14‐1672‐cv
Hand v. New York City Housing Preservation and Development Division of Code Enforcement
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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 26th day of May, two thousand fifteen.
4
5 PRESENT: RALPH K. WINTER,
6 RAYMOND J. LOHIER, JR.,
7 SUSAN L. CARNEY,
8 Circuit Judges.
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10
11 DEBORAH HAND,
12
13 Plaintiff‐Appellant,
14
15 v. No. 14‐1672‐cv
16
17 NEW YORK CITY HOUSING
18 PRESERVATION AND DEVELOPMENT
19 DIVISION OF CODE ENFORCEMENT,
20
21 Defendant‐Appellee.
22
23 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
24
25 FOR APPELLANT: Deborah Hand, pro se, Brooklyn, NY.
26
1 FOR APPELLEE: Pamela Seider Dolgow, Ingrid R. Gustafson, for
2 Zachary W. Carter, Corporation Counsel of the
3 City of New York, New York, NY.
4
5 Appeal from a judgment of the United States District Court for the Eastern
6 District of New York (Roslynn R. Mauskopf, Judge).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the District Court is AFFIRMED IN PART,
9 VACATED IN PART, and REMANDED.
10 Deborah Hand, pro se, appeals the District Court’s grant of summary
11 judgment dismissing her employment discrimination and retaliation claims
12 under Title VII of the Civil Rights Act of 1964 and the Americans with
13 Disabilities Act (ADA) and denying her request for relief from pre‐termination
14 administrative decisions pursuant to Federal Rules of Civil Procedure 59 and 60.
15 We assume the parties’ familiarity with the facts and record of the prior
16 proceedings, to which we refer only as necessary to explain our decision to
17 affirm in part, vacate in part, and remand.
18 Hand filed an initial complaint with the New York State Division of
19 Human Rights (NYSDHR) on December 9, 2009, and she presented no evidence
20 that she filed a relevant complaint with the Equal Employment Opportunity
21 Commission prior to that date. The District Court did not err in dismissing as
22 time‐barred her Title VII claims insofar as they rested on allegations of
23 discriminatory conduct that occurred more than 300 days before December 9,
24 2009. See Harris v. City of New York, 186 F.3d 243, 247 & n.2 (2d Cir. 1999); see
25 also 42 U.S.C. § 2000e‐5(e)(1).
26 Except for her hostile work environment claim, the District Court also
27 properly dismissed all of Hand’s Title VII race and sex discrimination and
2
1 retaliation claims. First, the determination by the administrative law judge (ALJ)
2 that Hand was guilty of misconduct and incompetence provided a legitimate,
3 nondiscriminatory reason for Hand’s dismissal, and Hand provided no evidence
4 that this reason was pretextual. Second, we agree that Hand’s retaliation claims
5 fail because there is no record of a causal connection between her complaints and
6 the alleged adverse employment actions taken against her. See Zann Kwan v.
7 Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).
8 The District Court erred in granting summary judgment on Hand’s Title
9 VII hostile work environment claim. Based on record evidence that Hand’s
10 supervisor felt her breast and repeatedly invaded her personal space, a
11 reasonable factfinder could find that these incidents were “sufficiently severe . . .
12 to alter the conditions” of Hand’s employment and “create an abusive working
13 environment.”1 Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting
14 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see Redd v. N.Y. Div. of
15 Parole, 678 F.3d 166, 178‐82 (2d Cir. 2012) (holding that plaintiff’s sworn
16 statements that her supervisor engaged in intentionally intrusive conduct and
17 thrice touched her breasts precluded summary judgment).
18 The District Court correctly dismissed Hand’s ADA claim as unexhausted,
19 because she did not claim discrimination on the basis of her disability in either
20 her initial or amended NYSDHR complaint, and because Hand’s claim was not
21 reasonably related to her claims of race and sex discrimination. See Shah v. N.Y.
22 State Dep’t of Civil Serv., 168 F.3d 610, 613‐14 (2d Cir. 1999).
1 Although the ALJ found Hand’s allegations to be spurious based on the
evidence presented at the pre‐termination hearing, these findings are not given
preclusive effect. See Kosakow v. New Rochelle Radiology Assocs., P.C., 274
F.3d 706, 728 (2d Cir. 2001).
3
1 Finally, the District Court properly denied Hand’s motion for relief from
2 the pre‐termination administrative decisions. The Federal Rules of Civil
3 Procedure apply only to civil proceedings in federal district court and in certain
4 other circumstances not present here. See Fed. R. Civ. P. 1, 81(a). To the extent
5 that Hand seeks to challenge the pre‐termination administrative decisions on
6 procedural due process grounds, her challenge fails because she was provided
7 notice of the charges against her and given an opportunity to be heard at the pre‐
8 termination hearing, and New York provides an adequate post‐deprivation
9 remedy in the form of an Article 78 proceeding. See Locurto v. Safir, 264 F.3d
10 154, 171, 175 (2d Cir. 2001).
11 We have considered Hand’s remaining arguments and conclude that they
12 are without merit. For the foregoing reasons, we VACATE and REMAND with
13 respect to Hand’s Title VII hostile work environment claim, and otherwise
14 AFFIRM the judgment of the District Court.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk of Court
4