Mаry Ann CAMARDA, Plaintiff-Appellant, v. Captain Elwood J. SELOVER, in his individual and professional capacity, Lieutenant Michael Schaefer, in his individual and professional capacity, Sergeant Robert Critelli, in his individual and profеssional capacity, Sergeant Herbert Mai, in his individual and professional capacity, Sergeant Ralph Milone, in his individual and professional capacity, Sergeant Smirnov, in his individual and professional capacity, Sergeant Clark Bein-Aime, in his individual and professional capacity, City of New York, Raymond Kelly, Police Commissioner of The New York City Police Department, in his individual and professional cаpacity, Sergeant Chester Oleary, in his individual and professional capacity, Defendants-Appellees.
No. 15-3262-cv
United States Court of Appeals, Second Circuit.
12/14/2016
4. Conclusion
We have considered Wernick‘s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court and attending orders are AFFIRMED.
FOR APPELLEES: Richard Dearing, Of Counsel, and Jason Anton, Of Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.
PRESENT: GUIDO CALABRESI, REENA RAGGI, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Plaintiff Mary Ann Camarda appeals from an award of summary judgment in favor of the City of New York and various police officials on her claims of sex discrimination, hostile work environment, and retaliation under
We review an award of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences and resolving all ambiguities in that party‘s favor. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision to affirm for substantially the reasons stated by the district court in its September 16, 2015 decision and order.
1. Sex Discrimination Under § 1983 , Title VII, the NYSHRL, and the NYCHRL
Discrimination claims brought under
NYCHRL claims are analyzed separately and independently. See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75 (2d Cir. 2015). To withstand summary judgment, “the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reаson. The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that discrimination played no role in its actions.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013) (emphasis in original) (alteration and internal quotation marks omitted).
The parties here dispute only whether the circumstances of Camarda‘s
In faulting the district court‘s determination that the record did not admit such an inference, Camarda points first to the deposition testimony оf Sergeants Robert Festa and William Hassler and Officer Martin King.
Sergeant Festa testified that defendant Sergeant Milone “was looking to hurt” Camarda and would assign her to desk detail to preclude her from making the arrests her job required. See J.A. 478. Festa testified that he was transferred for refusing to “participate in getting Mary Ann Camarda with unnecessary discipline[ ].” See id. at 490-91. Officer King‘s testimony raises questions about whether Milоne was justified in disciplining Camarda for inappropriate court attire. Like the district court, we conclude that even if this testimony indicates that Camarda was treated unfairly, it does not raise the neсessary inference of a sex-based motivation. See McPherson v. New York City Dep‘t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (explaining that essential question in discrimination cases is motivation of employer, not reliability of allegations against plaintiff). The fact that Camarda was one of only three or four women assigned to her task force cannot, by itself, raise an inference that sex bias motivated the adverse actions, particularly where, as herе, the record shows that defendants subjected male officers to some of the same disciplinary actions for some of the same actions for which Camarda was cited. See, e.g., Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (concluding nо inference of discriminatory intent when evidence showed that male supervisors were disciplined for same infraction in same way as female supervisor plaintiff, particularly in light of uncontroverted evidence that plaintiff clearly violated policy).
Second, Camarda asserts that defendant Sergeant Mai‘s comment, “[y]ou are a girl and you can‘t type,” J.A. 325, made in disciplining her for not retyping а summons form, raises an inference of discriminatory motive. The argument fails because Camarda does not dispute that her actions—contesting a superior‘s retype order after preparing a flawed summons—warranted discipline. Nor did she adduce any evidence contradicting testimony that male officers were also assigned to an outdoor foot-post as discipline. In these circumstances, Mai‘s stray remark about expected female typing skills, if it was, in fact, made, was insensitive, but it does not give rise to the inference of discriminatory motivation necessary to make out a prima facie case under
Third, Camarda argues that discriminatory motive can be inferred from the fact that defendant Sergeant O‘Leary “pointed at [her], said ‘[n]o low cut shirts’ and ... was looking [at her].” J.A. 367; Appellees’ Br. аt 26. The argument fails because O‘Leary‘s disciplinary action was based not
Fourth, Camarda herself testified that taskforce members told her that her superiors did not “want [her] around because [she] [is] a female.” J.A. 348, 655. Like the district court, we conclude that these statements are inadmissible hearsay and, thus, cannot be considered as evidence of defendants’ discriminatory motivations. See Rubens v. Mason, 387 F.3d 183, 188 (2d Cir. 2004) (clarifying that on summary judgment, “court may rely only on material that would be admissible at trial“). Camarda neither explicitly acknowledges the district court‘s conclusion as to this evidence, nor challenges it on appeal.
In sum, because Camarda failed to adduce sufficient evidence to make out a prima facie case of employment discrimination under either the McDonnell Douglas framework or the standard governing her NYCHRL claim, defendants were entitled to summary judgment on her claims of sex discrimination.
2. Hostile Work Environment and Retaliation Claims
Where, as here, a counseled non-moving party submits “a partial response arguing that summary judgment should be denied as to some claims while not mentioning others,” that response “may be deemed an abandonment of the unmentioned claims.” Jackson v. Federal Express, 766 F.3d 189, 195 (2d Cir. 2014). Even “[w]here abandonment by a counseled party is not explicit,” a court mаy infer abandonment “from the papers and circumstances viewed as a whole.” Id. at 196.
The circumstances and papers here fairly supported an inference of Camarda‘s abandonment of her hostile work environment and retaliation claims. Specifically, after responding to each of defendants’ proposed undisputed facts, Camarda‘s opposition brief argued only that summаry judgment should be denied as to her discrimination claims. See id. (upholding inference of abandonment where plaintiff fully responded to defendant‘s proposed undisputed facts and opposition brief аrgued against grant of summary judgment only as to one claim); accord Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 144 (2d Cir. 2016) (upholding inference of abandonment when party moved for summary judgment on all claims and non-moving party opposed motion with respect to all but one variety of claim).
Further, Camarda‘s appellate brief neither mentions nor refutes the district court‘s abandonment ruling, further signaling that the claims were abandoned. See Higazy v. Templeton, 505 F.3d 161, 168 n.7 (“An argument or an issue that is not raised in the appellate brief may be considered abandoned.“); accord LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Accordingly, we affirm that ruling and decline to consider plaintiff‘s arguments regarding the merits of her retaliatiоn and hostile work environment claims.
3. Conclusion
We have considered all of Camarda‘s remaining arguments and conclude that they are without merit. Accordingly, the award of summary judgment in favor of defendants is AFFIRMED.