JASON AGOSTO, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, MANUEL UREÑA, Defendants-Appellees.
No. 19-2738-cv
United States Court of Appeals FOR THE SECOND CIRCUIT
DECIDED: DECEMBER 4, 2020
AUGUST TERM 2019; ARGUED: JUNE 25, 2020
Before: CABRANES, LOHIER, and MENASHI, Circuit Judges.
Jason Agosto, a teacher at the public High School of Art and Design in New York City, appeals from a judgment entered August 12, 2019, by the U.S. District Court for the Southern District of New York (Hellerstein, J.). The court granted summary judgment to the New York City Department of Education and Principal Manuel Ureña on Agosto‘s claim of First Amendment retaliation and on his
Agosto‘s speech consisted of grievances about employment disputes that are not matters of public concern, and therefore his speech was not protected against retaliation by the First Amendment. Even if some of Agosto‘s speech were so protected, the district court still would have been correct to grant qualified immunity to Ureña. The district court also correctly concluded that Agosto‘s Monell claim against the Department of Education fails because Ureña was not a policymaker, and therefore Agosto cannot identify any municipal policy that allegedly caused a constitutional violation.
Summary judgment was also properly granted on Agosto‘s
Accordingly, we AFFIRM.
Judge Lohier concurs in part and concurs in the judgment in a separate opinion.
JORDAN F. HARLOW, Glass Harlow & Hogrogian LLP, New York, NY, for Plaintiff-Appellant.
LORENZO DI SILVIO, Office of the Corporation Counsel of the City of New York, New York, NY (James E. Johnson, Richard Dearing, Aaron M. Bloom on the brief),
MENASHI, Circuit Judge:
Public high school teacher Jason Agosto alleges that he suffered retaliation in violation of the First Amendment after filing union and employment grievances critical of Principal Manuel Ureña. Agosto further alleges that Ureña‘s actions set official policy for the New York City Department of Education, which he argues should be liable for Ureña‘s actions pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).
As a public employee, Agosto must demonstrate that the speech for which he allegedly suffered retaliation was made as a private citizen and was on a matter of public concern. We conclude that his First Amendment claim fails because his complaints were not on matters of public concern. His complaints alleged that Ureña had not followed proper collective-bargaining procedures before changing options available for teachers to use during their “professional period” each day, had not turned over budget documents that Agosto requested, had recruited another teacher to report what he heard at a teachers’ union meeting, and had retaliated against Agosto for his actions within the union. This court‘s precedent makes clear that Agosto‘s complaints are not related to matters of public concern and therefore are not protected against retaliation by the First Amendment. Moreover, even if Agosto‘s speech were so protected, Ureña would be entitled to qualified immunity because a reasonable employee would not have been on notice that Agosto‘s speech involved a matter of public concern and also because the law on whether employment grievances are private speech was not clearly established at the time.
Agosto‘s Monell claim against the Department of Education fails because he has not identified a municipal policy that allegedly caused a constitutional violation. Agosto seeks Monell liability solely on the theory that Ureña‘s acts set final policy for the Department of Education. The Supreme Court has explained that a single official can create Monell liability only if state law provides that official with authority to set final, municipality-wide policy in the relevant area. No state law conferred such power on Ureña, who was one of hundreds of principals within the Department of Education subject to the chancellor‘s regulations and to statutory authorities regarding teacher discipline
The district court also correctly granted summary judgment on Agosto‘s
We affirm the district court‘s grant of summary judgment to the defendants.
BACKGROUND
I
In 2004, Jason Agosto began working as a teacher at the High School of Art and Design, a public school in New York City. During the period relevant to this lawsuit, Agosto served as the chapter leader of the teachers’ union. Defendant Manuel Ureña became the principal of the school in January 2016.
For the 2013-14 school year, the New York City Department of Education introduced a new system for evaluating teachers, who would be rated “highly effective,” “effective,” “developing,” or “ineffective” in a series of categories. J. App‘x 907. At the end of the school year, each teacher received an overall rating based on a combination of the ratings he or she received for performance and for student learning. J. App‘x 908-09.
Agosto‘s ratings declined after Ureña became principal. In May 2016, Ureña observed Agosto‘s class and rated him “effective” in one category but “developing” in two categories and “ineffective” in four categories. J. App‘x 148-49. Agosto received an overall rating of “developing” for the 2015-16 school year, which resulted in his placement on a teacher improvement plan for the 2016-17 school year, during which he had to meet weekly with Ureña. J. App‘x 764-66, 917-18.
In December 2016, Ureña again observed Agosto and rated him “developing” in five categories and “ineffective” in two categories. J. App‘x 212. Despite those ratings, Agosto received an overall rating of “effective” for the 2016-17 school year and was not placed on an improvement plan for the following year. J. App‘x 920.
During the relevant period, Ureña wrote three “letters to file” for Agosto. Letters to file are notations of misconduct that do not directly constitute formal discipline proceedings but may lead to formal discipline. The teacher who is the subject of such a letter receives a copy, and it is placed in that teacher‘s personnel file.
The first letter was issued on May 27, 2016, because Agosto had been asked to send a week‘s worth of work to a suspended student but had allegedly refused to send more than the assignments for two days.
The second letter was issued on June 27, 2017, after the Parent Chairperson of the School Leadership Team sent a complaint to Manhattan Superintendent Marisol Rosales accusing Agosto of making a threatening statement after a meeting on June 15, 2017.
The third letter was issued on October 23, 2017, after Agosto allegedly kept turning around and asking Ureña the same question during a classroom observation session.
During the 2015-16 and 2016-17 school years, Agosto filed numerous grievances about Ureña.
In May 2016, pursuant to the teachers’ collective bargaining agreement, Agosto filed a union grievance claiming that Ureña had improperly modified the “C-6 menu,” which provides options of professional activities that teachers may choose for their professional period each school day. J. App‘x 365-68, 929-30. Agosto claimed that Ureña had met with him in advance to discuss the changes but had not shown the proposed changes to the union chapter as a whole and thus had violated a CBA provision. In June 2017, after a representative of the chancellor of the Department of Education rejected this grievance, Agosto filed a grievance with the New York Public Employment Relations Board (PERB) asserting the same complaint about the C-6 menu.
In May 2016, Agosto filed another union grievance challenging Ureña‘s denial of Agosto‘s request for budget documents for the High School of Art and Design for 2011-14. Agosto said he “wanted to know where that money went, what happened with those budgets” because a prior principal had allegedly let an assistant principal make budget decisions without sufficient input from the teachers’ union. J. App‘x 122-24, 932.
In June 2017, Agosto filed a PERB complaint alleging that Ureña had made an assistant principal ask a probationary teacher to attend a union meeting and report back because Ureña “was working on terminating [Agosto] and was interested in knowing who the replacement would be.” J. App‘x 643-47.
In July 2017, Agosto filed another PERB complaint alleging that Ureña had retaliated against Agosto over a period of time because of Agosto‘s union activity.
In December 2017, Agosto filed a union grievance alleging that Ureña harassed Agosto after he filed his May 2016 grievance regarding the C-6 menu.
Agosto also alleges that Ureña “began sexually harassing [Agosto] in January 2017.” J. App‘x 971. Agosto‘s sworn affidavit states that the “first incident” was during a meeting on January 20, 2017, when Ureña is alleged to have suggestively licked a lollipop while looking at Agosto, who perceived Ureña to be “simulat[ing] fellatio” with the lollipop. Id. Ureña claims that he had a lollipop tree in his office and often ate lollipops during meetings but did not do so suggestively. Agosto maintains that in early February 2017, he accused Ureña of sexually harassing him and then filed an EEOC complaint on March 16, 2017. Agosto alleges that Ureña‘s misconduct continued. For example, in May 2017, Ureña allegedly sang part of the song “Tomorrow” from the musical Annie while emphasizing the lyrics “I‘ll love you, tomorrow” and staring at Agosto. Id. In October 2017, Ureña allegedly followed Agosto closely down a hallway at school while shouting “It‘s a beautiful day.” Id. Agosto also claims that Ureña would often “stare” or “sneer” at Agosto, “cat-call and clap” at him, and make unspecified derogatory and demeaning comments toward or about him. Id.
III
In November 2017, Agosto filed a complaint in the U.S. District Court for the Southern District of New York, naming the New York City Department of Education and Ureña as defendants and alleging First Amendment retaliation, a sex-based hostile work environment and retaliation in violation of
On the First Amendment retaliation claim, the district court noted that Agosto‘s grievances “may” have been protected speech, J. App‘x 1248-49, but, even if so, qualified immunity protected Ureña because at the relevant time there was no precedent clearly establishing that Agosto‘s employment grievances would qualify for First Amendment protection from retaliation.
The district court also rejected Agosto‘s claim for Monell liability against the Department of Education, holding that there was no municipal policy or custom that caused the alleged violations. Ureña‘s decisions were reviewable by higher-level officials and thus could not be “final” policymaking decisions. Even if not reviewable, those decisions did not set municipal policy because Ureña‘s “status as a final decisionmaker with respect to teacher evaluations would not make him the final policymaker,” and a “handful of disciplinary letters does not constitute municipal policy.” J. App‘x 1251-52.
On the
Agosto timely appealed to this court.
DISCUSSION
I
Agosto argues that the district court erred by granting summary judgment on his
A
To establish First Amendment retaliation by a government actor, the plaintiff must demonstrate that “(1) his or her speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him or her; and (3) there was a causal connection between this adverse action and the protected speech.” Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (alterations omitted).
Each element of this analysis poses a question of law that we review de novo. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013).
Agosto asserts that his speech “can be divided into several different categories,” Reply Br. 4, each of which centers around certain grievances he filed. The defendants do not dispute that Agosto “spoke as a private citizen” when making those grievances, Montero, 890 F.3d at 394, but instead contend that none of his “categories” of speech addressed a matter of public concern, see id. We agree.
Agosto‘s first category of allegedly protected speech includes his complaints that Ureña did not fully comply with the collective bargaining agreement before making changes to the “C-6 menu.” J. App‘x 11-12. The form of Agosto‘s speech—internal union and PERB grievances—suggests the absence of a matter of public concern. Guarnieri, 564 U.S. at 398 (“A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view of view beyond the employment context.“). The specific subject of the grievances confirms that Agosto was not speaking on a matter of public interest. We have previously explained that “[l]abor versus management disputes, needless to say, almost invariably involve a conflict between the labor force and management over an issue that concerns the terms and conditions of employment” and that such disputes “often have a strong flavor of ‘personal grievance’ notwithstanding that the personal grievance is shared by numerous employees.” Lynch v. Ackley, 811 F.3d 569, 581 (2d Cir. 2016). Agosto‘s complaints about Ureña‘s changes to the C-6 menu are no exception.
Agosto does not identify how the dispute in this case about an internal CBA procedure for altering teachers’ planning periods is of “political, social, or other concern to the [New York City] community” rather than an internal dispute of interest to employees. Montero, 890 F.3d at 400. Indeed, compliance with the CBA procedure could be of only limited interest because whether Ureña
Agosto‘s second category of allegedly protected speech includes his May 2016 union grievance challenging Ureña‘s refusal to give Agosto copies of the school‘s budgets for 2011-14. Agosto wanted the budgets so he could “know where that money went, what happened with those budgets” because a previous principal had given too much budgetary influence to an assistant principal without sufficient input from the teachers’ union. J. App‘x 122-24, 932. Again, that Agosto filed an internal grievance suggests his actions were not related to a matter of public concern. Guarnieri, 564 U.S. at 398. Moreover, Agosto‘s request appears to have been prompted by his personal grievance against the school‘s leadership for “den[ying] input of the chapter” in financial decisions relating to the school, J. App‘x 122, rather than Agosto‘s desire “to protect the public welfare.” Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008); see Singer, 711 F.3d at 339 (noting that, in determining whether speech is on a matter of public concern, a relevant consideration is “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose“).
But even if Agosto sought these documents for reasons beyond his personal grievance, this court has previously held in an analogous context that it does “not think that the public has a substantial interest in minor payroll discrepancies amongst corrections department staff.” Singer, 711 F.3d at 340. Although there might be differences between corrections department staff and public school teachers, Agosto was unable to identify any more substantial interest in seeking the budget documents than was found to be insufficient in Singer. Accordingly, Agosto‘s request and grievance were not protected speech sufficient to establish a retaliation claim.
Agosto‘s third category of allegedly protected speech focuses on his June 2017 grievance with the PERB accusing Ureña of attempting to enlist another teacher to attend a union meeting and report back because Ureña hoped to have Agosto replaced as the union‘s chapter leader. As with the actions discussed above, the fact that Agosto filed an internal grievance suggests his speech was not related to a matter of public concern. Guarnieri, 564 U.S. at 398. In any event, whether this is described as a personal dispute between Agosto and Ureña or as a “[l]abor versus management dispute[],” the subject matter of his complaint confirms that it is not a matter of public concern. Lynch, 811 F.3d at 581. Lynch involved similar speech: the plaintiff had “fil[ed] a union grievance protesting [the police chief‘s] presence at a union meeting discussing the Department‘s flex-time policy.” Id. This court observed that it was “far from clear” that a management official‘s attempt to interlope in a union meeting would be of any public concern. Id. The same is true here, where Agosto‘s concern appears to have been the protection of his own union leadership position rather than to address a matter of general public interest.
Agosto‘s final category of allegedly protected speech relates to his June 2017 grievance with the PERB accusing
Agosto also claims that his underlying acts of advocacy for other teachers during union meetings was protected speech. But this court has rejected the notion that “all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union,” Lynch, 811 F.3d at 582, and Agosto does not explain how his advocacy regarding other employees’ internal employment disputes would transform those disputes into matters of public concern. See Guarnieri, 564 U.S. at 398.
Because none of Agosto‘s grievances or actions addressed a matter of public concern, his
Even if some of Agosto‘s actions were protected, however, summary judgment would still have been properly granted to Ureña because he would be entitled to qualified immunity. Qualified immunity precludes individual liability when “reasonably competent” officials could disagree about whether the conduct at issue would violate a clearly established right. Cartier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992). To overcome qualified immunity, the alleged right must have been clearly established by Second Circuit or Supreme Court precedent at the time of the allegedly illegal action, Montero, 890 F.3d at 402, but Agosto has pointed to no such precedent here, relying instead on district court decisions. The analysis above demonstrates that a reasonably competent principal would not have been on notice that Agosto‘s speech was on a matter of public concern. Moreover, at the time of Agosto‘s speech, our caselaw was unclear about whether filing employment grievances was an act undertaken as a private citizen, though that issue was subsequently clarified. See, e.g., id. at 402-03; Lynch, 811 F.3d at 582 n.13.
For these reasons, we affirm the district court‘s grant of summary judgment to Ureña on Agosto‘s
B
Agosto next challenges the district court‘s grant of summary judgment to the Department of Education on his Monell claim for municipal liability.
The elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Monell expressly prohibits respondeat superior liability for municipalities, Monell, 436 U.S. at 691, meaning that a plaintiff must demonstrate that “through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged,” Bd. of Cty. Comm‘rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997); Roe v. City of Waterbury, 542 F.3d 31, 40 (2d Cir. 2008). “[G]overnments should be held responsible when, and only when, their official policies cause their employees to violate another person‘s constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (plurality opinion).
Rather than argue that there is a written municipal policy or an unwritten “practice [that] is so widespread as to have the force of law,” Brown, 520 U.S. at 404, Agosto pursues Monell liability on the theory that Ureña‘s individual actions “represent official policy” for the entire Department of Education, Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000). The Supreme Court has said that a municipality may be liable for the acts of a single official—but only if that official is someone “whose edicts or acts may fairly be said to represent official policy” for the entire municipality. Monell, 436 U.S. at 694. It is not enough that an official had discretion to make a decision that was unreviewable. Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003). Rather, the official must have been sufficiently “high up in the municipal hierarchy,” Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992), that he was “responsible under state law for making policy in that area of the municipality‘s business,” Jeffes, 208 F.3d at 57 (emphasis and alteration omitted). The authority to make policy “necessarily” means “the authority to make final policy.” Praprotnik, 485 U.S. at 127. Stated another way, the official must have had state law “authority to adopt rules for the conduct of [the municipal] government.” Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992).
“Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law,” Jeffes, 208 F.3d at 57 (internal citations omitted), and therefore must be resolved “before the case is submitted to the jury,” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (emphasis omitted).
Agosto points to no state authority indicating that a New York City school principal has final “responsib[ility] under state law for making policy” in any “area of the [Department of Education‘s] business” at issue in this case, Jeffes, 208 F.3d at 57 (emphasis omitted), such that his “edicts or acts” would be considered to “represent official policy” for the entire municipality, Monell, 436 U.S. at 694.4 To the contrary, New York State law establishes that New York City school principals such as Ureña are “[s]ubject to the regulations of the chancellor,”
Because state law invests the chancellor with such authority, New York‘s highest court has held that “the city board [of education] and the Chancellor are responsible for policy having city-wide impact.” N.Y.C. Sch. Bds. Ass‘n v. Bd. of Educ. of City Sch. Dist., 39 N.Y.2d 111, 119 (1976).
Accordingly, state law provides “that there is a[] final policymaker other than [Principal Ureña] with respect to” the areas of municipal business for which Agosto claims Ureña was setting policy. Jeffes, 208 F.3d at 60 (emphasis added); see Praprotnik, 485 U.S. at 127 (holding that the “authority to make municipal policy is necessarily the authority to make final policy“). The Supreme Court has cautioned that “a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it.” Praprotnik, 485 U.S. at 126.
Because the chancellor appears to be the final policymaker for the Department of Education with respect to teacher discipline and school administration, Agosto has difficulty articulating precisely how a school principal such as Ureña could have established municipal policy. Agosto initially contended that “Ureña issued Agosto [disciplinary letters and bad reviews] to implement the state and city policy of disciplining tenured teachers pursuant to
Agosto has apparently settled on the theory that Ureña‘s disciplinary letters and negative evaluations were unreviewable by higher-level officials within the Department of Education, making Ureña the de facto final municipal policymaker on those specific matters involving Agosto. Even assuming that Ureña‘s actions were unreviewable, Agosto‘s claim still fails because the Supreme Court has rejected the “concept of ‘de facto final policymaking authority.‘” Praprotnik, 485 U.S. at 131. A municipality‘s “going along with discretionary decisions made by [its] subordinates … is not a delegation to them of the authority to make policy.” Id. at 130; Auriemma, 957 F.2d at 401 (“Authority to make a final decision need not imply authority to establish rules.“). Agosto must demonstrate that “through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged,” Brown, 520 U.S. at 404, but he has demonstrated no such deliberate conduct by the municipality here. The only deliberate actor was Ureña. Moreover, by equating a final decisionmaker with a final policymaker, Agosto‘s approach would effectively impose respondeat superior liability—making the municipality liable for the conduct of its employees—in violation of Monell itself. Monell, 436 U.S. at 691.
Agosto responds that even if Ureña were not the final municipal policymaker for teacher discipline and evaluations, he was the final policymaker at least for his own “discriminatory and harassing behavior towards Mr. Agosto.” Appellant‘s Br. 28. In support of this argument, Agosto relies on a string of district court decisions that cite one another for the proposition that “a public school principal acts as a final policymaker to the extent that the ultimate harm that befell the plaintiff was under the principal‘s control.”7 But by erroneously equating a principal‘s final decisions
Our conclusion that a New York City principal does not have municipal policymaking authority for Monell purposes here finds additional support in this court‘s decision in Hurdle v. Board of Education of City of New York, 113 F. App‘x 423 (2d Cir. 2004). That case is especially instructive because we held that a New York City superintendent‘s final decision to transfer a principal did not set municipal policy.8 “Any city acts exclusively through agents. If it were enough to point to the agent whose act was the final one in a particular case, we would have vicarious liability.” Hurdle, 113 F. App‘x at 427 (alteration omitted). Hurdle involved a superintendent—an official who outranks a principal such as Ureña—but this court explained that even when the official “is the apex of a bureaucracy,” that merely “makes the decision ‘final’ but does not forge a link between ‘finality’ and ‘policy.‘” Id. The ability to
make a final transfer decision for one particular employee “does not establish that [the official] had the authority to set the policy authorizing involuntary employee transfers” for the entire municipality. Id. The same is true here. Even assuming Ureña‘s discipline, evaluations, and harassing behavior were final decisions, those acts did not set final municipal policy because Ureña lacked policymaking authority under state law.
Because Agosto‘s Monell claim rests on his erroneous theory that Ureña was a final policymaker for the New York City Department of Education, we affirm the district court‘s grant of summary judgment to the Department on Agosto‘s
II
Agosto next challenges the district court‘s grant of summary judgment on his Title VII claims for a sex-based hostile work environment and for retaliation. Reviewing the matter de novo, Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 842 (2d Cir. 2013), we affirm.
A
The district court concluded that Agosto‘s hostile work environment claim failed because he did not show an objectively hostile workplace or that the allegedly harassing conduct was because of Agosto‘s sex. We affirm on the first basis and therefore do not address the second.
A hostile work environment claim requires a plaintiff to show that his or her workplace was “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his or] her employment were thereby altered.” Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013). “This test has objective and subjective elements: the misconduct shown must be ‘severe or pervasive enough to create
In support of his claim that he suffered a hostile work environment, Agosto contends that Ureña would “stare,” “sneer,” “cat-call and clap” at Agosto, and—on a few occasions over the course of a year—sang or talked in an unusual manner to Agosto. These latter incidents include once singing lyrics from the musical Annie while staring at Agosto, once saying “Hi, Mr. Agosto” in “a feminine voice,” and once walking closely to Agosto while yelling “It‘s a beautiful day.” Appellant‘s Br. 36-37; J. App‘x 971, 1011. The district court did not err in concluding that these acts are insufficient to create an objectively hostile workplace. See Desardouin, 708 F.3d at 105 (noting that the workplace must have been “severely permeated with discriminatory intimidation, ridicule, and insult“). Title VII is not “a general civility code” but rather “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim‘s employment.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998).
Agosto responds by pointing to two discrete acts that he claims were so severe that, despite not being pervasive conduct, nonetheless created a hostile work environment. The first such act was in March 2016, when Agosto claims that Ureña stood closely behind Agosto—but did not touch him—while Agosto was bending over. In his briefing to this court, Agosto describes this as a “simulated act of anal penetration” on Agosto‘s body. Appellant‘s Br. 35. That is a serious charge. But it is contradicted by Agosto‘s own sworn affidavit filed at the district court. In opposition to summary judgment, Agosto attached an affidavit made under penalty of perjury in which he states that Ureña “began sexually harassing me in January 2017“—not in March 2016 or earlier—and the “first incident” of harassment was the January 2017 lollipop episode. J. App‘x 971. Agosto‘s contention that the first instance of harassment was actually in March 2016 therefore contradicts his sworn affidavit and cannot create a material dispute of fact. See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (holding that a party may not “create a material issue of fact” by “disputing his own prior sworn testimony“). Moreover, Agosto‘s affidavit demonstrates that, at the time of summary judgment, even Agosto himself did not view Ureña‘s act in March 2016 as amounting to sexual harassment, let alone an incident severe enough on its own to create a hostile work environment. See Alfano, 294 F.3d at 374 (holding that, to create a triable issue, “the victim must also subjectively perceive that environment to be abusive“).
The second serious act that Agosto identifies was in January 2017, when Ureña allegedly looked at Agosto while licking a lollipop. During his deposition, Agosto gave divergent descriptions of what he believes Ureña did with the lollipop, ranging from “simulating fellatio, back and forth in his mouth,” J. App‘x 1002, to testifying just seconds later that Ureña was merely doing “[w]hat you do when you lick lollipops,” id. Even assuming Ureña did suggestively lick a lollipop, we conclude that, while offensive and inappropriate, that one-time act was not sufficiently severe to alter the terms of Agosto‘s
employment. Although a single incident can create a hostile work environment, the incident must have been “extraordinarily severe” and therefore is reserved only for the most egregious conduct. Desardouin, 708 F.3d at 105. For example, this standard was met when a plaintiff was raped, Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001), or was “punched in the ribs,” “temporarily blinded by having mace sprayed in his eyes,” and “covered ... with shaving cream” all while being subjected to “racially offensive comments.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 213, 230 (2d Cir. 2004). By contrast, this court has held that there was insufficient evidence of a hostile work environment when, for example, a plaintiff‘s colleague made a crude comment about her appearance and then “deliberately touched [her] breasts with some papers that he was holding in his hand.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), abrogated on other grounds by Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Although offensive and inappropriate, Ureña‘s alleged act of suggestively licking a lollipop is not in the category of “extraordinarily severe” single actions that create a hostile work environment, such as the acts in Ferris and Patterson. Nor was Ureña‘s alleged act even as severe as the intimate touching and sexualized comment that were held to be insufficient to survive summary judgment in our prior, binding decision in Quinn. Agosto does not claim that Ureña touched him at all, let alone that Ureña deliberately touched a sensitive body part as occurred in Quinn. Nor does
Because there was no objectively and subjectively hostile work environment that altered the terms of Agosto‘s employment, we affirm the district court‘s grant of summary judgment on Agosto‘s hostile work environment claim.11
B
Agosto also appeals the district court‘s grant of summary judgment on his Title VII retaliation claim. To establish a prima facie case of Title VII retaliation by a non-federal employer, an employee must show that (1) “he was engaged in protected activity,” (2) “the employer was aware of that activity,” (3) the employee suffered “a materially adverse action,” and (4) there was “a causal connection between the protected activity and that adverse action.” Rivera v.
Rochester Genesee Reg‘l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (alteration omitted).12
We agree with the district court that Agosto failed to demonstrate an adequate causal link between his protected activity and allegedly adverse actions, and accordingly we do not address the other prima facie elements. In support of causation, Agosto relies solely on temporal proximity, and the closest chronological gap was the 3.5-month period between the EEOC complaint he filed on March 16, 2017, and the “letter to file” Ureña issued on June 27, 2017. This court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity, see Burkybile v. Bd. of Educ. of Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir. 2005), but even Agosto acknowledges that a gap of “more than several months” is typically too long by itself to survive summary judgment. Appellant‘s Br. 40. Even assuming some weak causal inference from the 3.5-month gap, that inference is fatally undermined by the fact that the June 2017 letter to file was triggered by an independent actor—the Parent Chairperson of the School
protected activity. Agosto‘s other alleged acts of retaliation are even more remote in terms of chronological proximity and therefore do not present triable issues.
The district court correctly granted summary judgment on Agosto‘s Title VII retaliation claim.
CONCLUSION
We AFFIRM the district court‘s grant of summary judgment to the defendants.
LOHIER, Circuit Judge, concurring in part and concurring in the judgment:
I concur fully in the majority‘s excellent opinion except for Section II.A, which affirms the District Court‘s dismissal of Agosto‘s hostile work environment claim stemming from an alleged incident of sexual harassment in March 2016. In my view, the only reason to affirm the dismissal of that claim is that it was unsupported by the district court record. I respectfully disagree with the additional reason the majority opinion supplies.
To explain why, I turn to the procedural background. In opposing summary judgment, Agosto submitted a sworn affidavit that failed to mention the March 2016 incident and pointed instead to another event nine months later, in January 2017, as the first time he was harassed. Agosto first described the March 2016 incident of sexual harassment in his brief in opposition to the defendants’ motion for summary judgment, see J. App‘x 896, and in his Rule 56.1 Counterstatement, see J. App‘x 946. In their reply brief in support of the motion, furthermore, the defendants quoted part of Agosto‘s deposition testimony relating to the March 2016 incident. Agosto testified as follows: “I was bending down, and I was bending down to speak to them, and my derriere was up, arched, and all of a sudden I felt something hovering over me . . . . I turned around, and I see [Ureña].” J. App‘x 1236.
As the majority explains, although Agosto referred to the incident in his brief and cited to the relevant deposition transcript pages describing the incident, he failed to attach the pages to his summary judgment papers so that they could properly be considered by the District Court as part of the summary judgment record. We should affirm the dismissal of the claim for that limited reason alone, and I would have ended the analysis there.
But the majority opinion also affirms on the additional ground that the District Court could in any event have disregarded Agosto‘s testimony about the March 2016 incident on summary judgment because it “contradicted” Agosto‘s sworn affidavit, which failed to mention the incident. See Majority Op. at 25. This approach is both unnecessary and, in my view, a mistake. First, it ignores that “when a district court is asked to consider contradictory deposition testimony of a fact witness at summary judgment, a district court may not discredit a witness‘s deposition testimony . . . because the assessment of a witness‘s credibility is a function reserved for the jury.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 206 (2d Cir. 2014) (quotation marks omitted). Second, it reflects a misunderstanding of the sham issue of fact doctrine, which “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party‘s previous sworn testimony.” Id. at 205 (emphasis omitted) (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)). The affidavit can be disregarded (and summary judgment can thus
To be sure, the omission of the March 2016 incident from Agosto‘s sworn affidavit could well prompt a factfinder to think that Agosto is lying about the incident. But it can hardly be said to trigger the sort of real, “inescapable and unequivocal” contradiction that permits a district court to reject otherwise admissible evidence based on the sham issue of fact doctrine. Bentley, 935 F.3d at 86; see Rivera v. Rochester Genesee Reg‘l Transp. Auth., 743 F.3d 11, 22-23 (2d Cir. 2014) (that plaintiff did not initially complain of the slurs to his employer “may lead a factfinder to find that claim not credible, but there is no real, unequivocal, and inescapable contradiction“). Whatever mismatch exists between Agosto‘s testimony and his affidavit, it was not alone a reason to prevent the District Court from considering the March 2016 incident at summary judgment. See Hayes, 84 F.3d at 620.
For this reason, I respectfully concur in the judgment as to Section II.A and concur fully in all other respects.