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

- - - - - - - - - - - - - - - - - - - - - - JEWANTA DESARDOUIN, 1 2 Plaintiff-Appellant, 3 4 v. 5 6 CITY OF ROCHESTER, VINCENT McINTYRE, as Aider and Abettor, 7 8 Defendants-Appellees. 9

- - - - - - - - - - - - - - - - - - - - - - 10 11 Before: NEWMAN, RAGGI, and LYNCH, Circuit Judges

. 12 13 Appeal from the December 16, 2011, judgment of the United States 14 District Court for the Western District of New York (Michael A. 15 Telesca, District Judge), dismissing, on motion for summary judgment, 16 a suit alleging discrimination and retaliation claims based on a 17 hostile work environment in violation of federal and state 18 discrimination laws. 19 Affirmed as to retaliation and state law claims, reversed as to 20 discrimination claims, and remanded. 21 Christina A. Agola, Rochester, N.Y., for 22 Plaintiff-Appellant. 23 24 Igor Shukoff, Rochester, N.Y., for 25 Defendants-Appellees. 26 27 28 29 30

1JON O. NEWMAN, Circuit Judge: 1 This appeal concerns the recurring issue of what circumstances 2 suffice to warrant a trial of a gender discrimination claim based on 3 an allegation of a hostile work environment. Plaintiff-Appellant 4 Jewanta Desardouin appeals from the December 16, 2011, judgment of the 5 United States District Court for the Western District of New York, 6 Michael Telesca, District Judge, granting summary judgment to 7 Defendants-Appellees Vincent McIntyre and the City of Rochester (the 8 “City”). Desardouin and others brought claims of a hostile work 9 environment based on gender under the Civil Rights Act of 1964, 42 10 U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1983, and the New York State 11 Human Rights Law, N.Y. Exec. Law § 290, et. seq. (“NYSHRL”), as well 12 as claims of retaliation under Title VII and the NYSHRL. We conclude 13 that Desardouin’s claim of a hostile work environment suffices to 14 warrant a trial and therefore remand that portion of her case to the 15 District Court. In a summary order filed today, we affirm the 16 dismissal of the claims of the other plaintiffs. 17 Background 18 The following factual summary, drawn primarily from Desardouin’s 19 affidavit, is presented, as required for the purposes of a summary 20 judgment ruling, in the light most favorable to the non-moving party. 21
SeeJaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). 22 Desardouin began her employment with the City as a supervisory 23 security officer in February 1988. She was the only female supervisor 24 in the Security Operations department of the Rochester Police 25 Department. Desardouin reported to McIntyre, her supervisor. 26 -2-She alleged that, starting in May 2007, McIntyre made “sexual 1 advances” toward her and one of her co-plaintiffs, Theresa Smith. On 2 a weekly basis, McIntyre told Desardouin that her husband was “not 3 taking care of [her] in bed.” In a recorded statement at an 4 investigation by the Professional Standards Section (“PSS”) of the 5 Rochester Police Department, she acknowledged that McIntyre’s comments 6 stopped in June or July. 7 After witnessing McIntyre routinely harass her co-plaintiffs, she 8 arranged a meeting with Richard Vega, the Department’s Officer of 9 Integrity, and reported McIntyre’s harassing conduct. Vega told her 10 there was nothing he could do. In January 2008, she complained to the 11 PSS about McIntyre’s conduct. On January 15, 2008, she filed a 12 complaint with the New York State Division of Human Rights. 13 In October or November of 2008, she submitted to PSS a recording 14 of McIntyre and Eric Cotton, another Security Supervisor, allegedly 15 discussing tampering with her computer and changing her schedule. 16 Desardouin filed her federal complaint on December 4, 2008. She 17 alleged that retaliation “continued” thereafter. Specifically, she 18 alleged that her computer was tampered with “whereby someone deleted 19 the incident reports on [her] system;” she was assigned additional 20 administrative tasks such as payroll reporting, preparing incident 21 reports, and data input, tasks that were not given to the two male 22 supervisors; and McIntyre changed her schedule on an “ad hoc” basis. 23 After Desardouin admitted that she had engaged in the 24 unauthorized recording of employees and that she initially had lied 25 about doing so, she was discharged in February 2009. 26 -3-Discussion 1 I. Hostile Work Environment 2 Title VII prohibits an employer from discriminating on the basis 3 of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e4 2(a)(1). A hostile work environment claim requires a plaintiff to 5 show that a workplace is “so severely permeated with discriminatory 6 intimidation, ridicule, and insult that the terms and conditions of 7 her employment were thereby altered.” Alfano v. Costello, 294 F.3d 8 365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must 9 also show “either that a single incident was extraordinarily severe, 10 or that a series of incidents were sufficiently continuous and 11 concerted to have altered the conditions of her working environment.” 12 Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal 13 quotation marks omitted). If a plaintiff relies on a series of 14 incidents, they must be “more than episodic; they must be sufficiently 15 continuous and concerted in order to be deemed pervasive.” Perry v. 16 Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal 17 quotation marks omitted). In determining whether the threshold has 18 been met, relevant factors include “the frequency of the 19 discriminatory conduct; its severity;whether it is physically 20 threatening or humiliating, or a mere offensive utterance; and whether 21 it unreasonably interferes with an employee’s work performance.” 22 Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993). The 23 plaintiff must also subjectively perceive the environment to be 24 abusive. Id.at 22-23. Finally, “it is ‘axiomatic’ that in order to 25 establish a sex-based hostile work environment under Title VII, a 26 -4-plaintiff must demonstrate that the conduct occurred because of her 1 sex.” Alfano, 294 F.3d at 374 (citation omitted). 2 McIntyre’s comments, though not presenting an obvious case of 3 hostile work environment, are sufficiently beyond the line drawn in 4 Harristo warrant a trial. The comments persisted on a weekly basis 5 over an interval that lasted at least two and perhaps three months. 6 Though not threatening, they were more than merely offensive. For a 7 male to say to a female employee under his supervision that her 8 husband was “not taking care of [her] in bed” is the sort of remark 9 that can readily befound to be a solicitation for sexual relations 10 coupled with a claim of sexual prowess and can just as readily be 11 found to have been perceived as such by the female employee. The 12 weekly repetition of such a remark over several weeks only served to 13 reenforce its offensive meaning and to make sexual intimidation, 14 ridicule, and insult a pervasive part of Desardouin’s workplace, 15 effectively changing the terms and conditions of her employment. See 16 Alfano, 294 F.3d at 373. Indeed, Desardouin’s affidavit stated that 17 she found McIntyre “threatening,” and that he made “sexual advances” 18 toward her and another employee. The allegations of repeated 19 solicitation of sexual relations in a vulgar and humiliating manner 20 suffice to warrant a trial. 21 II. Section 1983 and NYSHRL Claims 22 Desardouin’s claim of gender discrimination because of hostile 23 work environment also suffices under the Equal Protection Clause of 24 the Fourteenth Amendment. The District Court properly ruled that her 25 NYSHRL claim was barred on the basis of election of remedies, in view 26 -5-of N.Y. Exec. Law § 297(9), which, with certain exceptions not 1 applicable here, precludes resort to courts after claims have been 2 filed with a local commission on human rights. 3 III. Retaliation Claims 4 The District Court properly determined that Desardouin’s claims 5 of retaliation failed. As with all Title VII claims, an employer can 6 defeat a claim that it took an adverse employment action against an 7 employee by showing that it acted for a legitimate, non-discriminatory 8
reason. SeeMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 9 (1973). The Defendants proffered as a reason for terminating 10 Desardouin her secret recordings of conversations of police officials. 11 As the District Court pointed out, making these recordings was a 12 felony and a violation of departmental policy. Desardouin’s only 13 response to the proffer of this undisputed misconduct was that four 14 months had elapsed between her actions and her termination. Because 15 her misconduct reasonably required some time to investigate, the four16 month interval did not impair the legitimacy of the Defendants’ 17 proffered reason for the termination. The retaliation claims were 18 properly dismissed. 19 Conclusion 20 The judgment of the District Court is reversed with respect to 21 Jewanta Desardouin’s Title VII and section 1983 claims of gender 22 discrimination because of hostile work environment, and those claims 23 are remanded for trial. Dismissal of her retaliation claims and her 24 state law claims is affirmed. 25 Affirmed in part, reversed in part, and remanded. 26 -6-