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
6