20

- 3976 Miller v. New York State Police



### UNITED STATES COURT OF APPEALS FOR THE SECOND 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 DATABASE (WITH THE NO TATION “ 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 1 8 t h da y of A p r i l , two thousand twenty

- two

. 3 4 PRESENT : 5 JOHN M. WALKER, JR., 6 RICHARD J. SULLIVAN, 7 EUNICE C. LEE, 8 Circuit Judges

. 9

_____________________________________ 10 11 L ETHONIA M ILLER , 12 13 Plaintiff

- Appellant
, 14 15

v. No. 20

- 3976 16 17 N EW Y ORK S TATE P OLICE , K EVIN K ENDALL , 18 F RANCIS P. C HRISTENSEN , 19 20 Defendant s

-

Appell ees

. 21

_____________________________________ 22 23 For Plaintiff

- Appellant: L INDY S. K ORN , Law Office of Lindy 24 Korn PL L C , Buffalo, N ew York. 25 26 For Defendants

- Appellees New York 27 State Police and Francis P. Christensen: B RIAN D. G INSBERG , Assistant Solicitor 28 Gener al ( Barbara D. Underwood, Solicitor 29 General, Jeffrey W. Lang, Deputy Solicitor 30 General
, and Jonathan D. Hitsous
, Assistant 31 Solicitor General, on the brief )
, for Letit i a 32 James, Attorney General of the State of New 33 York , Albany, New York. 34 35 For Defendant

- Appellee Kevin Kendall: R ODNEY O. P ERSONIUS , Personiu s Melber 36 LLP , B uffalo, New York. 372 Appeal from a judgment of the United States District Court for the Western District of New 1

York ( Richard J. Acara
, J udge )

. 2

3

UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND 4

DECREED that the judgment of the district court is AFFIRMED

. 5

Plaintiff

- Appellant Lethonia Miller , a n African American ma le and a former investigator 6

for the New York State Police
, appeals from a judgment of the d istrict c ourt (Acara, J. ) adopting 7
the Report and Recommendation of the m agistrate j udge (Foschio, M.J. ) and granting summary 8
judgment in favor of Defendants

- Appellees

. Miller brought claims for race

- based disparate 9

treatment, retaliation
, a nd hostile work environment against his former supervisor, Defendant

10
Appellee Kevin Kendall
, under 42 U.S.C. §§ 198 1 & 1983
, and against Defendant

- Appellee New 11

York State Police under Title VII of the Civil Rights Act of 1964
, 42 U.S.C. § 2000e et seq. (“Title 12
VII”) . Miller also brought disability

- based claims against the New York State Police and its 13

D eputy S uperintendent, Defendant

- Appellee Francis P. Christensen
, for discrimination under the 14

Americans with Disabilities Act, 42 U.S.C. § 12 1 01 et seq. (“ADA”)
, and for discrimination and 15

retaliation under the Family Medical Leave Act , 29 U.S.C. § 2601 et seq. , and the Rehabilitation 16

Act , 29 U.S.C. § 701 et seq. As relevant to this appeal, Miller alleged in sum that Kendall, who is 17

Caucasian
, created a hostile work environment by using racially derogatory language, and that the 18

New York State Police and Christensen discriminated against Miller on the basis of his disability 19

and retaliated against Miller by suspending him without pay and denying his request for outside 20
employment

. 213 This Court applies de novo review to a district court’s grant of summary judgment. Delaney 1
v. Bank of Am. Corp. , 766 F.3d 163, 167 (2d Cir. 2014). A grant of summary judgment will be 2
upheld “if the evidence, viewed in the light most favorable to the part y against whom [summary 3
judgment was ] entered, demonstrates that there are no genuine issues of material fact and that the 4
judgment [was] warranted as a matter of law.” Glob

. Network Commc ’ ns, Inc. v. City of New York
, 5
562 F.3d 145, 150 (2d Cir. 2009) ; see Fed. R. Civ. P. 56(a) . A genuine issue of material fact exists 6
if, after resolving all ambiguities and drawing all inferences in favor of the nonmovant, a 7
reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 8

U. S. 242, 248 (1986); Garcia v. Hartford Police Dep ’ t , 706 F.3d 120, 127 , 129 (2d Cir. 2013)

. We 9
assume the parties’ familiarity with the underlying facts , procedural history, and issues on appeal. 10

11

I. Existence of a Hostile Work Environment 12

Miller alleged hostile work environment claims against the New York State Police under 13
Title VII and against Kendall under 42 U.S.C. § 1981. 1 14

To establish a hostile work environment under Title VII or § 1981, “a plaintiff must show 15
that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is 16

1 As an initial matter, individual supervisors are not subject to liability under Title VII. Mandell v. C ount y of Suffolk , 316 F.3d 368 , 377 (2d Cir. 2003). Miller has therefore waived his hostile work environment claim as to Kendall by framing that claim solely in terms of Title VII. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V. , 412 F.3d 418, 428 (2d Cir. 2005) ( noting that “ a rguments not made in an appellant’s opening brief are waived”). Similarly, Miller does not discuss in his brief and has therefore waived his claims for disparate treatment and retaliation as to all Defendants

- Appellees

. See Lore v. City of Syracuse , 670 F.3d 127, 149 (2d Cir. 2012) (holding that related but undiscussed claims are waived).4 sufficiently severe or pervasive to alter the conditions of the victim ’ s employment and create an 1
abusive working environment.’” Li ttlejohn v. City of New York , 795 F.3d 297, 32 0

– 2 1 (2d Cir. 2
2015) (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)). “In determining whether a 3
plaintiff suffered a hostile work environment, we must consider the totality of the 4

circumstances

. . . . ” Id. at 321

. A court ruling on a motion for summary judgment “ may not 5
properly focus on individual strands of evidence and consider the record in piecemeal fashion; 6

rather, it must consider all of the evidence in the record, reviewing the record tak en as a whole.” 7

Lyons v. Lancer Ins. Co. , 681 F.3d 50, 57 (2d Cir. 2012) ( alterations incorporated and internal 8
citations and quotation marks omitted)

. “[W]hen the same individuals engage in some harassment 9
that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a 10

hostile work environment claim.” Rasmy v. Marriott Int ’ l, Inc. , 952 F.3d 379, 388 (2d Cir. 2020). 11
Moreover, “conduct not directly targeted at or spoken to an individual but purposefully 12
taking place in his presence can nevertheless transform his work environment into a hostile or 13

abusive one.” Id. at 389. “For racist comments, slurs
, and jokes to const itute a hostile work 14
environment, there must be more than a few isolated incidents of racial enmity, meaning that 15
instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. 16

Thus, whether racial slurs constitute a hosti le work environment typically depends upon the 17
quantity, frequency, and severity of those slurs
, considered cumulatively in order to obtain a 18

realistic view of the work environment.” Schwapp v. Town of Avon , 118 F.3d 106, 110

– 11 (2d Cir. 19
1997) ( internal ci tations and quotation marks omitted). 20
In support of his claim s , Miller pointed to at least twelve incidents over a period of three 21
years wherein Kendall, in Miller’s presence, allegedly repeated the statements of colleagues or 225 witnesses containing racial slurs, called particular African Americans “animals” or “savage s,” used 1
a mocking or minstrelsy voice, showed Miller an online video making fun of an African American 2
woman, used the word “nigga” in a Facebook post under a fictitious name as part of an undercover 3
investigation, and remarked that a suspect’s African Am erican sister “had a great body for monkey 4

sex.” J. App’x at 65

– 66 , 474, 890, 1017

. 5
Miller argues that the district court improperly failed to view the twelve alleged workplace 6
incidents in their totality
, instead analyz ing the incidents individually or di viding them into several 7
categories. However, t he district court was aware of the “ totality of the circumstances ” 8
requirement, which was cited in the Magistrate Judge’s Report. While the Report organizes its 9
detailed discussion of the twelve alleged incidents into several categories, this alone does not 10

indicate the district court failed to consider them in their totality

. It does not appear to be the same 11
kind of piecem eal analysis at issue in cases cited by Miller, where district court s ignored or failed 12
to adequately consider incidents that were not facially discriminatory
, s ee Moll v. Telesector Res. 13

Grp., Inc. , 760 F.3d 198, 203 (2d Cir. 2014); Kaytor v. Elec. Boat C orp. , 609 F.3d 537, 548 (2d 14
Cir. 2010)
, or rejected a claim because the alleged incidents were episodic rather than continuous, 15

see Redd v. N. Y

. Div. of Parole , 678 F.3d 166 , 180 (2d Cir. 2012)

. 16
Miller further argues that he met his prima facie burden as to the existence of a hostile 17
work environment by establishing that racial epithets were used in the workplace generally
, 18
irrespective of whether such epithets were directed specifically at him

. To be sure, t his Court 19
recognize s the special powe r that a supervisor’s use of a racial epithet has in creating a hostile 20

work environment

. S ee Rivera v. Rochester Genesee Reg’l Transp. Auth. , 743 F.3d 11, 24 (2d Cir. 21
2012)

. And w hile a plaintiff must usually show “more than a few isolated incidents of racial 226 enmity
, ” we have recognized the caveat that “ a hostile work environment can also be established 1
through evidence of a single incident of harassment that is extraordinarily sev ere

. ” Fincher v. 2
Depository Tr. & Clearing Corp. , 604 F.3d 712, 724 (2d Cir. 2010) ( internal citations and 3
quotation marks omitted). Beyond this caveat, however, the standard articulated in Schwapp v. 4
Town of Avon still applies and, viewing the facts in th e light most favorable to him, Miller does 5

not make out a case for hostile work environment under that standard

. See Albert

- Roberts v. GGG 6

Constr., LLC , 542 F. App’x 62, 64 (2d Cir. 2013) (rejecting plaintiff’s argument “that the single 7

use of the word ‘ni gger’ is so severe as to make out a prima facie case and survive summary 8
judgment”). 9
Accordingly, the district court properly granted summary judgment in favor of Defendants

10
Appellees on Miller’s hostile work environment claims. 2 11

12

II. Faragher / Ellerth Defense 13

Even if it could be argued that Miller had made out a prima facie case for hostile work 14

environment, the district court ’s grant of summary judgment in favor of Defendants

- Appellees was 15
still justified under the so

- called Faragher / Ellerth defense

. T h at affirmative defense to employer 16
liability for a hostile work environment claim “ consists of two elements: that (1) ‘the employer 17
exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior,’ 18
and (2) ‘the plaintiff em ployee unreasonably failed to take advantage of any preventive or 19

2 Miller also challe nges the district court’s dismissal of his constructive discharge claim, which it premised on the same analysis as its dismissal of Miller’s hostile work environment claims

. The former argument fail s for the same reasons as the latter

.7 corrective opportunities provided by the employer or to avoid harm otherwise.’” Gorzynski v. 1
JetBlue Airways Corp. , 596 F.3d 93, 103 (2d Cir. 2010) ( first quoting Faragher v. City of Boca 2

Ra ton , 524 U.S. 775, 807 (1998) ; and then quoting Burlington Indus. , Inc. v. Ellerth , 524 U.S. 742, 3
765 (1998)) (alteration incorporated)

. Miller argues that the district court erred when it held in the 4

alternative that, even if Miller had pointed to evidence capable of establishing the existence of a 5
hostile work environment, the New York State Police would be shielded from liability based on 6

the Faragher / Ellerth defense. In particular, Miller argues the New York St ate Police did not take 7
any action to promptly correct the discriminatory harassing behavior because the internal 8
investigation that followed Miller’s filing of a formal internal complaint resulted in Kendall being 9
censured only for using a photo without p ermission in a pseudonymous Facebook post

. 10
Miller’s argument misapprehends the first element of the defense , which looks to the 11
adequacy and efficacy of the employer’s procedures in addressing harassment, not simply to the 12
specific discipline imposed as a n end result of those procedures . “An employer may demonstrate 13
the exercise of reasonable care, required by the first element, by showing the existence of an 14
antiharassment policy during the period of the plaintiff ’ s employment, although that fact alone is 15
not always dispositive.” Ferraro v. Kellwood Co ., 440 F.3d 96, 102 (2d Cir. 2006). Miller has not 16
disputed that the New York State Police maintained a policy for dealing with the discriminatory 17
behavior in question. Nor does he “dispute the reasonableness of [ the New York State Police ]’s 18
antiharassment policy or its complaint procedures.” Id. at 103. Under those procedures, the New 19

York Sta te Police conducted a thorough investigation in response to Miller’s formal internal 20
complaint

— reviewing records and inquir ing into each of the alleged incidents through a score of 21

witness interviews

— and produced a detailed written report on the findings. T he internal 228 procedures indeed seem to have promptly corrected the harassing behavior, as Miller has not 1
alleged any racially derogatory conduct by Kendall postdating Miller’s filing of an internal 2
complaint. As to the second element of the defense
, t he Ne w York State Police policy provides 3
that employees can make a complaint to human resources directly or through a supervisor
, yet 4

Miller waited to file his formal complaint until approximately three years after the alleged 5
harassing behavior began. D uring those three years , Miller voiced his objections , such as they 6

were, only to Kendall. His responses to Kendall’s alleged comments ranged from disregard to 7
deflection to mild chastisement to questioning. 3 E ven assuming Miller had informal ly complained 8

to Ke ndall, those informal complaints to his supervisor

— and alleged harasser

— are not enough 9

for Miller to show (as he must to defeat the affirmative defense) that he took advantage of the New 10

York State Police’s preventive or corrective opportunities

. “ In some instances, it may be 11
unreasonable for a victim of harassment to complain only to the harasser because, as a realistic 12
and practical matter, there are other channels that are adequately indicated and are accessible and 13

open. ” Gorzynski , 593 F.3d at 105

. Her e, the New York State Police’s other avenues were known 14

and accessible to Miller during the three

- year period . Once Miller did finally u tilize the internal 15

3 For example, in v arious alleged incidents Miller responded by shaking his head and walking away, telling Kendall a video Kendall showed him was not funny, saying “Not cool” about a Facebook post by Kendall, J. App’x at 372
, or asking Kendall “why do they have to be animals?” when Kendall referred to certain African American victims of a crime as animals , J. App’x at 388

. When Miller unequivocally complained to Kendall, it was about non

- New York State Police members over whom Kendall had no authority (and to whom the New York State Police complaint procedure presumably did not apply); nevertheless, in those instances Kendall told Miller how he could file a complaint externally.9 complaint procedure, his complaint was effectively investigated
, and no retaliation has been 1

shown. 2
Accordingly, summary judgment was also properly granted in favor of the New York State 3

Police based on the Faragher / Ellerth defense. 4

5

III. Disability Claims 6

“To establish a prima facie case of discrimination based on an employer ’ s failure to 7
accommodate a disability, under either the ADA or the Rehabilitation Act, a plaintiff must 8
demonstrate that (1) the plaintiff is a person with a disability under the meaning of the statute in 9
question; (2) an employer covered by th e statute had notice of his disability; (3) with reasonable 10
accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the 11
employer has refused to make such accommodations.” Natofsky v. City of New York , 921 F.3d 337, 12
352 ( 2d Cir. 2019) ( alterations incorporated and citations and internal quotation marks omitted). 13

In addition, the Family Medical Leave Act entitles eligible employees to twelve weeks per year of 14
unpaid leave on account of “a serious health condition that makes the employee unable to perform 15

the functions of the position of such employee. ” 29 U.S.C. § 2612(a)(1)(D). 16

After Miller submitted a doctor’s letter stating that he was unable to work for a period of 17

two weeks , the New York State Police and Christensen placed Miller on involuntary, indefinite 18
leave rather than light duty

. Miller argues that, in doing so, his employer denied his requested 19
accommodation and failed to engage in the “ interactive process ” envis ioned by the ADA. 20
While “generally, it is the responsibility of the individual with a disability to inform the 21
employer that an accommodation is needed,” Graves v. Finch Pruyn & Co.
, 457 F.3d 181, 184 (2d 2210 Cir. 2006) ( citation and internal quotation marks omitted) , “[t]he ADA envisions an ‘interactive 1
process’ by which employers and employees work together to assess whether an employee ’ s 2
disability can be reasonably accommodated,” Jackan v. N.Y. State Dep ’ t of Lab. , 205 F.3d 562, 3
566 (2d Cir . 2000). “Nevertheless, an employee may not recover based on his employer ’ s failure 4
to engage in an interactive process if he cannot show that a reasonable accommodation existed at 5

the time of his dismissal.” McElwee v. C ounty of Orange , 700 F.3d 635, 642 (2d Cir. 2012). 6

Here, Miller failed to show that a light duty position was available or that, given the nature 7
of his disability, light duty would be a reasonable accommodation enabling him to perform the 8
essential functions of his job. Nor did Miller requ est light duty. Rather, by submitting a doctor’s 9

letter stating he was unable to work for a period of two weeks
, Miller requested leave . His 10
employer placed him on leave , albeit for a longer period than Miller desired
, pursuant to New York 11

State Police policy

. In light of these facts, Miller cannot make out a prima facie case for failure to 12

accommodate under the ADA or the Rehabilitation Act . Nor is the Family Medical Leave Act 13
implicated simply by the fact that the New York State Police placed Mi ller on leave for longer 14
than requested. See Sista v. CDC Ixis N. Am., Inc. , 445 F.3d 161, 174

– 75 (2d Cir. 2006) (holding 15
that involuntary leave by itself does not violate any right provided by the Family Medical Leave 16

Act ). 17
Accordingly, the district court properly granted summary judgment in favor of Defendants

18
Appellees on Miller’s disability

- related claims

. 19

20

* * * 2111 We have considered Miller’s remaining arguments and find them to be without merit. 1
Accordingly, we AFFIRM the judgment of the district court

. 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk of Court 4