12-462-cv Christensen v. Cnty. of Dutchess 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th** **day of November, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **BARRINGTON D. PARKER,** 7 **DENNY CHIN,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **MAUREEN CHRISTENSEN,** 12 13 **Plaintiff-Appellant ,**  14 15 **-v.- No. 12-462-cv** 16 17 **COUNTY OF DUTCHESS, NEW YORK, ADRIAN** 18 **ANDERSON, DUTCHESS COUNTY SHERIFF, THE** 19 **DUTCHESS COUNTY SHERIFF’S DEPARTMENT,** 20 **MARK BATTISTONI,** 21 22 **Defendants-Appellees ,**  23 24 **and** 25 26 **DONALD CUMMINGS,** 27 28 **Defendant .**  29 - - - - - - - - - - - - - - - - - - - -X 30

1**FOR PLAINTIFF-APPELLANT:** 1 2 3 4 **FOR DEFENDANTS-APPELLEES** 5 **COUNTY OF DUTCHESS, NEW** 6 **YORK, ADRIAN ANDERSON,** 7 **DUTCHESS COUNTY SHERIFF,** 8 **and THE DUTCHESS COUNTY** 9 **SHERIFF’S DEPARTMENT:** 10 11 **FOR DEFENDANT-APPELLEE MARK** 12 **BATTISTONI:** 13 ROBERT N. ISSEKS (Alex Smith, on the brief ), Middletown, NY. MICHAEL A. MIRANDA, Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY.

MARK BATTISTONI, pro se , Millbrook, NY.

14 Appeal from a judgment of the United States District 15 Court for the Southern District of New York (Smith, Mag. 16 J. ). 17 18 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 19 **AND DECREED**that the judgment of the district court be 20 **AFFIRMED**

. 21 22 Maureen Christensen appeals from the (1) dismissal of 23 her equal protection claim and (2) denial of her motion for 24 a new trial on her remaining substantive due process claim. 25 We assume the parties’ familiarity with the underlying 26 facts, the procedural history, and the issues on appeal. 27 1. Equal Protection Claim. After the jury heard all 28 the trial evidence but before it returned a verdict, the 29 district court dismissed Christensen’s equal protection 30 claim for lack of evidence of sex discrimination. We review 31 de novo , seePeters v. Baldwin Union Free School Dist. , 320 32

2F.3d 164, 167 (2d Cir. 2003), and uphold the district 1 court’s dismissal only if the record reveals no “legally 2 sufficient evidentiary basis” for “a reasonable jury” to 3 return a verdict in favor of Christensen, Fed. R. Civ. P. 4 50(a)(1). 5 As the district court recognized, Christensen failed to 6 introduce evidence that any actionable discrimination or 7 harassment was motivated by her sex. The evidence suggested 8 that Christensen was subjected to rumors and investigated 9 because of (1) a potentially inappropriate relationship with 10 an inmate, and (2) the intense animosity between her husband 11 and Mark Battistoni, who allegedly spread the rumors. As 12 the district court concluded, “this had to do with behavior” 13 and not “with gender.” Our reasoning in Brown v. Henderson 14 is instructive: “[T]here is overwhelming evidence that the 15 hostility toward [plaintiff] was grounded in workplace 16 dynamics unrelated to her sex and that even [harassing] 17 pictures did not reflect an attack on [plaintiff] as a 18

woman .” 257 F.3d 246, 255-56 (2d Cir. 2001). 1 19

1 Christensen cites to cases from outside this circuit that acknowledge the “stereotypical notion that a woman will use sex to advance in the work place,” Appellant’s Br. at 36, and conclude that rumors based on this stereotype may constitute sex discrimination. SeeSpain v. Gallegos , 26 F.3d 439, 448 (3d Cir. 1994). But it is a long way from
32. Motion for New Trial. Christensen’s remaining due 1 process claim went to the jury, which unanimously answered 2 “no” to the question of whether Christensen “established, by 3 a preponderance of the evidence, that a Dutchess County 4 employee . . . uttered statements about [her] that were 5 injurious to [her] reputation, that were made public, and 6 that [she] claims were false.” Christensen did not object 7 to the jury instructions and therefore waived any objections 8 to their form. SeeLavoie v. Pac. Press & Shear Co. , 975 9 F.2d 48, 55 (2d Cir. 1992) (“Failure to object to a jury 10 instruction or the form of an interrogatory prior to the 11 jury retiring results in a waiver of that objection.”). The 12 district court denied Christensen’s motion for a new trial 13 based on the court’s “best recollection of the evidence, and 14 its own observations of the testimony offered at trial.” 15 “The court may, on motion, grant a new trial on all or 16 some of the issues . . . after a jury trial, for any reason 17 for which a new trial has heretofore been granted in an 18

such a stereotype to the one Christensen says motivated discrimination in her case: “that a female jail official who is repeatedly alone with a male prisoner for long periods of time must be having sex with that prisoner.” Appellant’s Br. at 36. The entirely legitimate concernthat a jail official, of either sex, may be engaged in an unusual and inappropriate relationship with an inmate has little to do with the kind of discriminatory sex stereotyping in Spain

. 4action at law in federal court.” Fed. R. Civ. P. 1 59(a)(1)(A). “[F]or a district court to order a new trial 2 under Rule 59(a), it must conclude that the jury has reached 3 a seriously erroneous result or the verdict is a miscarriage 4 of justice, i.e. , it must view the jury’s verdict as against 5 the weight of the evidence.” Manley v. AmBase Corp. , 337 6 F.3d 237, 245 (2d Cir. 2003) (internal quotation marks and 7 alteration omitted). Because we accord a “high degree of 8 deference” to the “jury’s evaluation of witnesses 9 credibility, . . . jury verdicts should be disturbed with 10 great infrequency.” Raedle v. Credit Agricole Indosuez , 670 11 F.3d 411, 418-19 (2d Cir. 2012); see alsoDLC Mgmt. Corp. v. 12 Town of Hyde Park , 163 F.3d 124, 134 (2d Cir. 1998) (“[T]he 13 court should only grant such a motion when the jury’s 14 verdict is ‘egregious.’”). A district court’s “denial of a 15 motion to set aside a verdict as against the weight of the 16 evidence . . . is not subject to appellate review.” 17 Lightfoot v. Union Carbide Corp. , 110 F.3d 898, 910 (2d Cir. 18 1997). Instead, “the loser’s only appellate recourse is to 19 challenge the legal sufficiency of the evidence.” Stonewall 20 Ins. Co. v. Asbestos Claims Mgmt. Corp. , 73 F.3d 1178, 1199 21 (2d Cir. 1995). 22

5Christensen does not demonstrate that the jury reached 1 a seriously erroneous result or that the verdict was a 2 miscarriage of justice. The jury could reasonably have 3 found that Christensen failed to establish by a 4 preponderance of the evidence that a Dutchess County 5 employee uttered statements injurious to her reputation. 6 The jury heard evidence that Christensen’s professional 7 reputation was unimpaired because she was due to retire 8 anyway and successfully established a private practice post9 retirement. In light of its verdict in favor of Battistoni, 10 the jury could reasonably have concluded that Christensen 11 did engage in inappropriate conduct with an inmate, and that 12 it was this conduct rather than any statements by others 13 that injured her reputation. Regardless of why the jury 14 answered the way it did, it had enough evidence before it to 15 arrive at that answer. 16 We have considered all of Christensen’s remaining 17 arguments and conclude that they are without merit. The 18 judgment of the district court is hereby affirmed. 19 20 FOR THE COURT: 21 CATHERINE O’HAGAN WOLFE, CLERK 22 23

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