     14-2438-cv
     Harris v. New York State Department of Correctional Services

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of June, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       GREGORY G. HARRIS, as Trustee of
13       Kathleen A. Demas’s Bankruptcy
14       Estate,
15                Plaintiff-Appellant,
16
17                    -v.-                                               14-2438-cv
18
19       NEW YORK STATE DEPARTMENT OF
20       CORRECTIONAL SERVICES, BRIAN FISCHER,
21       in his official capacity as the
22       Commissioner of the New York State
23       Department of Correctional Services,
24       MICHAEL WAITE, in his individual
25       capacity,
26                 Defendants-Appellees.
27       - - - - - - - - - - - - - - - - - - - -X
28

                                                  1
 1   FOR APPELLANT:             DANIEL A. JACOBS (Ronald G.
 2                              Dunn, on the brief), Gleason,
 3                              Dunn, Walsh & O’Shea, Albany,
 4                              New York.
 5
 6   FOR APPELLEES:             JONATHAN D. HITSOUS (Barbara D.
 7                              Underwood & Andrea Oser, on the
 8                              brief), for Eric T.
 9                              Schneiderman, Attorney General
10                              of the State of New York,
11                              Albany, New York.
12
13                              ROBERT M. WINN, Granville, New
14                              York.
15
16        Appeal from a judgment of the United States District
17   Court for the Northern District of New York (Sharpe, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        Plaintiff Gregory G. Harris appeals from the judgment
24   of the United States District Court for the Northern
25   District of New York (Sharpe, J.), granting summary judgment
26   in favor of defendants the New York State Department of
27   Correctional Services and Brian Fischer (collectively, “the
28   Department”) and correction officer Michael Waite. We
29   assume the parties’ familiarity with the underlying facts,
30   the procedural history, and the issues presented for review.
31
32        Harris, the trustee of the bankruptcy estate of
33   Kathleen A. Demas, alleges that: (1) the Department
34   discriminated against Demas on the basis of her sex and
35   retaliated against her, in violation of Title VII, 42 U.S.C.
36   §§ 2000e-2, 2000e-3, and (2) Waite aided and abetted the sex
37   discrimination, in violation of the New York State Human
38   Rights Law, N.Y. Exec. Law § 296. We review de novo the
39   grant of summary judgment. Pucino v. Verizon Wireless
40   Commc’ns, Inc., 618 F.3d 112, 117 (2d Cir. 2010). We affirm
41   for substantially the reasons set forth in the district
42   court’s well-reasoned opinion.
43
44        The sex discrimination and aiding-and-abetting claims
45   fail for a common reason: there is no record evidence from
46   which it could be inferred that Demas’s sex played any role
47   in the way she was treated by Waite or anyone else. A

                                  2
 1   hostile work environment claim based on sex discrimination
 2   requires evidence that “the hostile or abusive treatment was
 3   because of . . . sex.” Redd v. New York Div. of Parole, 678
 4   F.3d 166, 175 (2d Cir. 2012) (emphasis added). The record
 5   lacks such evidence, and Demas admits that her treatment by
 6   Waite (and others) was motivated by other things,
 7   principally disagreement over security policy and Waite’s
 8   resentment that Demas testified against him at a
 9   disciplinary proceeding. Without evidence of
10   discrimination, the aiding-and-abetting claim against Waite
11   also fails. N.Y. Exec. Law § 296(6); see also Murphy v. ERA
12   United Realty, 674 N.Y.S.2d 415, 417 (App. Div. 2d Dep’t
13   1998) (“It is the employer’s participation in the
14   discriminatory practice which serves as the predicate for
15   the imposition of liability on others for aiding and
16   abetting.”).
17
18        The retaliation claim fails because there is no
19   evidence that Demas engaged in a protected activity: she
20   never complained of sexual harassment or sex discrimination,
21   nor did she subjectively believe that her sex played a role
22   in her termination.1 See Kelly v. Howard I. Shapiro &
23   Associates Consulting Engineers, P.C., 716 F.3d 10, 14 (2d
24   Cir. 2013) (“An employee’s complaint may qualify as
25   protected activity . . . so long as the employee has a good
26   faith, reasonable belief that the underlying challenged
27   actions of the employer violated [Title VII].” (citation and
28   internal quotation marks omitted)). Demas asserts that she
29   now holds such a belief, but that post-termination insight
30   cannot bear upon whether she engaged in a protected activity
31   before being terminated.
32
33        Harris argues that retaliation can be shown where the
34   employer knew or should have known that the actions
35   complained of by the employee were based on sex, even if the
36   employee did not. He offers no authority for such a claim,
37   and in any event, there is no evidence from which a
38   reasonable jury could make such a finding.
39




         1
              There is, moreover, no record evidence that sex
     actually played such a role. Thus, any discriminatory
     termination claim Harris might seek to plead is futile.
                                  3
1        For the foregoing reasons, and finding no merit in
2   Harris’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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