17‐47
Willis v. Cty. Of Onondaga
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
ASUMMARY ORDER@). A PARTY CITING 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 31st day of January, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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ODELL WILLIS,
Plaintiff‐Appellant,
‐v.‐ 17‐47
COUNTY OF ONONDAGA,
Defendant‐Appellee,
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FOR PLAINTIFF‐APPELLANT: K. FELICIA PITTS‐DAVIS, Law
Offices of K. Felicia Davis; Syracuse,
NY.
FOR DEFENDANT‐APPELLEE: CAROL L. RHINEHART, of Counsel,
for Robert A. Durr, Onondaga
County Attorney; Syracuse, NY.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Suddaby, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Odell Willis appeals from the judgment of the United States District Court
for the Northern District of New York (Suddaby, J.) dismissing, on summary
judgment, his Complaint against the County of Onondaga (the “County”). Willis
alleges that he suffered racial and sex discrimination while employed as a deputy
sheriff at the Onondaga County sheriff’s office, and that the County failed to stop
it. The alleged misconduct included unwanted sexual touching and graphic
sexual comments by “Sergeant B” and fellow deputies, racially hostile comments
and actions by fellow deputies, and retaliation for filing a complaint of racial and
sex discrimination. Willis asserts six causes of action, including violations of
Title VII, 42 U.S.C. § 1981, and the New York State Human Rights Law. We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.
We review de novo a grant of summary judgment, VKK Corp. Nat’l v.
Football League, 244 F.3d 114, 118 (2d Cir. 2001), “view[ing] the evidence in the
light most favorable to the party opposing summary judgment, . . . draw[ing] all
reasonable inferences in favor of that party, and . . . eschew[ing] credibility
assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.
2004) (internal quotation marks omitted). Summary judgment is appropriate if
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56.
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To prevail on a hostile work environment claim under Title VII, a plaintiff
must show that “the discriminatory harassment was sufficiently severe or
pervasive to alter the conditions of the victimʹs employment and create an
abusive working environment, and that a specific basis exists for imputing the
objectionable conduct to the employer.” Tolbert v. Smith, 790 F.3d 427, 439 (2d
Cir. 2015) (internal quotation marks omitted). If the alleged harasser supervises
the plaintiff, the objectionable conduct is imputed to the employer. Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The employer may assert an
affirmative defense by establishing (1) “that the employer exercised reasonable
care to prevent and correct promptly any . . . harassing behavior” and (2) “that
the plaintiff employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid harm
otherwise.” Id. If the alleged harasser is a coworker, the plaintiff must show that
the employer “either provided no reasonable avenue for complaint or knew of
the harassment but did nothing about it.” Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000).
As an initial matter, Willis contends that the district court failed to
consider certain instances of misconduct. Willis assumes that the court deemed
them time‐barred because they pre‐dated August 7, 2013, the statutory cut‐off
date 300 days prior to the filing of the EEOC complaint, and Willis argues that
the continuing violation doctrine revives these claims. However, the district
court in fact concluded that Willis was relitigating them, because he could have
(but did not) raise the claims in a prior action involving the same parties, which
resulted in an adjudication on the merits. See Special App’x 31; TechnoMarine
SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014). Willis does not address
why claim preclusion does not therefore bar consideration of these instances of
misconduct.
The record shows that the County took reasonable care to prevent
discriminatory behavior and provided a reasonable avenue for complaints. The
sheriff’s office had policies forbidding racial and sexual harassment; all deputy
sheriffs received yearly diversity training that explains the office’s policies; and
both Willis and his alleged harassers received training on the issue of
harassment. Willis argues that he did not report certain instances of misconduct
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because he feared reprisal by Lieutenant Raus; but he also testified that
Lieutenant Greco had “an open door” and that Willis felt comfortable talking to
him. App’x 198. Furthermore, Willis’ fear of reprisal did not stop him from
complaining about incidents of misconduct to individuals both inside and
outside of the sheriff’s office during the same time period. App’x 198‐202.
The record also shows that the sheriff’s office investigated Willis’
complaints of misconduct when he chose to report them. For instance, when
Willis complained that someone had torn down his poster of Martin Luther King
from his locker, Sergeant Marshall replaced the poster and addressed the matter
at roll call. When Sergeant Marshall heard a racial slur broadcast over a deputy’s
cellphone, he immediately addressed the matter and issued a disciplinary
supervisor’s memorandum. When Willis complained about seeing a photograph
of a deputy handcuffed inside a shopping cart, the matter was investigated and
supervisor’s memoranda were issued. When Willis complained that “Deputy A”
had punched him in the leg to give him a “Charlie horse,” the sheriff’s office
investigated and issued a supervisor’s memorandum.
As to Sergeant B, the complaints were investigated by Sergeant Marshall
and Lieutenant Raus. Willis argues that the sheriff’s office did not follow its own
policy to have the Professional Standards Unit (“PSU”) conduct the
investigation; but Willis testified that he was interviewed by the PSU regarding
his complaints about Sergeant B. And there is no record evidence to support
Willis’ assertion that these investigations were biased.
Despite having knowledge of the complaint procedure in the sheriff’s
office, Willis did not complain about witnessing Deputy A giving the so‐called
“Polish handshake” to other deputies and feeling re‐victimized as a result, and
there is no evidence in the record that other supervisors were aware of these
incidents. Accordingly, the County cannot be held liable under Title VII for this
conduct because it did not have knowledge that it occurred.
As to Willis’ argument that the sheriff’s office did not exercise reasonable
care to prevent harassment because he was continuously partnered with Deputy
A, Willis testified that he was paired with a different deputy and that prior to his
partnership with Deputy A the individuals he worked with varied.
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Finally, Willis argues that the district court should not have dismissed his
retaliation claim. Willis’ Complaint asserts six causes of action, none of which
was a claim for retaliation: he mentioned the word “retaliate” only twice, App’x
608‐09 (Compl. ¶ 21), but omitted “retaliation” from the Causes of Action section
of the Complaint, leading the County and the district court to conclude
reasonably that Willis had chosen not to assert the claim.
We have considered Willis’ remaining arguments and conclude that they
are without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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