing skills, if it was, in fact, made, was insensitive, but it does not give rise to the inference of discriminatory motivation necessary to make out a prima facie case under § 1983, Title VII, or the NYSHRL, see Danzer v. Norden Sys., Inc. , 151 F.3d 50, 56 (2d Cir. 1998), or under the more liberal standard governing the NYCHRL, see Ya-Chen Chen v. City Univ. of N.Y. , 805 F.3d at 76 (concluding that plaintiff failed to carry prima facie burden under NYCHRL because supervisor s had legitimate reason for expressing nega tive opinions about plaintiff’s conduct and comments, which in context, did not ev ince discriminatory intent). Third, Camarda argues that discriminato ry motive can be in ferred from the fact that defendant Sergeant O’Leary “pointed at [h er], said ‘[n]o low cu t shirts’ and . . . was looking [at her].” J.A. 367; Appellees’ Br. at 26. The ar gument fails because O’Leary’s disciplinary action was based not only on Cama rda’s dress—a disputed matter that we view in Camarda’s favor on this appeal—but on her undisputed failure to have her memo book with her, a violation of Police Departme nt policy for which the record shows male officers were also routinely disciplined. See, e.g. , Shumway v. United Parcel Serv., Inc. , 118 F.3d at 64. Fourth, Camarda herself testified that taskforce members told her that her superiors did not “want [her] ar ound because [she] [is] a female .” J.A. 348, 655. Like the district court, we conclude that these statements are inadmissible hearsay and, thus, cannot be considered as ev idence of defendants’ discriminatory motivations. See Rubens7 v. Mason , 387 F.3d 183, 188 (2d Ci r. 2004) (clarifying that on summary judgment, “court may rely only on material that would be admissible at tria l”). Camarda neither explicitly acknowledges the district court’s conclusion as to this evidence, nor challenges it on appeal. In sum, because Camarda failed to ad duce sufficient evid ence to make out a prima facie case of employment discrimination under either the McDonnell-Douglas framework or the standard governing her NYCHRL cl aim, defendants were entitled to summary judgment on her claims of sex discrimination.
2. Hostile Work Environment and Retaliation Claims Where, as here, a counseled non-moving party submits “a partial response arguing that summary judgment should be denied as to some claims while not mentioning others,” that response “may be deemed an abandonment of the unmentioned claims.” Jackson v. Federal Express , 766 F.3d 189, 195 (2d Ci r. 2014). Even “[w]here abandonment by a counseled party is not e xplicit,” a court may infer abandonment “from the papers and circumstances viewed as a whole.” Id. at 196. The circumstances and papers here fairly supported an inference of Camarda’s abandonment of her hostile wo rk environment and retaliation claims. Specifically, after responding to each of defend ants’ proposed undisputed fact s, Camarda’s opposition brief argued only that summary judgment should be denied as to her discrimination claims.
See id. (upholding inference of abandonmen t where plaintiff fully responded to defendant’s proposed undisputed facts a nd opposition brief argue d against grant of summary judgment only as to one claim); accord Kovaco v. Rockb estos-Surprenant8 Cable Corp. , 834 F.3d 128, 144 (2d Ci r. 2016) (upholding infe rence of abandonment when party moved for summary judgment on all claims and non-moving party opposed motion with respect to all but one variety of claim). Further, Camarda’s appellate brief neither me ntions nor refutes the district court’s abandonment ruling, further signaling th at the claims were abandoned. See Higazy v. Templeton , 505 F.3d 161, 168 n.7 (2 d Cir. 2007) (“An argument or an issue that is not raised in the appellate brief ma y be considered abandoned.”); accord LaSacco v. City of Middletown , 71 F.3d 88, 92–93 (2d Ci r. 1995). Accordingly, we affirm that ruling and decline to consider plaintiff’s arguments rega rding the merits of he r retaliation and hostile work environment claims.
3. Conclusion We have considered all of Camarda’s rema ining arguments and conclude that they are without merit. Accordingl y, the award of summary judgme nt in favor of defendants is AFFIRMED.
FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court