12-2866-cv
Rosioreanu v. City of New York


                                  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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th
day of May, two thousand thirteen.

PRESENT:
            PIERRE N. LEVAL,
            JOSÉ A. CABRANES,
            BARRINGTON D. PARKER,
                         Circuit Judges.
_____________________________________

CLEOPATRA ROSIOREANU,

                   Plaintiff-Appellee,

                             v.                                             No. 12-2866-cv

CITY OF NEW YORK,

                   Defendant-Appellant,

JAMES MAHANEY, ROY DURIG,

            Defendants.
_____________________________________

FOR DEFENDANT-APPELLANT:                                    ELLEN S. RAVITCH (Pamela S.
                                                            Dolgow, Eric Eichenholtz, Amy J.
                                                            Kessler, on the brief), for Michael A.
                                                            Cardozo, Corporation Counsel of the
                                                            City of New York, New York, NY.
FOR PLAINTIFF-APPELLEE:                                          CLEOPATRA ROSIOREANU, pro se,
                                                                 Astoria, NY.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Lois Bloom, Magistrate Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED and the cause is
REMANDED with instructions to enter judgment as a matter of law in favor of the City of New
York.

         Defendant-appellant City of New York (the “City”) appeals from an order denying its
renewed motion for judgment as a matter of law or a new trial, filed pursuant to Rules 50(b) and 59
of the Federal Rules of Civil Procedure, following a jury trial in which plaintiff-appellee Cleopatra
Rosioreanu prevailed on her retaliation claim. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

                                            DISCUSSION

                                                    A.

         This Court reviews de novo the denial of a Rule 50(b) motion, reviewing the evidence in the
light most favorable to the non-moving party. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133
(2d Cir. 2008). When considering the evidence associated with a Rule 50(b) motion, the trial court
may not “weigh evidence, assess credibility, or substitute its opinion of the facts for that of the jury,”
Vt. Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996), and may grant the motion only when
there is “either an utter lack of evidence supporting the verdict, so that the jury’s findings could only
have resulted from pure guess-work, or the evidence [is] so overwhelming that reasonable and fair-
minded persons could only have reached the opposite result,” Doctor’s Assocs., Inc. v. Weible, 92 F.3d
108, 112 (2d Cir. 1996) (internal quotation marks and citation omitted).

                                                    B.

        To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) that she
was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the
employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that
there was a causal connection between the protected activity and the adverse action. See Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).


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         In Galdieri-Ambrosini v. National Realty & Development Corporation, 136 F.3d 276 (2d Cir. 1998),
we ruled that “implicit in the requirement that the employer [was] aware of the protected activity is
the requirement that the [employer] understood, or could have reasonably understood,” that the
plaintiff’s complaints, constituting the protected activity, were based on conduct prohibited by Title
VII. See id. at 292. In particular, we upheld a district court’s grant of a Rule 50(b) motion because
the female plaintiff’s complaints1 “did not state that [she] viewed [a male supervisor’s] actions as
based on her gender, and there was nothing in her protests that could reasonably have led [the
company] to understand that that was the nature of her objections.” Id.

        Here, as in Galdieri-Ambrosini, no evidence presented at trial permitted a jury reasonably to
infer that the City had notice (or should have had notice) that Rosioreanu believed that the conduct
of which she complained was based on her sex. As the District Court noted, Rosioreanu had not
“explicitly refer[red] to gender” or sex discrimination in those complaints, nor was any
“quintessentially gender-based conduct” involved. Special App’x 18. Put another way, Rosioreanu’s
complaints could easily have described a conflict between co-workers of any sex―regardless of the
presence or absence of discriminatory animus―and, in these circumstances, we cannot agree with
the District Court that the jury could infer that Rosioreanu’s complaints related to sex discrimination
as a matter of “credibility.”

        Although this case arguably presents a closer set of circumstances than Galdieri-Ambrosini, the
evidence was not sufficient for a jury to conclude that the City had notice (or should have had
notice) that Rosioreanu believed that the conduct of which she complained was based on her sex.

                                                  CONCLUSION

        Accordingly, the District Court’s judgment is VACATED and the cause is REMANDED
for entry of judgment as a matter of law in favor of the City of New York. Because the City of New
York seeks a new trial solely as alternative relief regarding damages, we do not order a new trial.

                                                                           FOR THE COURT:
                                                                           Catherine O’Hagan Wolfe, Clerk




1 Specifically, the plaintiff in Galdieri-Ambrosini complained to her supervisors that (1) two other female employees were
“slackers,” and (2) she “ha[d] to do work on [a male supervisor’s] personal matters.” Galdieri-Ambrosini, 136 F.3d at 292.
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