    15-2898-cv
    McLeod v. Jewish Guild for the Blind

                                    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.

        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 19th day of July, two thousand seventeen.

    PRESENT:
                      PETER W. HALL,
                      GERARD E. LYNCH,
                      CHRISTOPHER F. DRONEY,
                           Circuit Judges.

    Easter S. McLeod,
                           Plaintiff-Appellant,

                      v.                                     No. 15-2898-cv

    The Jewish Guild for the Blind,
                           Defendant-Appellee,
    Dr. Alan R. Morse, CEO Executive Office,
    Goldie Dersh, VIP Behavioral Health Services,
    Psychiatric Clinic, Melissa Farber, VIP Human
    Resources, Donald Dettmer, Program
    Coordinator,
                           Defendants.


    FOR APPELLANT:                                    ADRIENNE B. KOCH, Elan R. Dobbs, Joseph
                                                      Weiner, Katsky Korins LLP, New York,
                                                      NY.

    FOR APPELLEES:                                    RAVINDRA K. SHAW, Jennifer B. Courtian,
                                                      Jackson Lewis P.C., New York, NY.
   Appeal from a judgment of the United States District Court for the Southern District of New

York (Pauley and Woods, JJ.).

   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the matter REMANDED.

   Plaintiff-Appellant Easter S. McLeod challenges the district court’s decision granting

summary judgment in favor of her former employer, The Jewish Guild for the Blind, on her

claims of sex discrimination and sexual harassment under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. This summary order addresses the district court’s disposition of

those claims. In an accompanying per curiam opinion, we address the district court’s conclusion

that the complaint did not assert claims under state and local anti-discrimination statutes. We

assume the parties’ familiarity with the procedural history of this matter, the underlying facts,

and the issues on appeal.

   We review a grant of summary judgment de novo. Tolbert v. Smith, 790 F.3d 427, 434 (2d

Cir. 2015) (citing Velazco v. Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015)).

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In determining

whether summary judgment is appropriate, we must resolve all ambiguities and draw all

reasonable inferences against the moving party.” Tolbert, 790 F.3d at 434 (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

   I. Judicial Notice

   The Plaintiff has moved for judicial notice by this Court of the form employment

discrimination complaint that the district court provided pro se plaintiffs prior to its revision in

2010 and the form complaints currently in use in the United States District Courts for the


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Eastern, Western, and Northern Districts of New York. The content of these forms is plainly a

matter of indisputable fact and is relevant to the arguments the Plaintiff makes on appeal. See

Fed. R. Evid. 201(b)(2). The motion is granted, and the Court takes judicial notice of the forms.

    II. Title VII Claims

    On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer

repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client,

and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence

in the record tending to show that Dettmer repeatedly made comments about her attire suggesting

that she was a sex worker. It appears the district court only considered two of these instances in

granting summary judgment in favor of the Defendant. The district court characterized the

Plaintiff’s case as “premised entirely on . . . five comments made by Dettmer over a period of

approximately six years[.]” Memorandum Opinion and Order at 10. While understandable in

light of the inartful presentation of the pro se Plaintiff’s summary judgment case below, in so

doing, the district court, in our view, did not view the record in the light most favorable to the

Plaintiff. For that reason, we vacate the grant of summary judgment.

    Because evidence in the record was overlooked, we find it appropriate to remand the matter

for further consideration by the district court in the first instance rather that determining

ourselves whether the facts in the record support a Title VII claim that is not barred by the statute

of limitations that raises a genuine issue of material fact as to whether the Plaintiff was subjected

to a hostile work environment. Likewise, though the parties have briefed the issue of the

Faragher/Ellerth defense and invite us to rule in the first instance on its availability and

applicability, we decline to do so. “It is our settled practice to allow the district court to address

arguments in the first instance.” Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009) (quoting


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Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (per curiam)). Accordingly, we remand

the matter to the district court to determine whether, considering the totality of the record,

including and illuminated by the evidence that was previously overlooked, there is sufficient

evidence to preclude entry of summary judgment in favor of the Defendant-Appellee.

   We are confident that on remand the district court will be mindful of our frequent admonition

that evidence of a hostile work environment should not be evaluated “in piecemeal fashion,”

Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012), but rather should be viewed from

“the perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances including the social context in which particular behavior occurs and is

experienced by its target.” Id. (alteration, citation, and internal quotation marks omitted).

   We have considered all of the Defendant’s remaining arguments in favor of an affirmance

and find them without merit.

   III. Further Proceedings

   Finally, we note that many of the difficulties of this case arose from the Plaintiff’s self-

representation below. The highly capable assistance of the Plaintiff’s pro bono appellate counsel

has been of great utility to this Court in deciding this appeal. We respectfully suggest that, on

remand, the district court consider appointing pro bono counsel for the Plaintiff. See, e.g., Willey

v. Kirkpatrick, 801 F.3d 51, 71 (2d Cir. 2015).

   For the reasons set forth herein and in the accompanying per curiam opinion, the judgment of

the district court is VACATED and the matter REMANDED for further proceedings consistent

with this order.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk



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