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

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

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

14
15        Appeal from a judgment of the United States District
16   Court for the Southern District of New York (Smith, Mag.
17   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       Maureen Christensen appeals from the (1) dismissal of

24   her equal protection claim and (2) denial of her motion for

25   a new trial on her remaining substantive due process claim.

26   We assume the parties’ familiarity with the underlying

27   facts, the procedural history, and the issues on appeal.

28       1.   Equal Protection Claim.    After the jury heard all

29   the trial evidence but before it returned a verdict, the

30   district court dismissed Christensen’s equal protection

31   claim for lack of evidence of sex discrimination.    We review

32   de novo, see Peters v. Baldwin Union Free School Dist., 320



                                   2
1    F.3d 164, 167 (2d Cir. 2003), and uphold the district

2    court’s dismissal only if the record reveals no “legally

3    sufficient evidentiary basis” for “a reasonable jury” to

4    return a verdict in favor of Christensen, Fed. R. Civ. P.

5    50(a)(1).

6        As the district court recognized, Christensen failed to

7    introduce evidence that any actionable discrimination or

8    harassment was motivated by her sex.   The evidence suggested

9    that Christensen was subjected to rumors and investigated

10   because of (1) a potentially inappropriate relationship with

11   an inmate, and (2) the intense animosity between her husband

12   and Mark Battistoni, who allegedly spread the rumors.    As

13   the district court concluded, “this had to do with behavior”

14   and not “with gender.”   Our reasoning in Brown v. Henderson

15   is instructive:   “[T]here is overwhelming evidence that the

16   hostility toward [plaintiff] was grounded in workplace

17   dynamics unrelated to her sex and that even [harassing]

18   pictures did not reflect an attack on [plaintiff] as a

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

         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. See Spain v. Gallegos, 26
     F.3d 439, 448 (3d Cir. 1994). But it is a long way from
                                   3
1        2.   Motion for New Trial.    Christensen’s remaining due

2    process claim went to the jury, which unanimously answered

3    “no” to the question of whether Christensen “established, by

4    a preponderance of the evidence, that a Dutchess County

5    employee . . . uttered statements about [her] that were

6    injurious to [her] reputation, that were made public, and

7    that [she] claims were false.”    Christensen did not object

8    to the jury instructions and therefore waived any objections

9    to their form.   See Lavoie v. Pac. Press & Shear Co., 975

10   F.2d 48, 55 (2d Cir. 1992) (“Failure to object to a jury

11   instruction or the form of an interrogatory prior to the

12   jury retiring results in a waiver of that objection.”).     The

13   district court denied Christensen’s motion for a new trial

14   based on the court’s “best recollection of the evidence, and

15   its own observations of the testimony offered at trial.”

16       “The court may, on motion, grant a new trial on all or

17   some of the issues . . . after a jury trial, for any reason

18   for which a new trial has heretofore been granted in an


     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 concern that 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.
                                   4
1    action at law in federal court.”     Fed. R. Civ. P.

2    59(a)(1)(A).   “[F]or a district court to order a new trial

3    under Rule 59(a), it must conclude that the jury has reached

4    a seriously erroneous result or the verdict is a miscarriage

5    of justice, i.e., it must view the jury’s verdict as against

6    the weight of the evidence.”     Manley v. AmBase Corp., 337

7    F.3d 237, 245 (2d Cir. 2003) (internal quotation marks and

8    alteration omitted).   Because we accord a “high degree of

9    deference” to the “jury’s evaluation of witnesses

10   credibility, . . . jury verdicts should be disturbed with

11   great infrequency.”    Raedle v. Credit Agricole Indosuez, 670

12   F.3d 411, 418-19 (2d Cir. 2012); see also DLC Mgmt. Corp. v.

13   Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998) (“[T]he

14   court should only grant such a motion when the jury’s

15   verdict is ‘egregious.’”).     A district court’s “denial of a

16   motion to set aside a verdict as against the weight of the

17   evidence . . . is not subject to appellate review.”

18   Lightfoot v. Union Carbide Corp., 110 F.3d 898, 910 (2d Cir.

19   1997).   Instead, “the loser’s only appellate recourse is to

20   challenge the legal sufficiency of the evidence.”      Stonewall

21   Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199

22   (2d Cir. 1995).



                                     5
1        Christensen does not demonstrate that the jury reached

2    a seriously erroneous result or that the verdict was a

3    miscarriage of justice.   The jury could reasonably have

4    found that Christensen failed to establish by a

5    preponderance of the evidence that a Dutchess County

6    employee uttered statements injurious to her reputation.

7    The jury heard evidence that Christensen’s professional

8    reputation was unimpaired because she was due to retire

9    anyway and successfully established a private practice post-

10   retirement.   In light of its verdict in favor of Battistoni,

11   the jury could reasonably have concluded that Christensen

12   did engage in inappropriate conduct with an inmate, and that

13   it was this conduct rather than any statements by others

14   that injured her reputation.   Regardless of why the jury

15   answered the way it did, it had enough evidence before it to

16   arrive at that answer.

17       We have considered all of Christensen’s remaining

18   arguments and conclude that they are without merit.    The

19   judgment of the district court is hereby affirmed.

20
21                               FOR THE COURT:
22                               CATHERINE O’HAGAN WOLFE, CLERK
23




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