12-187
Ross-Caleb v. City of Rochester
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of February, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 REENA RAGGI,
9 GERARD E. LYNCH
10 Circuit Judges.
11
12 _______________________________________
13 TERRA ROSS-CALEB, ALFONDA CRAWFORD,THERESA
14 SMITH, JEAN CLAUDE DESARDOUIN
15
16 Plaintiffs-Appellants,
17
18 v. 12-187-CV
19
20 CITY OF ROCHESTER, VINCENT McINTYRE as Aider and Abettor,
21
22 Defendants-Appellees.
23 _______________________________________
24
25 FOR APPELLANTS: Christina A. Agola, Rochester, N.Y.
26
27 FOR APPELLEES: Igor Shukoff, Rochester, N.Y.
28
29 UPON DUE CONSIDERATION, it is hereby ordered that the
30 judgment of the District Court is AFFIRMED with respect to the
31 above-named Plaintiffs-Appellants.
1 Plaintiffs-Appellants Terra Ross-Caleb, Alfonda Crawford,
2 Theresa Smith, and Jean Claude Desardouin appeal from the December
3 16, 2011, judgment of the United States District Court for the
4 Western District of New York, Michael A. Telesca, District Judge,
5 granting summary judgment to Defendants-Appellees Vincent McIntyre
6 and the City of Rochester. The Plaintiffs brought claims of gender
7 discrimination because of a hostile work environment under the
8 Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), 42
9 U.S.C. § 1983, and the New York State Human Rights Law, N.Y. Exec.
10 Law § 290, et seq. (“NYSHRL”), as well as claims of retaliation
11 under Title VII and the NYSHRL. The Court also granted summary
12 judgment to the Defendants on the claims of co-plaintiff Jewanta
13 Desardouin (the wife of Jean Claude Desardouin); in an opinion
14 filed today, we have reversed in part the District Court’s judgment
15 and remanded with respect to her claims.
16 We assume the parties’ familiarity with the facts and
17 procedural developments in this case.
18 The District Court rejected all of the claims of these
19 Appellants in a thorough 37-page opinion. With one exception, we
20 agree with the District Court and affirm the judgment for the
21 reasons Judge Telesca set forth. The exception concerns Mr.
22 Desardouin’s claims under the NYSHRL. The District Court
23 dismissed all of his claims on the ground that his administrative
24 complaint to the EEOC was untimely. Dismissing his NYSHRL and
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1 section 1983 claims on this ground was error, because those claims
2 are not subject to the procedural requirements of Title VII claims.
3 See Drees v. County of Suffolk, No. 06-cv-3298 (JFB)(ETB), 2007 WL
4 1875623, at *6 (E.D.N.Y. June 27, 2007) (NYSHRL and section 1983,
5 unlike Title VII, does not require exhaustion of administrative
6 remedies prior to bringing a civil lawsuit); Patsy v. Board of
7 Regents, 457 U.S. 496, 516 (1982) (same, with respect to section
8 1983). Nevertheless, his state law and federal constitutional
9 discrimination claims fail for lack of any evidence that he was
10 treated differently than any other similarly situated employee, and
11 his state law retaliation claim fails, as the District Court noted,
12 for lack of any explanation as to how his termination in December
13 2007 could be retaliation, as he alleged, for protected activity of
14 his wife that did not occur until months later.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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