14-3426-cv
Shalom v. Hunter College of the City Univ. of N.Y.
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 6th day of April, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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HOLLY SHALOM,
Plaintiff-Appellant,
v. 14-3426-cv
HUNTER COLLEGE OF THE CITY
UNIVERSITY OF NEW YORK,
Defendant-Appellee,
MARILYN IRIS AUERBACH, SUDI
SHAYESTEH,
Defendants.
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FOR APPELLANT: Holly Shalom, pro se, Merrick, New York.
FOR APPELLEE: Barbara D. Underwood, Solicitor General; Anisha S.
Dasgupta, Deputy Solicitor General; Eric Del Pozo, Assistant
Solicitor General, for Eric T. Schneiderman, Attorney General
of the State of New York, New York, New York.
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Appeal from a judgment of the United States District Court for the Southern District
of New York (Shira A. Scheindlin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on August 13, 2014, is AFFIRMED.
Plaintiff Holly Shalom, proceeding pro se, appeals from an award of summary
judgment in favor of defendant Hunter College on claims that Shalom was subjected to
sexual harassment, a hostile educational environment, and retaliation in violation of Title
IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq.1 We
review a summary judgment award de novo, and will affirm only if the record, viewed in
the light most favorable to the non-moving party, reveals no genuine issue of material fact.
See Fed. R. Civ. P. 56; Lynch v. City of New York, 737 F.3d 150, 156 (2d Cir. 2013). We
assume the parties’ familiarity with the underlying facts and procedural history of the case,
which we reference only as necessary to explain our decision to affirm for substantially the
reasons stated in the district court’s August 13, 2014 opinion and order.
1. Sexual Harassment Claim
To prevail on a Title IX quid pro quo sexual harassment claim, a plaintiff must
prove (1) rejection of sexual advances, (2) a tangible school-related consequence, and (3) a
causal connection between the two. See Papelino v. Albany Coll. of Pharmacy of Union
Univ., 633 F.3d 81, 89 (2d Cir. 2011). Upon de novo review, we conclude, as the district
1
Shalom’s counsel filed her opening brief, but she subsequently decided to proceed
pro se. Because it is not clear whether Shalom intended her pro se reply brief to replace
counsel’s brief in its entirety, we have considered the arguments advanced in both.
2
court did, that Shalom’s claim fails at the first issue because she testified at her deposition
that Dr. Vogel never made a sexual advance toward her. Shalom contends on appeal that
she misunderstood the “legal definition” of sexual advance at the time of her deposition
and now thinks Dr. Vogel “made multiple implied sexual advances.” Appellant Reply 13.
Even if we could consider this new allegation on appeal, it fails to raise a triable issue of
fact because it is entirely conclusory and unsupported by any facts. See Davis v. New
York, 316 F.3d 93, 100 (2d Cir. 2002) (explaining, in case with pro se litigant, that mere
allegations or conclusory statements unsupported by facts are insufficient to defeat motion
for summary judgment).
2. Hostile Educational Environment Claim
We also conclude, as the district court did, that Shalom’s hostile environment claim
fails because Dr. Vogel’s alleged comments about her dress and appearance were not
“sufficiently severe or pervasive to alter the conditions of [her] educational environment.”
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d at 89. Shalom’s receipt
of a failing grade in her COMSC 728 class warrants no different conclusion. Although
adverse treatment, even if “not overtly sexual in nature,” can contribute to a hostile
environment, that treatment must nonetheless be “on account of sex.” Id. at 91 (internal
quotation marks omitted). Here, Dr. Vogel’s comments, especially when considered in
light of his responsibility as clinic director to enforce the dress code, do not raise an
inference that he gave Shalom a failing grade on account of her sex. The district court,
therefore, correctly granted summary judgment as to Shalom’s hostile environment claim.
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3. Retaliation Claim
With respect to retaliation, Shalom argues that the district court erred in concluding
that she failed to demonstrate that the failing grade in COMSC 729 and the denial of her
leave request in December 2012 were causally connected to her harassment complaints
against Dr. Vogel in June 2010, January 2011, and April 2011. See Papelino v. Albany
Coll. of Pharmacy of Union Univ., 633 F.3d at 91 (explaining that plaintiff claiming
retaliation under Title IX must make prima facie showing that (1) he engaged in protected
activity, (2) defendant had knowledge of such protected activity, (3) plaintiff suffered
adverse school-related action, and (4) causal connection existed between protected activity
and adverse action). We disagree. While causality can be inferred where an adverse
action follows closely after protected activity, Shalom received her failing grade at the end
of the fall 2010 semester, at least five months after her first complaint, and her
leave-of-absence request was denied over a year after her final complaint and the
commencement of her Article 78 proceedings. See Hollander v. Am. Cyanamid Co., 895
F.2d 80, 85–86 (2d Cir. 1990) (concluding that three-month lapse between protected
activity and adverse act required something more to establish causal connection).
In any event, Shalom fails to show that defendant’s legitimate, non-discriminatory
reason for her grade—various supervisors’ notation of Shalom’s deficient
performance—was pretextual. See Papelino v. Albany Coll. of Pharmacy of Union Univ.,
633 F.3d at 92 (explaining that burden-shifting framework under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies to Title IX retaliation claims). Accordingly,
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the district court correctly awarded defendant summary judgment on Shalom’s retaliation
claim.
4. Remaining Claims
In her counseled brief, Shalom advances a disparate treatment theory of
discrimination and asserts that defendant failed to accommodate her disability in violation
of 42 U.S.C. § 1983. We decline to consider those arguments because Shalom (1) failed
to defend her disparate treatment claim in opposing summary judgment, see Jackson v.
Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (explaining that court may infer that claims not
defended on summary judgment are abandoned); and (2) by letter dated April 23, 2014,
explicitly withdrew her § 1983 claim before the district court.
5. Conclusion
We have considered all of Shalom’s remaining arguments, in both her counseled
and pro se briefs, and conclude that they are without merit.2 Accordingly, we AFFIRM
the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2
Because we conclude that Shalom failed to raise a triable issue of fact with respect to her
sexual harassment, hostile environment, and retaliation claims, we need not consider
whether defendant had “actual knowledge” of the alleged discrimination by Dr. Vogel, and
“failed adequately to respond.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir.
2003) (internal quotation marks and alteration omitted) (explaining that under Title IX
plaintiff must also prove school’s deliberate indifference to harassment).
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