14

‐ 1672

‐ cv

Hand v. New York City Housing Preservation and Development Division of Code Enforcement

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 NOTATION

“SUMMARY ORDER”). A PARTY CITING TO 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 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 26 th day of May, two thousand fifteen. 3

4

PRESENT: RALPH K. WINTER, 5

RAYMOND J. LOHIER, JR., 6

SUSAN L. CARNEY, 7

Circuit Judges

. 8

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 9

10

DEBORAH HAND, 11

12

Plaintiff

‐ Appellant

, 13

14

v. No. 14

‐ 1672

‐ cv 15

16

NEW YORK CITY HOUSING 17

PRESERVATION AND DEVELOPMENT 18

DIVISION OF CODE ENFORCEMENT, 19

20

Defendant

‐ Appellee

. 21

22

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 23

24

FOR APPELLANT: Deborah Hand, pro se

, Brooklyn, NY. 25

262 FOR APPELLEE: Pamela Seider Dolgow, Ingrid R. Gustafson, for 1

Zachary W. Carter, Corporation Counsel of the 2

City of New York, New York, NY. 3

4

Appeal from a judgment of the United States District Court for the Eastern 5

District of New York (Roslynn R. Mauskopf, Judge ). 6

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 7

AND DECREED that the judgment of the District Court is AFFIRMED IN PART, 8

VACATED IN PART, and REMANDED. 9

Deborah Hand, pro se, appeals the District Court’s grant of summary 10

judgment dismissing her employment discrimination and retaliation claims 11

under Title VII of the Civil Rights Act of 1964 and the Americans with 12

Disabilities Act (ADA) and denying her request for relief from pre

‐ termination 13

administrative decisions pursuant to Federal Rules of Civil Procedure 59 and 60. 14

We assume the parties’ familiarity with the facts and record of the prior 15

proceedings, to which we refer only as necessary to explain our decision to 16

affirm in part, vacate in part, and remand. 17

Hand filed an initial complaint with the New York State Division of 18

Human Rights (NYSDHR) on December 9, 2009, and she presented no evidence 19

that she filed a relevant complaint with the Equal Employment Opportunity 20

Commission prior to that date. The District Court did not err in dismissing as 21

time

‐ barred her Title VII claims insofar as they rested on allegations of 22

discriminatory conduct that occurred more than 300 days before December 9, 23

2009. See Harris v. City of New York, 186 F.3d 243, 247 & n.2 (2d Cir. 1999); see 24

also 42 U.S.C. § 2000e

‐ 5(e)(1). 25

Except for her hostile work environment claim, the District Court also 26

properly dismissed all of Hand’s Title VII race and sex discrimination and 273 retaliation claims. First, the determination by the administrative law judge (ALJ) 1

that Hand was guilty of misconduct and incompetence provided a legitimate, 2

nondiscriminatory reason for Hand’s dismissal, and Hand provided no evidence 3

that this reason was pretextual. Second, we agree that Hand’s retaliation claims 4

fail because there is no record of a causal connection between her complaints and 5

the alleged adverse employment actions taken against her. See Zann Kwan v. 6

Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013). 7

The District Court erred in granting summary judgment on Hand’s Title 8

VII hostile work environment claim. Based on record evidence that Hand’s 9

supervisor felt her breast and repeatedly invaded her personal space, a 10

reasonable factfinder could find that these incidents were “sufficiently severe

. . . 11

to alter the conditions” of Hand’s employment and “create an abusive working 12

environment.” 1 Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting 13

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see Redd v. N.Y. Div. of 14

Parole, 678 F.3d 166, 178

‐ 82 (2d Cir. 2012) (holding that plaintiff’s sworn 15

statements that her supervisor engaged in intentionally intrusive conduct and 16

thrice touched her breasts precluded summary judgment). 17

The District Court correctly dismissed Hand’s ADA claim as unexhausted, 18

because she did not claim discrimination on the basis of her disability in either 19

her initial or amended NYSDHR complaint, and because Hand’s claim was not 20

reasonably related to her claims of race and sex discrimination. See Shah v. N.Y. 21

State Dep’t of Civil Serv., 168 F.3d 610, 613

‐ 14 (2d Cir. 1999). 22

1 Although the ALJ found Hand’s allegations to be spurious based on the

evidence presented at the pre

‐ termination hearing, these findings are not given

preclusive effect. See Kosakow v. New Rochelle Radiology Assocs., P.C., 274

F.3d 706, 728 (2d Cir. 2001).4 Finally, the District Court properly denied Hand’s motion for relief from 1

the pre

‐ termination administrative decisions. The Federal Rules of Civil 2

Procedure apply only to civil proceedings in federal district court and in certain 3

other circumstances not present here. See Fed. R. Civ. P. 1, 81(a). To the extent 4

that Hand seeks to challenge the pre

‐ termination administrative decisions on 5

procedural due process grounds, her challenge fails because she was provided 6

notice of the charges against her and given an opportunity to be heard at the pre

‐ 7

termination hearing, and New York provides an adequate post

‐ deprivation 8

remedy in the form of an Article 78 proceeding. See Locurto v. Safir, 264 F.3d 9

154, 171, 175 (2d Cir. 2001). 10

We have considered Hand’s remaining arguments and conclude that they 11

are without merit. For the foregoing reasons, we VACATE and REMAND with 12

respect to Hand’s Title VII hostile work environment claim, and otherwise 13

AFFIRM the judgment of the District Court. 14

FOR THE COURT: 15

Catherine O’Hagan Wolfe, Clerk of Court 16