1

10-4132-cv

Rojas v. The Roman Catholic Diocese of Rochester 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2011

(Argued: August 23, 2011 Decided: October 4, 2011)

Docket No. 10-4132-cv

SANDRA ROJAS,

Plaintiff-Appellant,

v.

THE ROMAN CATHOLIC DIOCESE OF ROCHESTER,

THE PASTORAL CENTER OF THE ROMAN CATHOLIC DIOCESE OF ROCHESTER, &

PASTOR PETER ENYAN-BOADU, INDIVIDUALLY

Defendant-Appellees. 

Before: MINER, CABRANES, and HALL, Circuit Judges.

Plaintiff-appellant Sandra Rojas appeals from a judgment entered October 6, 2010, in the

United States District Court for the Western District of New York (Charles J. Siragusa, Judge),

granting summary judgment in favor of defendants-appellees on her claims of sex discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006), and the New York

State Human Rights Law, N.Y. Exec. Law §§ 290–301. (McKinney 2010 & Supp. 2011). The

District Court granted summary judgment after determining that Rojas had offered “sham evidence”

in opposition to the defendants’ motions for summary judgment. We hold that the District Court
2

did not err in concluding that, in light of Rojas’s inconsistent and contradictory testimony, there was

no genuine issue of fact to be decided by a jury. 

Affirmed.

STEVEN E. LAPRADE, Christina A. Agola PLLC, Brighton, NY, for

Plaintiff-Appellant.

DANIEL J. MOORE, Harris Beach PLLC, Pittsford, NY, for DefendantsAppellees the Roman Catholic Diocese of Rochester and the Pastoral

Center of the Roman Catholic Dioceses of Rochester.

CHARLES A. SCHIANO, SR., Schiano Law Office, P.C., Rochester, NY,

for Defendant-Appellant Pastor Peter Enyan-Boadu.

PER CURIAM:

Plaintiff-appellant Sandra Rojas (“Rojas”) appeals from a judgment entered October 6, 2010,

granting summary judgment in favor of defendants-appellees the Roman Catholic Diocese of

Rochester (“the Diocese”), the Pastoral Center of the Roman Catholic Diocese of Rochester, and

Pastor Peter Enyan-Boadu (“Enyan-Boadu” or “Father Peter”) (jointly, “defendants”) on her claims

of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§

2000e et seq. (2006), and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§

290–301. (McKinney 2010 & Supp. 2011). The primary issue before us on appeal is whether the

District Court properly disregarded certain purported issues of fact in holding that no reasonable

jury could find in favor of Rojas. Because the record shows that this was one of the “rare

circumstance[s] where the plaintiff relies almost entirely on [her] own testimony, much of which is

contradictory and incomplete,” and where “the facts alleged are so contradictory that doubt is cast

upon their plausibility,” Jeffreys v. City of New York, 426 F.3d 549, 554, 555 (2d Cir. 2005) (internal

quotation marks omitted), we hold that the District Court properly made a limited assessment of the

evidence Rojas offered in opposition to summary judgment and concluded that no reasonable jury
1

 The District Court dismissed Rojas’s Title VII and NYSHRL claims against Enyan-Boadu

after noting that Rojas had explicitly abandoned them in her opposition to defendants’ motions for

summary judgment; it then declined to exercise supplementary jurisdiction over her remaining

common law claim of assault and battery. Rojas v. Roman Catholic Diocese of Rochester (“Rojas II”), __ F.

Supp. 2d __, 2010 WL 3945000, at *18, *27 (W.D.N.Y. Oct. 6, 2010). Because Rojas makes no

argument on appeal with respect to these aspects of the District Court’s ruling, we do not examine

them here. See ReGen Capital I, Inc. v. Halperin (In re U.S.Wireless Data, Inc.), 547 F.3d 484, 492 (2d Cir.

2008) (deeming argument not raised on appeal to be waived). 

3

could believe it. Accordingly, we affirm the District Court’s judgment dismissing Rojas’s claims

under Title VII and the NYSHRL.1 

BACKGROUND

An exhaustive description of the facts of this case, including an analysis of various

inconsistencies and contradictions within Rojas’s account, is contained in the District Court’s

Decision and Order of October 6, 2010, granting the defendants’ motions for summary judgment. 

See Rojas v. Roman Catholic Diocese of Rochester (“Rojas II”), __ F. Supp. 2d __, 2010 WL 3945000, at

*1–18, *21–22 (W.D.N.Y. Oct. 6, 2010). For purposes of resolving this appeal, the following

overview suffices.

Rojas was employed by the Diocese as its Coordinator for Hispanic Migrant Ministry for the

Brockport Area from May 2, 2004, through November 9, 2006. Her immediate supervisor was

Bernard Grizard (“Grizard”), the Diocese’s Director for Parish Support Ministries. Rojas’s office

was located on the campus of the Church of the Nativity of the Blessed Virgin Mary (“Church of

the Nativity” or “the parish”), in Brockport, New York. The Church of the Nativity is a separate

corporate entity from the Diocese, though it had an arrangement with the Diocese allowing the

Hispanic Migrant Ministry to operate out of offices in its Parish Center. During the time that Rojas

was employed by the Diocese, Enyan-Boadu was the pastor of the Church of the Nativity. EnyanBoadu was not an employee of the Diocese, but rather of the Church of the Nativity. In her
2 Rojas filed a criminal complaint against Enyan-Boadu with the Village of Brockport Police

Department on November 5, 2006, stating that Enyan-Boadu had touched her inappropriately on

three occasions in July 2006 and that he had made inappropriate sexual comments to her on

October 2, 2006. On November 7, 2006, Rojas and her attorney met with members of the

Brockport Police Department to arrange for Rojas to wear a concealed microphone during a

meeting with Enyan-Boadu in an attempt to have him admit to sexually assaulting her. EnyanBoadu was arrested on November 10, 2006, the day after Rojas was fired, based on the accusations

in Rojas’s complaint. Following the arrest, the Diocese launched an investigation, but Rojas

declined to participate. Enyan-Boadu was tried before a judge of the Town Court of the Town of

Sweden on July 19, 2007. At the conclusion of the bench trial, the court acquitted Enyan-Boadu of

the charges against him.

4

complaint, Rojas alleged that she was the victim of sexual harassment by Enyan-Boadu, which

created a hostile work environment, and that the Diocese fired her in retaliation for her complaining

about Enyan-Boadu’s sexual harassment. 

At the summary judgment stage, the critical issue was whether liability for Enyan-Boadu’s

alleged harassment could be imputed to the Diocese. This depended on (1) whether Enyan-Boadu

was a “supervisor” of Rojas and (2) whether she had made any complaints to the Diocese such that

the Diocese knew or should have known of the alleged sexual harassment. As explained at length in

the District Court’s opinion, see Rojas II, 2010 WL 3945000, at *1–18, *21–22, 24, the only evidence

suggesting that Enyan-Boadu was Rojas’s supervisor or that the Diocese knew or should have

known of the alleged harassment was Rojas’s own testimony, in the form of an affidavit submitted

in opposition to summary judgment, and excerpts from her depositions. This evidence, the District

Court found, contradicted the allegations in Rojas’s complaints as well as other sworn statements

that Rojas had made during the course of discovery and in a separate criminal trial of Enyan-Boadu,

which had ended in his acquittal.2

 Id. at *19–22.

 Rojas’s Conflicting Statements Regarding Enyan-Boadu’s Supervisory Status

In her original complaint, Rojas alleged that Enyan-Boadu was her “co-worker” and referred

to Grizard as her “supervisor.” The District Court subsequently granted in part a defense motion to
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dismiss with leave to replead. Rojas v. Roman Catholic Diocese of Rochester (“Rojas I”), 557 F. Supp. 2d

387, 400 (W.D.N.Y. 2008). In its opinion, the District Court noted that, at oral argument on the

motion to dismiss, “the Court sua sponte raised the issue of whether [the Diocese] could be held

vicariously liable for the alleged hostile environment created by Enyan-Boadu, where, according to

the Complaint, Enyan-Boadu was Plaintiff’s co-worker.” Id. at 394 n.4. Despite the District Court’s

identification of the issue, in her amended complaint, Rojas again alleged that Enyan-Boadu was her

co-worker and that Grizard was her supervisor, and she persisted in characterizing Enyan-Boadu

and Grizard in this manner in her sworn responses to defendants’ interrogatories. This

characterization of Enyan-Boadu’s and Grizard’s respective roles was consistent with Rojas’s earlier

testimony at Enyan-Boadu’s criminal trial.

In her papers opposing defendants’ motion for summary judgment, however, Rojas

contended that Enyan-Boadu was, in fact, her supervisor, or at least one of her supervisors. To

support this assertion, Rojas relied on her own affidavit and certain portions of her deposition

testimony. In her affidavit, Rojas stated that “I was never clear on who her [sic] boss was, as no one

ever clarified it to me,” and that “I asked who my boss is and Grizard said, ‘Grizard, Jesus [Flores,

another priest in the Diocese], and Father Peter [Enyan-Boadu].’” Similarly, during her April 10,

2009, deposition, Rojas stated that she had asked Grizard to “clarify who is my boss” and “[h]e said

that my boss is Bernard [Grizard], Jesus [Flores,] and Father Peter [Enyan-Boadu].”

Rojas did not dispute that Enyan-Boadu’s parish was a separate corporate entity from the

Diocese and that she was employed by the Diocese, not the parish. 

Rojas’s Conflicting Statements Regarding the Diocese’s Knowledge of the Alleged

Harassment

 In three federal complaints—one before the Equal Employment Opportunities Commission

(“EEOC”) and two in the District Court—Rojas alleged that she had made the following generalized
3

 The text of the e-mail that Rojas sent on November 2 did not, in fact, make reference to

sexual misconduct. Rather, Rojas replied to an e-mail that a member of the Diocese’s Human

Resources Department had sent to all employees of the Diocese with the subject line “Sexual

Misconduct Education/Awareness Workshops.” In the text of her e-mail, Rojas stated that “I really

need to talk with you as son [sic] as possible,” but did not raise any particular concerns, much less a

specific complaint regarding Enyan-Boadu’s alleged behavior.

4 That she failed to make such an allegation even in her amended complaint before the

District Court is notable, considering that the District Court had highlighted the omission in its

earlier opinion on defendants’ motion to dismiss. See Rojas I, 557 F. Supp. 2d at 394 n.4 (“During

oral argument, the Court sua sponte raised the issue of whether [the Diocese] could be held vicariously

liable for the alleged hostile environment created by Enyan-Boadu, where, according to the

Complaint, . . . Plaintiff did not notify [the Diocese] of the alleged harassment until months after it

had ceased.”).

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complaints about Enyan-Boadu to the Diocese: (1) On October 30, 2006, she met with Grizard and

complained that “‘Father Peter is making my life miserable’ and ‘you need to take action.’”; (2) At an

October 31, 2006 meeting with Grizard and Mary Bauer, the Diocese’s Director of Human

Resources, she “started to explain to [Bauer] about the hostile environment and work conditions in

my work place” but was interrupted; (3) On November 2, 2006, she “wrote by e-mail to the

Department of Human Resources indicating that I wanted to discuss Sexual Misconduct.”3

 None

of the three pleadings contained an allegation that Rojas had complained specifically of sexual

harassment by Enyan-Boadu.4 Subsequently, in a sworn response to a defense interrogatory asking

her to “[d]escribe each occasion on which [she] complained to the defendants,” Rojas indicated that

the only complaint she had made to the Diocese was on October 30, 2006, when she met with

Grizard and told him that “‘Pastor Peter is making my life miserable’ and ‘you need to take action.’”

Consistent with these statements, Rojas testified at Enyan-Boadu’s trial that she had not made any

specific complaints to the Diocese about Enyan-Boadu’s harassing behavior because she felt

intimidated by Enyan-Boadu.
5

 At an earlier point in her deposition, however, Rojas testified that she had told Grizard that

Enyan-Boadu was “making my life miserable and he need [sic] to do something,” and, when asked if

she had said “[a]nything else,” she said no. When Rojas was deposed by Enyan-Boadu’s attorney on

June 30, 2009, she reverted to this testimony (which was consistent with her testimony at the

criminal trial), indicating that she had not reported the alleged sexual harassment during her August

8, 2006, performance review because she felt threatened by Enyan-Boadu.

It bears noting that the meeting notes memorializing the August 8, 2006, performance

evaluation—which include a self-evaluation and comments written by Rojas, herself—do not

indicate that she raised any concerns to Grizard at that time.

6 Rojas also submitted affidavits from nine individuals who related, in varying degrees of

generality, their impressions of Rojas and Enyan-Boadu. However, none of these individuals

addressed whether Rojas had made specific complaints regarding sexual harassment to the Diocese. 

7

 As noted above, see note 2, ante, Enyan-Boadu was arrested and tried on charges of Forcible

Touching and Harassment in the Second Degree, but acquitted at trial. 

7

Rojas’s story changed when she was deposed by the Diocese’s attorney on April 7, 2009. 

There, for the first time, she stated that she had complained to Grizard during her annual

performance evaluation on August 8, 2006, that Enyan-Boadu was “touching” her.5 She also

testified that, at her October 30 meeting with Grizard, she “accuse[d] Father Peter that [sic] he’s

touching me and kissing me.” Rojas relied on this testimony, as well as her own affidavit, in her

papers opposing summary judgment where she asserted that she had repeatedly complained about

Father Peter and “especially recalls telling the Diocese and Bernard [Grizard] that she was being

sexual [sic] assaulted by Father Peter. She would tell them, ‘Father Peter was touching me’ and

would constantly cry to them.” Pl.’s Mem. Opp. S.J. at 11, Rojas II, No. 07-cv-6250 (CJS),

(W.D.N.Y. July 1, 2010), ECF #60-4. 

While Rojas relied solely on her own testimony to support these assertions,6

 the Diocese

supported its motion for summary judgment with affidavits and contemporaneous e-mails and

meeting notes strongly suggesting that it had no knowledge of the alleged harassment until after

Rojas’s employment ended, when it was reported that Enyan-Boadu had been arrested.7 
8

 The District Court rendered its decision following a hearing at which it warned Rojas’s

counsel of her ethical obligations under Rule 11 of the Federal Rules of Civil Procedure. Rojas II,

2010 WL 3945000, at *19 n. 35. We note that the District Court has been compelled to warn the

law firm that represented Rojas about making improper and unsupported factual representations to

the court on several occasions, both prior and subsequent to its decision in this case. See, e.g.,

Colombo v. E. Irondequoit Cent. Sch., No. 07-CV-6270 CJS, 2010 WL 6004378, at *10 n.8 (W.D.N.Y.

Dec. 17, 2010); Kleehammer v. Monroe Cnty., 743 F. Supp. 2d 175, 188-89 (W.D.N.Y. 2010); O’Reilly v.

Marina Dodge, Inc., No. 08-CV-6550 CJS, 2010 WL 2553458, at *8 (W.D.N.Y. June 22, 2010), vacated

on other grounds, __ F. App’x __, 2011 WL 1897489 (2d Cir. May 19, 2011) (summary order); Johnson

ex rel. U.S. v. The Univ. of Rochester Med. Ctr., 715 F. Supp. 2d 427, 430–31 (W.D.N.Y. 2010); Geiger v.

Town of Greece, No. 07-CV-6066 CJS, 2008 WL 728471, at *5 (W.D.N.Y. Mar. 18, 2008).

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The District Court’s Opinion

In a detailed, 52-page opinion granting defendants’ motions for summary judgment, the

District Court catalogued the inconsistencies and contradictions described above (among others)

and concluded that “this case goes far beyond simple issues of credibility. Rather, upon the entire

record, Plaintiff has changed key aspects of her prior version of events, set forth in pleadings, trial

testimony, and sworn discovery responses, in an attempt to defeat [the Diocese’s] summary

judgment motion.” Rojas II, 2010 WL 3945000, at *19.8 Having demonstrated the inconsistencies

and contradictions in Rojas’s account, the District Court concluded that there were no genuine issues

of material fact that would allow a reasonable jury to find in Rojas’s favor on her Title VII and

NYSHRL claims. Id. at *24–26. After dismissing Rojas’s federal claims, the District Court declined,

pursuant to 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over her common law

assault and battery claim against Enyan-Boadu. Id. at *27. Rojas appeals only the rulings entering

summary judgment on her hostile work environment and retaliation claims against the Diocese.

DISCUSSION

We review the District Court’s entry of summary judgment de novo. See Gayle v. Gonyea, 313

F.3d 677, 682 (2d Cir. 2002). Summary judgment is appropriate when, construing the evidence in

the light most favorable to the non-moving party, “there is no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

“material” for these purposes when it “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” if “the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The mere

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252 (emphasis

added). In weighing the evidence on a motion for summary judgment, “the judge must ask . . . not

whether the evidence unmistakably favors one side or the other but whether a fair-minded jury

could return a verdict for the plaintiff on the evidence presented.” Id. The burden of demonstrating

that no material fact exists lies with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970).

The District Court’s Assessment of Rojas’s Testimony

The District Court granted summary judgment after concluding that Rojas had offered

“sham evidence” in opposition to the defendants’ motions. In other words, it concluded that no

reasonable juror could believe certain of Rojas’s factual averments in opposition to summary

judgment, given contradictory statements she had made in prior sworn testimony and pleadings. 

Although a district court generally “should not weigh evidence or assess the credibility of witnesses,”

Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996), we have held that 

in the rare circumstance where the plaintiff relies almost exclusively on

his own testimony, much of which is contradictory and incomplete, it

will be impossible for a district court to determine whether ‘the jury

could reasonably find for the plaintiff,’ . . . and thus whether there are

any ‘genuine’ issues of material fact, without making some assessment

of the plaintiff’s account.

Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson, 477 U.S. at 252). It

appears from the record before us that this is such a case.
9

 As noted above, see note 6, ante, Rojas also submitted affidavits from nine individuals who

stated generally that they believed Rojas’s claims but did not in fact have any personal knowledge

about whether Enyan-Boadu was Rojas’s supervisor, or whether Rojas had complained to the

Diocese that he had sexually harassed her. The District Court properly found these affidavits to be

irrelevant and inadmissible. Rojas II, 2010 WL 3945000, at *18 n.33; see Fed. R. Civ. P. 56(c)(4) (“An

affidavit or declaration used to support or oppose a motion must be made on personal knowledge,

set out facts that would be admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.”). 

10

Rojas’s opposition to summary judgment relied almost entirely on her own testimony, in the

form of an affidavit and excerpts from her depositions.9 In contrast, the Diocese submitted

competent and persuasive evidence, including contemporaneous letters and meeting notes

suggesting that, to the extent Rojas made complaints regarding her relationship with Enyan-Boadu,

they related to the general friction between the two and made no reference to sexual harassment. 

Therefore, in order to determine whether there were any genuine issues of material fact to be tried

by a jury, the District Court was entitled to assess Rojas’s factual averments. Jeffreys, 426 F.3d at 554.

The District Court scrupulously detailed plain inconsistencies between the facts advanced by

Rojas in opposition to summary judgment and those alleged in her original and amended complaints,

in sworn interrogatory responses, in portions of her deposition testimony, in her complaints before

the EEOC, and in prior sworn testimony against Enyan-Boadu at his criminal trial. See Rojas II, 2010

WL 3945000, at *3–22. In particular, the District Court observed that Rojas had repeatedly alleged

that Enyan-Boadu was her “co-worker” and not her employer or supervisor in her earlier sworn

statements and in her complaints, only to abruptly describe him as one of her supervisors in her

papers opposing summary judgment. Id. at *21. In addition, the District Court noted that, despite

expressly testifying in Enyan-Boadu’s criminal trial that she made no complaint about his sexual

harassment of her to the Diocese, and despite having made no allegation to the contrary in the civil
11

complaints filed in the District Court, Rojas suddenly asserted in her opposition papers and portions

of her deposition testimony that she had indeed made such a complaint on August 8, 2006. Id. at

*21–22.

These new allegations, directly contradicted by her prior sworn statements and judicial

admissions, were properly rejected by the District Court after a careful consideration of the record

before it. See Jeffreys, 426 F.3d at 555 (affirming district court’s entry of summary judgment where

“(1) the District Court found nothing in the record to support plaintiff’s allegations other than

plaintiff’s own contradictory and incomplete testimony, and (2) the District Court, even after

drawing all inferences in the light most favorable to the plaintiff, determined that no reasonable

person could believe Jeffreys’s testimony” (internal citation and alteration omitted)); see also Bellafonte

Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528–29 (2d Cir. 1985) (“A party’s assertion of fact in a

pleading is a judicial admission by which it normally is bound throughout the course of the

proceeding. Accordingly, the district court properly disregarded Universal’s affidavits seeking to

controvert its own pleading.” (internal citations omitted)). 

In so holding, we do not suggest that district courts should routinely engage in searching,

skeptical analyses of parties’ testimony in opposition to summary judgment. As we observed in

Jeffreys, “if there is a plausible explanation for discrepancies in a party’s testimony, the court

considering a summary judgment motion should not disregard the later testimony because an earlier

account was ambiguous, confusing, or simply incomplete.” 426 F.3d at 555 n.2 (internal quotation

marks and alteration omitted). However, in certain extraordinary cases, where “the facts alleged are

so contradictory that doubt is cast upon their plausibility, the court may pierce the veil of the

complaint’s factual allegations and dismiss the claim.” Id. at 555 (internal quotation marks and

alteration omitted). To hold otherwise, and require district courts to allow parties to defeat summary
12

judgment simply by testifying to the allegations in their pleadings (or, as here, to facts not alleged in

their pleadings), would “license the mendacious to seek windfalls in the litigation lottery.” Arrington

v. United States, 473 F.3d 329, 344 (D.C. Cir. 2006) (Brown, J., concurring in part and dissenting in

part). 

Here, Rojas and her counsel were given ample opportunity to explain or reconcile Rojas’s

inconsistent and contradictory statements, but no such explanation was provided. Rather, Rojas

simply maintained that credibility determinations are left to the jury. However, as explained above,

in certain cases a party’s inconsistent and contradictory statements transcend credibility concerns

and go to the heart of whether the party has raised genuine issues of material fact to be decided by a

jury. This is such a case. Therefore, the District Court did not err in concluding, in effect, that the

evidence introduced by Rojas was not “of such a character that it would warrant the jury in finding a

verdict in favor of that party.” Anderson, 477 U.S. at 251 (internal quotation marks omitted).

The District Court’s Ruling on Plaintiff’s Title VII and NYSHRL Claims

Having concluded that Rojas failed to create a genuine issue of material fact with respect to

the imputation of liability to the Diocese, the District Court proceeded to dismiss Rojas’s hostile

work environment and retaliation claims. Once again, we find no error in the District Court’s

rulings. 

1. Hostile Work Environment Claim

Under Title VII, 

a plaintiff claiming he or she was the victim of an unlawful hostile work

environment must elicit evidence from which a reasonable trier of fact

could conclude (1) that the workplace was permeated with discriminatory

intimidation that was sufficiently severe or pervasive to alter the

conditions of his or her work environment, and (2) that a specific basis

exists for imputing the conduct that created the hostile environment to

the employer. 
10 We have observed that “claims brought under New York State’s Human Rights Law are

analytically identical to claims brought under Title VII.” Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d

Cir. 1997). One notable exception to this rule is that, while an individual defendant with supervisory

control may not be held personally liable under Title VII, see Tomka v. Seiler Corp., 66 F.3d 1295, 1313

(2d Cir. 1995), abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S. 742 (1998), an individual

defendant may be held liable under the aiding and abetting provision of the NYSHRL if he “actually

participates in the conduct giving rise to a discrimination claim,” id. at 1317. This exception is of no

import in this case, however, because Rojas conceded at summary judgment that she does not seek

to hold Enyan-Boadu individually liable under either Title VII or the NYSHRL. Therefore, our

discussion of Rojas’s Title VII claims apply equally to her claims under the NYSHRL. 

13

Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (internal quotation marks omitted).10

“When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the

plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or

knew of the harassment but did nothing about it.’” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d

Cir. 1997) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994)). 

Here, the District Court held that liability for the alleged sexual harassment could not be

imputed to the Diocese because Enyan-Boadu was not Rojas’s supervisor and there was no evidence

from which a reasonable jury could find that the Diocese knew or should have known about the

alleged harassment and failed to take appropriate remedial action. Rojas II, 2010 WL 3945000, at

*24. Given its decision with respect to Rojas’s contrived assertions of disputed facts, which we have

affirmed, the District Court was presented with no genuine issue of material fact regarding whether

liability for Enyan-Boadu’s alleged harassment could be imputed to the Diocese. Therefore, it

properly dismissed Rojas’s hostile environment claims because the competent evidence in the record

showed that Enyan-Boadu was not Rojas’s supervisor (and indeed was employed by a distinct

corporate entity), that the Diocese did provide a reasonable avenue for complaint, and that Rojas

had not made a specific complaint to the Diocese such that it knew or should have known about the

alleged sexual harassment. 
14

2. Retaliation Claim

Title VII retaliation claims follow the three-part burden-shifting analysis set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): 

First, the plaintiff must establish a prima facie case of retaliation by

showing: (1) participation in a protected activity; (2) that the defendant

knew of the protected activity; (3) an adverse employment action; and

(4) a causal connection between the protected activity and the adverse

employment action. The plaintiff’s burden in this regard is de minimis

and the court’s role in evaluating a summary judgment request is to

determine only whether proffered admissible evidence would be

sufficient to permit a rational finder of fact to infer a retaliatory motive.

If the plaintiff sustains this initial burden, a presumption of retaliation

arises. The defendant must then articulate a legitimate, non-retaliatory

reason for the adverse employment action. If so, the presumption of

retaliation dissipates and the employee must show that retaliation was

a substantial reason for the adverse employment action. 

Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks and citations omitted). We

have held that “implicit in the requirement that the employer have been aware of the protected

activity is the requirement that it understood, or could reasonably have understood, that the

plaintiff’s [complaint] was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty

& Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (emphasis added).

In this case, the District Court held that Rojas had failed to establish a prima facie case of

retaliation inasmuch as she had not shown that she had engaged in any protected activity. Rojas II,

2010 WL 3945000, at *26. The competent evidence in the record showed that any complaints Rojas

made were generalized and therefore the Diocese could not reasonably have understood that she

was complaining of “conduct prohibited by Title VII.” See Galdieri-Ambrosini, 136 F.3d at 292. 

Moreover, the District Court concluded that the Diocese’s proffered reason for Rojas’s termination

(that she had stopped coming to work) was legitimate, nonretaliatory, and nonpretextual. Rojas II,

2010 WL 3945000, at *26. Given the state of the record, the District Court did not err in dismissing

Rojas’s retaliation claims.
15

CONCLUSION

To summarize:

(1) We hold that the District Court’s evidentiary rulings disregarding certain of Rojas’s

contrived factual allegations were proper under Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

and Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005). 

(2) Consequently, we affirm the District Court’s judgment dismissing Rojas’s claims under

Title VII and the NYSHRL. 

(3) We do not consider, much less take a position on, Rojas’s remaining common law assault

and battery claim against Enyan-Boadu, which was dismissed without prejudice to refiling in state

court and was not before us on appeal.

Accordingly, the judgment of the District Court is hereby AFFIRMED.