     12-187-cv
     Jewanta Desardouin v. City of Rochester

                                           UNITED STATES COURT OF APPEALS
                                               FOR THE SECOND CIRCUIT

                                                  August Term 2012
                    Heard: November 6, 2012                   Decided: February 19, 2013
                                                Docket No. 12-187-cv

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 1   JEWANTA DESARDOUIN,
 2
 3           Plaintiff-Appellant,
 4
 5                             v.
 6
 7   CITY OF ROCHESTER, VINCENT McINTYRE, as Aider and Abettor,
 8
 9        Defendants-Appellees.
10   - - - - - - - - - - - - - - - - - - - - - -
11
12   Before: NEWMAN, RAGGI, and LYNCH, Circuit Judges.
13
14           Appeal from the December 16, 2011, judgment of the United States

15   District Court for the Western District of New York (Michael A.

16   Telesca, District Judge), dismissing, on motion for summary judgment,

17   a suit alleging discrimination and retaliation claims based on a

18   hostile         work       environment        in   violation       of   federal   and     state

19   discrimination laws.

20           Affirmed as to retaliation and state law claims, reversed as to

21   discrimination claims, and remanded.

22                                                Christina A. Agola, Rochester, N.Y., for
23                                                 Plaintiff-Appellant.
24
25                                                Igor   Shukoff,  Rochester,          N.Y.,     for
26                                                  Defendants-Appellees.
27
28
29
30

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 1   JON O. NEWMAN, Circuit Judge:

 2         This appeal concerns the recurring issue of what circumstances

 3   suffice to warrant a trial of a gender discrimination claim based on

 4   an allegation of a hostile work environment.              Plaintiff-Appellant

 5   Jewanta Desardouin appeals from the December 16, 2011, judgment of the

 6   United States District Court for the Western District of New York,

 7   Michael    Telesca,   District     Judge,    granting   summary   judgment   to

 8   Defendants-Appellees Vincent McIntyre and the City of Rochester (the

 9   “City”).     Desardouin and others brought claims of a hostile work

10   environment based on gender under the Civil Rights Act of 1964, 42

11   U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1983, and the New York State
12   Human Rights Law, N.Y. Exec. Law § 290, et. seq. (“NYSHRL”), as well
13   as claims of retaliation under Title VII and the NYSHRL.           We conclude

14   that Desardouin’s claim of a hostile work environment suffices to

15   warrant a trial and therefore remand that portion of her case to the

16   District Court.       In a summary order filed today, we affirm the

17   dismissal of the claims of the other plaintiffs.

18                                      Background
19         The following factual summary, drawn primarily from Desardouin’s

20   affidavit, is presented, as required for the purposes of a summary

21   judgment ruling, in the light most favorable to the non-moving party.

22   See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006).

23         Desardouin began her employment with the City as a supervisory

24   security officer in February 1988. She was the only female supervisor

25   in   the   Security   Operations    department    of    the   Rochester   Police

26   Department.    Desardouin reported to McIntyre, her supervisor.

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 1        She alleged that, starting in May 2007, McIntyre made “sexual

 2   advances” toward her and one of her co-plaintiffs, Theresa Smith.                        On

 3   a weekly basis, McIntyre told Desardouin that her husband was “not

 4   taking   care    of   [her]   in   bed.”         In   a    recorded   statement    at    an

 5   investigation by the Professional Standards Section (“PSS”) of the

 6   Rochester Police Department, she acknowledged that McIntyre’s comments

 7   stopped in June or July.

 8        After witnessing McIntyre routinely harass her co-plaintiffs, she

 9   arranged a meeting with Richard Vega, the Department’s Officer of

10   Integrity, and reported McIntyre’s harassing conduct.                     Vega told her

11   there was nothing he could do.        In January 2008, she complained to the

12   PSS about McIntyre’s conduct.              On January 15, 2008, she filed a

13   complaint with the New York State Division of Human Rights.

14        In October or November of 2008, she submitted to PSS a recording

15   of McIntyre and Eric Cotton, another Security Supervisor, allegedly

16   discussing tampering with her computer and changing her schedule.

17        Desardouin filed her federal complaint on December 4, 2008.                        She

18   alleged that retaliation “continued” thereafter.                      Specifically, she

19   alleged that her computer was tampered with “whereby someone deleted

20   the incident reports on [her] system;” she was assigned additional

21   administrative tasks such as payroll reporting, preparing incident

22   reports, and data input, tasks that were not given to the two male

23   supervisors; and McIntyre changed her schedule on an “ad hoc” basis.

24        After      Desardouin    admitted       that         she   had   engaged     in    the

25   unauthorized recording of employees and that she initially had lied

26   about doing so, she was discharged in February 2009.

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 1                                             Discussion

 2   I. Hostile Work Environment

 3          Title VII prohibits an employer from discriminating on the basis

 4   of race, color, religion, sex, or national origin.                   42 U.S.C. § 2000e-

 5   2(a)(1).        A hostile work environment claim requires a plaintiff to

 6   show that a workplace is “so severely permeated with discriminatory

 7   intimidation, ridicule, and insult that the terms and conditions of
 8   her employment were thereby altered.”                  Alfano v. Costello, 294 F.3d
 9   365, 373-74 (2d Cir. 2002) (citations omitted).                      The plaintiff must

10   also show “either that a single incident was extraordinarily severe,

11   or   that   a    series    of   incidents      were    sufficiently       continuous    and

12   concerted to have altered the conditions of her working environment.”

13   Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal

14   quotation marks omitted).                 If a plaintiff relies on a series of

15   incidents, they must be “more than episodic; they must be sufficiently

16   continuous and concerted in order to be deemed pervasive.”                        Perry v.

17   Ethan   Allen,     Inc.,     115    F.3d    143,    149   (2d     Cir.   1997)   (internal

18   quotation marks omitted).            In determining whether the threshold has
19   been    met,      relevant      factors      include       “the     frequency      of   the

20   discriminatory       conduct;       its    severity;      whether    it   is     physically

21   threatening or humiliating, or a mere offensive utterance; and whether

22   it unreasonably interferes with an employee’s work performance.”

23   Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).                               The

24   plaintiff must also subjectively perceive the environment to be

25   abusive.    Id. at 22-23.          Finally, “it is ‘axiomatic’ that in order to

26   establish a sex-based hostile work environment under Title VII, a

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 1   plaintiff must demonstrate that the conduct occurred because of her

 2   sex.”    Alfano, 294 F.3d at 374 (citation omitted).

 3        McIntyre’s comments, though not presenting an obvious case of

 4   hostile work environment, are sufficiently beyond the line drawn in

 5   Harris to warrant a trial.      The comments persisted on a weekly basis

 6   over an interval that lasted at least two and perhaps three months.

 7   Though not threatening, they were more than merely offensive.           For a

 8   male to say to a female employee under his supervision that her

 9   husband was “not taking care of [her] in bed” is the sort of remark

10   that can readily be found to be a solicitation for sexual relations

11   coupled with a claim of sexual prowess and can just as readily be

12   found to have been perceived as such by the female employee.              The

13   weekly repetition of such a remark over several weeks only served to

14   reenforce its offensive meaning and to make sexual intimidation,

15   ridicule, and insult a pervasive part of Desardouin’s workplace,
16   effectively changing the terms and conditions of her employment. See
17   Alfano, 294 F.3d at 373.       Indeed, Desardouin’s affidavit stated that

18   she found McIntyre “threatening,” and that he made “sexual advances”
19   toward   her   and   another   employee.    The   allegations   of   repeated

20   solicitation of sexual relations in a vulgar and humiliating manner

21   suffice to warrant a trial.

22   II. Section 1983 and NYSHRL Claims

23        Desardouin’s claim of gender discrimination because of hostile

24   work environment also suffices under the Equal Protection Clause of

25   the Fourteenth Amendment.      The District Court properly ruled that her

26   NYSHRL claim was barred on the basis of election of remedies, in view

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 1   of N.Y. Exec. Law § 297(9), which, with certain exceptions not

 2   applicable here, precludes resort to courts after claims have been

 3   filed with a local commission on human rights.

 4   III. Retaliation Claims

 5        The District Court properly determined that Desardouin’s claims

 6   of retaliation failed.    As with all Title VII claims, an employer can

 7   defeat a claim that it took an adverse employment action against an

 8   employee by showing that it acted for a legitimate, non-discriminatory
 9   reason.   See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
10   (1973).   The   Defendants   proffered    as    a   reason    for   terminating

11   Desardouin her secret recordings of conversations of police officials.

12   As the District Court pointed out, making these recordings was a

13   felony and a violation of departmental policy.               Desardouin’s only

14   response to the proffer of this undisputed misconduct was that four

15   months had elapsed between her actions and her termination.             Because

16   her misconduct reasonably required some time to investigate, the four-

17   month interval did not impair the legitimacy of the Defendants’

18   proffered reason for the termination.          The retaliation claims were
19   properly dismissed.

20                                   Conclusion

21        The judgment of the District Court is reversed with respect to

22   Jewanta Desardouin’s Title VII and section 1983 claims of gender

23   discrimination because of hostile work environment, and those claims

24   are remanded for trial.    Dismissal of her retaliation claims and her

25   state law claims is affirmed.

26        Affirmed in part, reversed in part, and remanded.

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