     16-3264
     Kimball v. Vill. of Painted Post

                                             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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 11th day of June, two thousand eighteen.
 4
 5   PRESENT:
 6              GERARD E. LYNCH,
 7              SUSAN L. CARNEY,
 8                          Circuit Judges,
 9              ALVIN K. HELLERSTEIN,*
10                          District Judge.
11   _________________________________________
12
13   CODY A. KIMBALL,
14
15                        Plaintiff-Appellant,
16
17                                      v.                                               No. 16-3264-cv
18
19   VILLAGE OF PAINTED POST, TODD KIMMEY,
20   OFFICER, MAYOR FRANKLIN, JOHN & JANE DOES,
21   DONALD YOST, ROBERT HALM, in his individual and
22   official capacities as Chief of Police,
23
24              Defendants-Appellees.ǂ
25   _________________________________________
26


     * Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York,
     sitting by designation.
     ǂ
       The Clerk of Court is directed to amend the caption to conform to the above.
 1   FOR PLAINTIFF-APPELLANT:                            A.J. BOSMAN, Bosman Law Firm, L.L.C.,
 2                                                       Rome, NY.
 3
 4   FOR DEFENDANTS-APPELLEES
 5   VILLAGE OF PAINTED POST,
 6   TODD KIMMEY, OFFICER,
 7   MAYOR FRANKLIN, and ROBERT
 8   HALM, in his individual and official
 9   capacities as Chief of Police:                      JEREMY J. HOURIHAN, Barclay Damon,
10                                                       LLP, Elmira, NY.
11
12   FOR DEFENDANT-APPELLEE
13   DONALD YOST:                                        JAMES S. WOLFORD, The Wolford Law
14                                                       Firm LLP, Rochester, NY.
15
16          Appeal from a judgment of the United States District Court for the Western District
17   of New York (Siragusa, J.).

18          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
19   ADJUDGED, AND DECREED that the judgment entered on August 22, 2016, is
20   AFFIRMED.

21          Plaintiff Cody Kimball appeals the District Court’s grant of summary judgment to
22   Defendants on her claims brought under Title VII and the New York State Human Rights
23   Law (“NYSHRL”). Kimball claims that she was subjected to unlawful discriminatory and
24   retaliatory treatment during her employment as a police officer for the Village of Painted
25   Post from 2005 through 2008, and that the District Court erred when it concluded that the
26   predominant facts on which she relied fell outside the statutory time period. She also argues
27   that the District Court erred when it found that the statute of limitations applicable to the
28   NYSHRL was not tolled during the pendency of her employment discrimination complaint
29   before the Equal Employment Opportunity Commission (“EEOC”) and, therefore, that her
30   NYSHRL claims for individual liability against Donald Yost are untimely. We review an
31   award of summary judgment de novo, Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11,
32   19 (2d Cir. 2014), and assume the parties’ familiarity with the underlying facts, the procedural
33   history of the case, and the issues on appeal, to which we refer only as necessary to explain
34   our decision to affirm.
                                                    2
 1

 2      I.      Title VII Claims

 3           To bring an employment discrimination claim in court under Title VII, an employee
 4   must first exhaust her administrative remedies by filing a complaint with the EEOC. Deravin
 5   v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). A complaint alleging employment discrimination
 6   must be filed with the EEOC within 300 days of the discriminatory conduct. 42 U.S.C.
 7   § 2000e-5(e)(1). Because Kimball filed her EEOC complaint on September 9, 2008, she
 8   cannot recover for “discrete acts of discrimination or retaliation” that occurred before
 9   November 14, 2007. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).

10      A. Hostile work environment

11           Kimball alleges that, during the full course of her employment at the Painted Post
12   Police Department (the “Department”) from 2005 to 2008, she experienced a hostile work
13   environment on account of her sex, and that the Village of Painted Post (the “Village”) is
14   liable therefor under Title VII.

15           As described above, Kimball may not recover for “discrete acts” that occurred before
16   November 14, 2007. Hostile work environment claims, however, are “composed of a series
17   of separate acts that collectively constitute one ‘unlawful employment practice.’” Morgan, 536
18   U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)). Accordingly, a court may consider all of the
19   acts that allegedly constitute the “unlawful employment practice” as long as at least one such
20   act occurred within the 300-day time period. Id. Under this framework—known as the
21   “continuing violation doctrine”—the proper inquiry for determining the timeliness of claims
22   regarding acts that predate the 300-day cutoff is whether those acts are “part of the same
23   actionable hostile work environment practice” as an act occurring after the cut off. Id. at 120.
24   Separate acts are not properly treated as part of a single hostile work environment practice if
25   they are “qualitatively different” from one another. Fitzgerald v. Henderson, 251 F.3d 345, 364
26   (2d Cir. 2001).

27           Kimball argues that the harassment she experienced during her time at the Painted
28   Post Police Department constitutes a single actionable hostile work environment practice.
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 1   The acts that took place during defendant Donald Yost’s tenure as Chief of Police in 2005
 2   and 2006, however, differ significantly from the acts that took place after Yost’s retirement
 3   on December 31, 2006. Yost engaged in a variety of harassing and even abusive behaviors
 4   toward Kimball during his tenure as Chief, such as “scream[ing]” at her “all the time,” calling
 5   her offensive names, and, egregiously, pushing her into filing cabinets and choking her at the
 6   police station in late 2006—the act that led to his departure from the Department at the end
 7   of that year. See App’x at 747-48, 752-53. After Yost’s retirement—or, at the very latest, after
 8   the Village police station’s locks were changed in March 2007 to prevent Yost from entering
 9   the police station at will—that aggressive and abusive behavior toward her at the
10   Department ceased. Kimball does not allege that, after Yost’s retirement, she was
11   “screamed” at, subjected to slurs about her gender, or physically assaulted at work. Rather,
12   her claims for the subsequent period arise from incidents regarding overtime, discipline, and
13   other issues described below. Accordingly, we conclude that the work environment practices
14   that existed before Yost’s retirement are “qualitatively different” from those that Kimball
15   describes as occurring after his retirement, and her claims arising out of Yost’s pre-
16   retirement harassment are not timely.

17          This is not to say that Yost’s pre-retirement harassment of Kimball is irrelevant to the
18   remainder of her hostile work environment claim. The 2005 and 2006 events provide
19   context for understanding Kimball’s work environment as it was in 2007 and 2008. See
20   Fitzgerald, 251 F.3d at 365 (finding time-barred events occurring during “Phase One” of
21   plaintiff’s alleged hostile work environment admissible to place “Phase Two” events in
22   context). To recover on a claim for employment discrimination under Title VII, however,
23   Kimball must establish that she experienced acts of discrimination after Yost’s retirement
24   that, on their own, are sufficiently “severe or pervasive” to constitute a hostile work
25   environment, and that the Village is liable for those acts. Duch v. Jakubek, 588 F.3d 757, 762
26   (2d Cir. 2009); Fitzgerald, 251 F.3d at 361-64.

27          Accordingly, we consider whether Kimball was subject to at least one act after
28   November 14, 2007, that might reasonably be considered part of a “severe or pervasive”
29   hostile work environment practice. Kimball asserts that her co-workers’ alleged practice of
                                                       4
 1   viewing pornography at the police station on the two shared department computers
 2   constitutes such an act. We have held that the presence of pornography in the workplace
 3   may provide a basis for a hostile work environment finding. Patane v. Clark, 508 F.3d 106,
 4   114 (2d Cir. 2007).

 5          On this record, however, Kimball has failed to establish that any such incident
 6   occurred that was part of a practice that was either severe or pervasive enough for a
 7   reasonable jury to find that she experienced a hostile work environment after Yost’s
 8   retirement. Notably, Kimball did not testify that she saw pornographic images at her
 9   workplace after Yost retired. Instead, she averred that she discovered evidence suggesting
10   that male officers were viewing pornography: she testified that, on “many” unspecified
11   occasions in 2007 and 2008, she saw pornographic windows minimized on the toolbar of the
12   computers at the police station, and the URLs of pornographic websites on occasion
13   autopopulated when she used the work computers. App’x at 698-99. Her testimony is vague
14   and conclusory, however. Although she testified that, on unspecified occasions,
15   pornographic URLs autopopulated on the Department computers, the record does not
16   suggest that these URLs were particularly graphic or degrading to women, nor does she
17   describe the import of the URLs. The record falls short of supporting an inference of the
18   severity needed to sustain her claims.

19          Nor does the record support an inference that the pornography-viewing practice of
20   which Kimball complains was “pervasive.” Kimball identified only two specific instances in
21   two years in which she discovered evidence suggesting that other officers were viewing
22   pornography on the Department’s computers (one in February 2007 and one on May 26,
23   2008). Although she testified that she saw such evidence of viewing pornography “many
24   times,” her testimony is nonspecific and provides an inadequate basis for a jury
25   determination that her colleagues’ viewing was so common in the workplace as to be nearly
26   inescapable—in which case a hostile work environment may have existed—or whether
27   Kimball saw it on a number of occasions, but infrequently over the full course of her
28   employment at the Department. See App’x at 698. Accordingly, Kimball has not provided an
29   adequate basis for a reasonable jury to find a hostile work environment.
                                                   5
 1          Contrary to Kimball’s claims, Yost’s post-retirement actions do not bolster her
 2   argument that she experienced an actionable hostile work environment in the Department
 3   after November 14, 2007. Certainly, Yost’s reported post-retirement behavior—driving
 4   “slowly” past her while staring at her and making faces during Kimball’s middle-of-the-night
 5   patrol shifts, and sitting outside Kimball’s house in his car with his camera aimed at the
 6   house, App’x at 785—would be disturbing to a reasonable person, particularly in light of his
 7   alleged behavior pre-retirement. Kimball has not, however, adduced evidence demonstrating
 8   that the Village may be held liable for any post-retirement harassment perpetrated by Yost.
 9   Nothing in the record suggests that his actions were undertaken in his capacity as a
10   consultant to the Department. On the contrary, the uncontroverted evidence is that the
11   Department never consulted with Yost during the three-year period in which it paid him as a
12   consultant. And, unlike those cases in which courts have found employers liable for the
13   harassing actions of non-employees, here the Department had only the standard policing
14   tools at its disposal; it had no special control over Yost’s private activities that it could have
15   used to protect Kimball. See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013)
16   (finding that university-employer could be liable for actions of student-athletes because the
17   university had a “high degree of control” over their behavior); Lockard v. Pizza Hut, Inc., 162
18   F.3d 1062, 1073-74 (10th Cir. 1998) (finding restaurant-employer liable for harassing actions
19   of customers because it could have asked customers to leave workplace).

20          Accordingly, we conclude that the record evidence is inadequate to establish the
21   existence of a hostile work environment in the period after November 14, 2007 until her
22   resignation. The District Court correctly dismissed Kimball’s claim on that basis.

23      B. Other allegations of sex discrimination

24          Kimball’s other sex discrimination claims against the Village under Title VII are
25   subject to the McDonnell Douglas burden-shifting framework. Kirkland v. Cablevision Sys., 760
26   F.3d 223, 225 (2d Cir. 2014) (per curiam) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
27   792, 802 (1973)). To prevail, Kimball must first establish a prima facie case of sex
28   discrimination by showing “(1) that she is a member of a protected class; (2) that she was
29   qualified for employment in the position; (3) that she suffered an adverse employment
                                                      6
 1   action; and, in addition, has (4) some minimal evidence suggesting an inference that the
 2   employer acted with discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297,
 3   307 (2d Cir. 2015). Once she makes that showing, “the burden then shifts to the [Village] to
 4   give a legitimate, non-discriminatory reason for its actions. If the [Village] does so, the
 5   burden then shifts back to the plaintiff to show that the [Village’s] explanation is a pretext
 6   for [sex] discrimination or retaliation.” Kirkland, 760 F.3d at 225 (internal citation omitted).

 7           Kimball identifies four employment actions taken by the Department that she
 8   contends were adverse and the result of unlawful sex discrimination: she alleges that (1) she
 9   received lower pay than similarly situated male officers; (2) she was unfairly reprimanded;
10   (3) in 2008, the amount of overtime that she received decreased significantly; and (4) unlike
11   other officers, she was not fitted for a bulletproof vest.1

12           Kimball’s first argument, regarding an asserted pay differential, is barred by the
13   release that she signed in May 2008 in consideration of a $1,250 settlement payment by the
14   Village. In that release, she agreed not to pursue all “past claims for wages[] and benefits as a
15   Village employee, whether contractual or not.” App’x at 199. Kimball argues that the release
16   is unenforceable because she signed it under the influence of narcotic medication. But under
17   New York law, voiding the agreement would require Kimball to return the consideration
18   paid by the Village. See Kamerman v. Curtis, 285 N.Y. 221, 225-26 (1941). Kimball admits that
19   she has not done so. Accordingly, even if the release might at one time have been voidable, it
20   is still in effect and bars this claim.2


     1 During oral argument, Kimball’s counsel referred to an additional alleged act of discrimination, one not
     mentioned in her brief: that she received a cardboard sign for her locker instead of an enamel one. Even were
     we to treat this claim as preserved, the act alleged does not constitute an “adverse employment action”
     because it did not “affect[ ] the terms, privileges, duration, or conditions of [Kimball’s] employment.” Yerdon
     v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) (internal quotation marks omitted).

     2Kimball also argues that Defendants waived any defense predicated on the release by failing to plead it as an
     affirmative defense. Kimball herself, however, failed to argue waiver in the District Court, thus forfeiting the
     point on appeal. In any event, we have generally permitted district courts to entertain unpleaded affirmative
     defenses at the summary judgment stage “in the absence of undue prejudice to the plaintiff, bad faith or
     dilatory motive on the part of the defendant, futility, or undue delay of the proceedings.” Saks v. Franklin
     Covey Co., 316 F.3d 337, 350 (2d Cir. 2003); see also Rose v. AmSouth Bank of Fla., 391 F.3d 63, 65 (2d Cir. 2004).
     Because Kimball does not allege that she was unduly prejudiced by Defendants’ failure or that the Village
     acted in bad faith, we will not disregard Defendants’ arguments regarding the effect of the release.
                                                             7
 1           As to the three remaining allegedly discriminatory acts, Kimball has failed to submit
 2   even “minimal evidence” that her treatment was attributable to a discriminatory motivation.
 3   Littlejohn, 795 F.3d at 307. Kimball does not dispute that she committed the acts that gave
 4   rise to reprimands, or that the acts violated Department rules. Instead, she argues that she
 5   was treated differently for those violations than were the male officers who engaged in
 6   similar violations. For example, she argues that she was reprimanded for leaving a fork in a
 7   patrol vehicle, and that a male officer did not receive an equivalent reprimand for leaving a
 8   knife in a patrol vehicle on a later occasion. The record, however, does not bear this claim
 9   out. The evidence established that the male officer in question received a Counseling
10   Memorandum regarding his actions, and the record contains no evidence that the male
11   officer’s reprimand was not substantially equivalent to the reprimand received by Kimball.3
12   Nor does Kimball’s tentative suggestion that she, and not the male officer, may have lost a
13   vacation day for the infraction suffice to create a genuine dispute of material fact.

14           The record is also devoid of evidence supporting an inference that Kimball was
15   denied overtime shifts or a properly-fitted vest because of her sex. No evidence suggests that
16   Kimball lost more overtime in 2008 than did male officers. In fact, with regard to overtime
17   shifts during “Colonial Days”—the only specific example of overtime denial adduced by
18   her—Kimball testified simply that she was “away” during the sign-up and that all overtime
19   shifts were full when she returned. App’x at 767. As to the vest, she testified that she was
20   also on vacation when the Department conducted fittings, and was permitted to send in her
21   own measurements to obtain a fitted vest. We have been directed to no evidence suggesting
22   that the Department was motivated by a discriminatory animus in either instance.

23




     3 Kimball’s assertion that the male officer was not actually punished, or that his punishment was delayed, is
     unsupported by the record. Kimball testified in support of her assertion that she did not find the Counseling
     Memorandum, which is dated May 30, 2008, in the male officer’s file when she left her employment in June
     2008. She fails to explain, however, how she accessed his file or why she would have been able to locate
     reprimands issued to her co-workers in any event, leaving undisputed the evidence that her male colleague
     was in fact censured.
                                                           8
 1      C. Retaliation

 2            Retaliation claims under Title VII are also governed by the McDonnell Douglas burden-
 3   shifting framework. Kirkland, 760 F.3d at 225. To make out a prima facie case of retaliation,
 4   the plaintiff must show (1) “participation in a protected activity,” (2) “the defendant’s
 5   knowledge of the protected activity,” (3) “an adverse employment action,” and (4) “a causal
 6   connection between the protected activity and the adverse employment action.” Zann Kwan
 7   v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (internal quotation marks omitted).
 8   After a plaintiff establishes a prima facie case, the burden shifts to the employer to establish
 9   a non-discriminatory reason for its actions.

10            Kimball identifies a number of allegedly retaliatory “adverse employment actions”
11   taken by the Department, including her reassignment from a Step 7 to the lower Step 6 on
12   the Department’s salary scale and her receipt of fewer overtime shifts in 2008 than in prior
13   years. Many of these actions took place during Yost’s tenure as chief and, thus, claims related
14   to them are time-barred under the 300-day rule described above. To the extent that Kimball
15   identifies adverse actions that are not time-barred, she has again failed to establish a causal
16   connection between those actions and any particular protected activity. The District Court
17   properly granted summary judgment to Defendants on Kimball’s Title VII retaliation claim.

18      II.      NYSHRL Claims

19            Claims brought under the NYSHRL are subject to a three-year statute of limitations.
20   Koerner v. State of New York, 62 N.Y.2d 442, 446 (1984). The District Court concluded that
21   Kimball’s NYSHRL claims were untimely because Kimball filed her complaint in court on
22   May 21, 2012—more than three years after her employment with the Department ended.
23   Kimball argues that the statute of limitations for her NYSHRL claims should be tolled
24   during the three-and-one-half year period during which her discrimination charge was
25   pending before the EEOC. She maintains that her complaint was “automatically dual-filed”
26   with the NYSDHR under a Worksharing Agreement between the EEOC and the New York
27   State Division on Human Rights (“NYSDHR”) and because she checked a box on a filing
28   form directing the dual filing. Appellant’s Br. at 15-16. Under her theory, the three-year

                                                     9
 1   statute of limitations period on her NYSHRL claims did not run between September 9,
 2   2008, and February 23, 2012, and claims based on events occurring after December 7, 2005,
 3   should be considered timely.

 4            It is unnecessary, however, for us to address the merits of Kimball’s tolling argument
 5   because, even if the District Court erred in concluding that the filing of charges with the
 6   EEOC did not affect the timeliness of state claims, Kimball’s EEOC complaint did not give
 7   specific notice of her NYSHRL claims against Yost.4 In fact, Kimball’s September 9, 2008
 8   EEOC complaint does not reference Yost at all.5 Our view about the scope of Kimball’s
 9   EEOC complaint is reinforced by the fact that Yost was never served with a copy of it, even
10   though New York law requires the NYSDHR to serve a copy of the complaint “upon the
11   respondent and all persons it deems to be necessary parties” in the course of making a
12   “prompt investigation” of the allegations therein. N.Y. Exec. Law § 297(2)(a). We thus read
13   Kimball’s EEOC complaint not to include any state law claim against Yost individually.

14            Thus, we conclude that the statute of limitations ran on Kimball’s NYSHRL claims
15   against Yost during the time her complaint was pending before the EEOC from 2008 to
16   2012. Accordingly, the three-year limitations period had lapsed by May 21, 2012, when
17   Kimball filed her complaint.

18                                                          * * *


     4Although, in her Complaint, Kimball pleaded claims under the NYSHRL against all Defendants, she does
     not discuss her claims against Defendants other than Yost in her briefs on appeal. She therefore has
     abandoned her NYSHRL claims against other Defendants. See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d
     Cir. 2012); Hughes v. Bricklayers and Allied Craftworkers Local No. 45, 386 F.3d 101, 104 n.1 (2d Cir. 2004).

     5 Although the August 11, 2008 letter submitted by Kimball’s lawyer to the EEOC contains references to
     Yost’s harassing behavior, that letter is not an EEOC charge within the meaning of 42 U.S.C. § 2000e-5. An
     EEOC charge must be sworn, 42 U.S.C. § 2000e-5(b), and the EEOC will not call for a response to a
     complaint until such verification is provided, Edelman v. Lynchburg Coll., 535 U.S. 106, 113-18 (2002). Kimball
     never verified the allegations about Yost contained in her lawyer’s August 11, 2008 letter. (Kimball’s lawyer
     included a “Verification” with the letter, but it is plain from their substance he did not have personal
     knowledge of the facts asserted in the letter.) Unsworn allegations may amend an EEOC charge only “insofar
     as they ‘clarify and amplify allegations made’ in the original charge or ‘alleg[e] additional acts which constitute
     unlawful employment practices related to or growing out of the subject matter of the original charge.’” Holtz
     v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001) (quoting 29 C.F.R. § 1601.12(b)) (alteration in original).
     Accordingly, our analysis of the scope of Kimball’s EEOC complaint is limited to the conduct described in
     her September 9, 2008 complaint.
                                                              10
1          We have considered the remainder of Appellant’s arguments and conclude that they
2   fail to provide grounds for vacating the District Court’s judgment. Accordingly, the
3   judgment of the District Court is AFFIRMED.

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




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