*Judge Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation

. 11-657-cv Jerram v. Cornwall Central School District
**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**  **( 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of February, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges , 8 ROSLYNN R. MAUSKOPF, * 9 District Judge. 10 11 12 13 JILL JERRAM, 14 15 Plaintiff-Appellant , 16 17 -v.- 11-657-cv 18 19 CORNWALL CENTRAL SCHOOL DISTRICT, TIMOTHY 20 REHM, Superintendent of Schools, sued in 21 his individual capacity, MICHAEL BROOKS, 22 Assistant Superintendent of Schools, sued 23 in his individual capacity, 24 25 Defendants-Appellees. 26 27 28**Judge Marilyn Hall Patel, of the United States District Court for the Northern District of California, sitting by designation. 2 FOR APPELLANT: STEPHEN BERGSTEIN (Helen G. Ullrich, on 1 the brief ), Bergstein & Ullrich, LLP, 2 Chester, N.Y. 3 4 FOR APPELLEES: GREGG T. JOHNSON, Lemire Johnson, LLC, 5 Malta, N.Y. 6 7 Appeal from the United States District Court for the 8 Southern District of New York (Patel, J. ). ** 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11
**AND DECREED**that the judgment of the United States District 12 Court for the Southern District of New York be **AFFIRMED**
. 13 Appellant Jill Jerram appeals from a judgment of the 14 United States District Court for the Southern District of 15 New York (Patel, J. ), which granted Appellees’ motion for 16 summary judgment on Jerram’s claims of gender harassment and 17 discrimination in violation of Title VII and the Equal 18 Protection Clause of the Fourteenth Amendment, retaliation 19 in violation of Title VII, and retaliation in violation of 20 the First Amendment. We assume the parties’ familiarity 21 with the underlying facts, the procedural history, and the 22 issues presented for review. 23 “We review a district court’s grant of summary judgment 24 de novo , viewing the facts in the light most favorable to 253 the non-moving party.” Amador v. Andrews , 655 F.3d 89, 94 1 (2d Cir. 2011). Although we view the evidence in favor of 2 the non-moving party, “the mere existence of a scintilla of 3 evidence in support of the plaintiff’s position will be 4 insufficient [to withstand a summary judgment motion]; there 5 must be evidence on which the jury could reasonably find for 6 the plaintiff.” Jeffreys v. City of New York , 426 F.3d 549, 7 554 (2d Cir. 2005) (internal quotation marks and alteration 8 omitted) (emphasis in original). 9 We find no error in the district court’s grant of 10 summary judgment to Appellees on Jerram’s Title VII hostile 11 work environment claim and accompanying Equal Protection 12 Clause claim. To establish a hostile work environment 13 claim, the plaintiff must demonstrate that the conduct 14 complained of (1) is objectively pervasive or severe; (2) is 15 subjectively pervasive or severe; and (3) occurred because 16 ofthe plaintiff’s gender. Patane v. Clark , 508 F.3d 106, 17 113 (2d Cir. 2007) (per curiam). The plaintiff’s burden of 18 establishing that conduct is gender-based is rendered easier 19 where the plaintiff is harassed in gender-specific terms; 20 the plaintiff’s task is more difficult where the conduct 21 complained of is facially gender-neutral. See Raniola v. 22
Bratton , 243 F.3d 610, 621 (2d Cir. 2001). 234 Here, Jerram has fallen short of providing evidence 1 from which one could reasonably determine that Brooks’ 2 conduct was gender-based. A number of school 3 administrators, men and women alike, stated that Brooks was 4 a direct, short, abrasive, and sometimes disrespectful 5 supervisor. Brooks subjected many of his colleagues to the 6 same behavior that Jerram complains of, and there is little 7 evidence that Brooks treated women any worse than he treated 8 men. Jerram’s conclusory statements to the contrary do not 9 rescue her claim. See Meiri v. Dacon , 759 F.2d 989, 998 (2d 10 Cir. 1985). 11 We similarly reject Jerram’s contention that the 12 district court erred in granting summary judgment to 13 Appellees on her Title VII retaliation claim. To establish 14

a prima facie case of retaliation, the plaintiff must 15 establish that “(1) she was engaged in an activity protected 16 under Title VII; (2) the employer was aware of [the] 17 plaintiff’s participation in the protected activity; (3) the 18 employer took adverse action against [the] plaintiff; and 19 (4) a causal connection existed between the plaintiff’s 20 protected activity and the adverse action taken by the 21 employer.” Mack v. Otis Elevator Co. , 326 F.3d 116, 129 (2d 22 Cir. 2003) (internal quotation marks and citation omitted). 235 If the plaintiff succeeds in establishing her prima facie 1 case of retaliation, then the familiar McDonnell Douglas 2 burden-shifting framework applies. See Rojas v. Roman 3 Catholic Diocese of Rochester , 660 F.3d 98, 107 (2d Cir. 4 2011). After a thorough review of the record, we find that 5 Jerram has failed to raise a genuine issue of material fact 6 from which a reasonable jury could conclude that she was a 7 victim of unlawful retaliation. 8 Finally, we affirm the district court’s grant of 9 summary judgment to Appellees on Jerram’s First Amendment 10 retaliation claim, but for a different reason than those 11 identified by the district court. See Freedom Holdings, 12
Inc. v. Cuomo , 624 F.3d 38, 49 (2d Cir. 2010). To prevail 13 on a First Amendment retaliation claim, a public employee 14 must demonstrate at least that she was speaking as a citizen 15 and not pursuant to her official duties. Garcetti v. 16 Ceballos , 547 U.S. 410, 421 (2006). The “inquiry into 17 whether a public employee spoke pursuant to his or her 18 official duties is a practical one,” and the employee’s 19 official job description is not dispositive. Weintraub v. 20 Bd. of Educ. , 593 F.3d 196, 202 (2d Cir. 2010) (internal 21 quotation marks and citation omitted). 22 236 According to Jerram’s brief, “[Pupil Personnel 1 Services] oversees special education at the school district, 2 including referrals, placement, curriculum, budgets, program 3 development, professional development, staff supervision, 4 grants and state revenue.” Jerram Br. 2. Jerram was the 5 Assistant Director of Pupil Personnel Services. She claims 6 that Brooks may have been purposefully overestimating the 7 number of special education teachers needed in the high 8 school. She informed Jill Boynton, the Director of Pupil 9 Personnel Services, and together they met with the 10 district’s superintendent to discuss the issue. Jerram also 11 offered Boynton suggestions on how she could redirect the 12 excess staff. Under these circumstances, it is clear that, 13 as a practical matter, Jerram was speaking pursuant to her 14 official duties when she brought the staffing issue to the 15 attention of her superiors. 16 We have considered Jerram’s remaining arguments and, 17 after a thorough review of the record, find them to be 18 without merit. 19 For the foregoing reasons, the judgment of the district 20 court is hereby **AFFIRMED**
. 21
22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24 25 26