         11-657-cv
         Jerram v. Cornwall Central School District

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                ROSLYNN R. MAUSKOPF,*
10                         District Judge.
11
12
13
14       JILL JERRAM,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                       11-657-cv
19
20       CORNWALL CENTRAL SCHOOL DISTRICT, TIMOTHY
21       REHM, Superintendent of Schools, sued in
22       his individual capacity, MICHAEL BROOKS,
23       Assistant Superintendent of Schools, sued
24       in his individual capacity,
25
26                                     Defendants-Appellees.
27
28


                *
               Judge Roslynn R. Mauskopf, of the United States
         District Court for the Eastern District of New York, sitting
         by designation.
 1   FOR APPELLANT:    STEPHEN BERGSTEIN (Helen G. Ullrich, on
 2                     the brief), Bergstein & Ullrich, LLP,
 3                     Chester, N.Y.
 4
 5   FOR APPELLEES:    GREGG T. JOHNSON, Lemire Johnson, LLC,
 6                     Malta, N.Y.
 7
 8        Appeal from the United States District Court for the
 9   Southern District of New York (Patel, J.).**
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment of the United States District

13   Court for the Southern District of New York be AFFIRMED.

14       Appellant Jill Jerram appeals from a judgment of the

15   United States District Court for the Southern District of

16   New York (Patel, J.), which granted Appellees’ motion for

17   summary judgment on Jerram’s claims of gender harassment and

18   discrimination in violation of Title VII and the Equal

19   Protection Clause of the Fourteenth Amendment, retaliation

20   in violation of Title VII, and retaliation in violation of

21   the First Amendment.   We assume the parties’ familiarity

22   with the underlying facts, the procedural history, and the

23   issues presented for review.

24       “We review a district court’s grant of summary judgment

25   de novo, viewing the facts in the light most favorable to


         **
            Judge Marilyn Hall Patel, of the United States
     District Court for the Northern District of California,
     sitting by designation.
                                    2
1    the non-moving party.”     Amador v. Andrews, 655 F.3d 89, 94

2    (2d Cir. 2011).     Although we view the evidence in favor of

3    the non-moving party, “the mere existence of a scintilla of

4    evidence in support of the plaintiff’s position will be

5    insufficient [to withstand a summary judgment motion]; there

6    must be evidence on which the jury could reasonably find for

7    the plaintiff.”     Jeffreys v. City of New York, 426 F.3d 549,

8    554 (2d Cir. 2005) (internal quotation marks and alteration

9    omitted) (emphasis in original).

10       We find no error in the district court’s grant of

11   summary judgment to Appellees on Jerram’s Title VII hostile

12   work environment claim and accompanying Equal Protection

13   Clause claim.     To establish a hostile work environment

14   claim, the plaintiff must demonstrate that the conduct

15   complained of (1) is objectively pervasive or severe; (2) is

16   subjectively pervasive or severe; and (3) occurred because

17   of the plaintiff’s gender.     Patane v. Clark, 508 F.3d 106,

18   113 (2d Cir. 2007) (per curiam).     The plaintiff’s burden of

19   establishing that conduct is gender-based is rendered easier

20   where the plaintiff is harassed in gender-specific terms;

21   the plaintiff’s task is more difficult where the conduct

22   complained of is facially gender-neutral.     See Raniola v.

23   Bratton, 243 F.3d 610, 621 (2d Cir. 2001).


                                     3
1           Here, Jerram has fallen short of providing evidence

2    from which one could reasonably determine that Brooks’

3    conduct was gender-based.    A number of school

4    administrators, men and women alike, stated that Brooks was

5    a direct, short, abrasive, and sometimes disrespectful

6    supervisor.    Brooks subjected many of his colleagues to the

7    same behavior that Jerram complains of, and there is little

8    evidence that Brooks treated women any worse than he treated

9    men.    Jerram’s conclusory statements to the contrary do not

10   rescue her claim.    See Meiri v. Dacon, 759 F.2d 989, 998 (2d

11   Cir. 1985).

12          We similarly reject Jerram’s contention that the

13   district court erred in granting summary judgment to

14   Appellees on her Title VII retaliation claim.     To establish

15   a prima facie case of retaliation, the plaintiff must

16   establish that “(1) she was engaged in an activity protected

17   under Title VII; (2) the employer was aware of [the]

18   plaintiff’s participation in the protected activity; (3) the

19   employer took adverse action against [the] plaintiff; and

20   (4) a causal connection existed between the plaintiff’s

21   protected activity and the adverse action taken by the

22   employer.”    Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d

23   Cir. 2003) (internal quotation marks and citation omitted).


                                    4
1    If the plaintiff succeeds in establishing her prima facie

2    case of retaliation, then the familiar McDonnell Douglas

3    burden-shifting framework applies.     See Rojas v. Roman

4    Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d Cir.

5    2011).   After a thorough review of the record, we find that

6    Jerram has failed to raise a genuine issue of material fact

7    from which a reasonable jury could conclude that she was a

8    victim of unlawful retaliation.

9        Finally, we affirm the district court’s grant of

10   summary judgment to Appellees on Jerram’s First Amendment

11   retaliation claim, but for a different reason than those

12   identified by the district court.     See Freedom Holdings,

13   Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010).     To prevail

14   on a First Amendment retaliation claim, a public employee

15   must demonstrate at least that she was speaking as a citizen

16   and not pursuant to her official duties.     Garcetti v.

17   Ceballos, 547 U.S. 410, 421 (2006).    The “inquiry into

18   whether a public employee spoke pursuant to his or her

19   official duties is a practical one,” and the employee’s

20   official job description is not dispositive.     Weintraub v.

21   Bd. of Educ., 593 F.3d 196, 202 (2d Cir. 2010) (internal

22   quotation marks and citation omitted).

23


                                   5
1        According to Jerram’s brief, “[Pupil Personnel

2    Services] oversees special education at the school district,

3    including referrals, placement, curriculum, budgets, program

4    development, professional development, staff supervision,

5    grants and state revenue.”    Jerram Br. 2.   Jerram was the

6    Assistant Director of Pupil Personnel Services.     She claims

7    that Brooks may have been purposefully overestimating the

8    number of special education teachers needed in the high

9    school.   She informed Jill Boynton, the Director of Pupil

10   Personnel Services, and together they met with the

11   district’s superintendent to discuss the issue.     Jerram also

12   offered Boynton suggestions on how she could redirect the

13   excess staff.    Under these circumstances, it is clear that,

14   as a practical matter, Jerram was speaking pursuant to her

15   official duties when she brought the staffing issue to the

16   attention of her superiors.

17       We have considered Jerram’s remaining arguments and,

18   after a thorough review of the record, find them to be

19   without merit.

20       For the foregoing reasons, the judgment of the district

21   court is hereby AFFIRMED.

22
23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
26


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