13‐0796‐cv Castagna v. Luceno
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.
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 5th day of March, two thousand fourteen.
PRESENT: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges, SIDNEY H. STEIN,* District Judge.
PATRICIA CASTAGNA, NICK SARRACCO, Plaintiffs‐Appellants,
‐ v. ‐ No. 13‐0796‐cv
BILL LUCENO, MAJESTIC KITCHENS, INC., Defendants‐Appellees.
E. CHRISTOPHER MURRAY, Ruskin Moscou Faltischek, P.C., Uniondale, N.Y., for Plaintiffs‐Appellants.
COSTANTINO FRAGALE, Mamaroneck, N.Y., for Defendants‐Appellees (on submission).
* The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED IN PART and VACATED AND REMANDED IN PART.
Plaintiffs‐Appellants Patricia Castagna and Nick Sarracco appeal from
the judgment of the United States District Court for the Southern District of
New York entered February 4, 2013, insofar as that judgment made
reviewable on appeal: (1) a February 4, 2013 order (Ramos, J.) granting
Defendants‐Appellees’ motion for summary judgment as to Castagna’s sex
discrimination claims; and (2) an April 26, 2011 order (Seibel, J.) granting
Defendants‐Appellees’ motion to dismiss Sarracco’s retaliation claims. We
assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.1
I. CASTAGNA’S SEX DISCRIMINATION CLAIMS
We review de novo the district court’s grant of summary judgment on
Castagna’s claims that she was subjected to a hostile work environment and
constructively discharged in violation of Title VII of the Civil Rights Act of
1964 and the New York State Human Rights Law (“NYSHRL”).2 See Redd v.
N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012).
A. Hostile Work Environment. — Based on the evidence in the record,
a reasonable jury could conclude that Castagna’s workplace was “permeated
with discriminatory intimidation, ridicule, and insults, [which were]
sufficiently severe or pervasive to alter the conditions of her employment,” see
Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004) (alteration and
1 We address Castagna’s remaining argument on appeal in an opinion filed concurrently with this summary order.
2 Because claims pursuant to these two statutes “require the same standard of proof,” see Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999), we discuss the substance of Castagna’s federal and state discrimination claims interchangeably.
2 quotation marks omitted), and that a hostile work environment existed
because of Castagna’s sex, see Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.
2001).
First, “the record, taken in the light most favorable to” Castagna, see
Redd, 678 F.3d at 169, contains evidence that Luceno directed physical threats
at three female employees, including Castagna, on separate occasions, but he
never physically threatened men. Under our precedents, such evidence of
physical threats is highly probative of the severity of the alleged hostile work
environment. See, e.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537, 550 (2d Cir. 2010)
(the district court erred in failing “to take into consideration . . . physical
threats”); Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000) (the
“physically threatening nature” of an employer’s actions brought the “case
over the line separating merely offensive or boorish conduct from actionable”
conduct). The lack of any evidence that Luceno physically threatened men —
as opposed to women — supports a reasonable inference that Luceno singled
out women for physical threats because of their sex. See Brown, 257 F.3d at
252.
Second, the record is replete with evidence that Luceno’s most extreme
outbursts were directed at women. A reasonable jury would be entitled to
conclude that such comments — at least in conjunction with the evidence of
physical threats — were either “sufficiently severe or sufficiently pervasive . . .
to have altered [Castagna’s] working conditions.” See Redd, 678 F.3d at 175.
Given the gender‐explicit content of several of these outbursts, including but
not limited to referring to other women as “bitch[es],” the district court erred
in concluding that no reasonable jury could find that Castagna was subjected
to a hostile work environment because of her sex.
Defendants‐Appellees’ alternate arguments for affirmance fail. First,
any failure by Castagna to mitigate damages would not by itself bar her
3 recovery of compensatory damages for emotional distress. The authorities
that Defendants‐Appellees cite stand only for the proposition that a plaintiff
may forfeit backpay if she fails to mitigate damages. See 42 U.S.C. § 2000e‐
5(g)(1) (providing that “back pay,” but not other forms of relief, shall be
“reduce[d]” by “[i]nterim earnings or amounts earnable with reasonable
diligence”); Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) (construing § 2000e‐
5(g) as creating a duty to mitigate “backpay” damages); see also Broadnax v.
City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005) (discussing Title VII’s “duty
to mitigate” in relation only to a “lost wages award”); Dailey v. Societe
Generale, 108 F.3d 451, 454 (2d Cir. 1997) (noting that the defendant in that
case moved to set aside only a “back pay damage award” for plaintiff’s
alleged failure to mitigate damages).
Second, in light of Castagna’s deposition testimony and her
Free access — add to your briefcase to read the full text and ask questions with AI
13‐0796‐cv Castagna v. Luceno
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.
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 5th day of March, two thousand fourteen.
PRESENT: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges, SIDNEY H. STEIN,* District Judge.
PATRICIA CASTAGNA, NICK SARRACCO, Plaintiffs‐Appellants,
‐ v. ‐ No. 13‐0796‐cv
BILL LUCENO, MAJESTIC KITCHENS, INC., Defendants‐Appellees.
E. CHRISTOPHER MURRAY, Ruskin Moscou Faltischek, P.C., Uniondale, N.Y., for Plaintiffs‐Appellants.
COSTANTINO FRAGALE, Mamaroneck, N.Y., for Defendants‐Appellees (on submission).
* The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED IN PART and VACATED AND REMANDED IN PART.
Plaintiffs‐Appellants Patricia Castagna and Nick Sarracco appeal from
the judgment of the United States District Court for the Southern District of
New York entered February 4, 2013, insofar as that judgment made
reviewable on appeal: (1) a February 4, 2013 order (Ramos, J.) granting
Defendants‐Appellees’ motion for summary judgment as to Castagna’s sex
discrimination claims; and (2) an April 26, 2011 order (Seibel, J.) granting
Defendants‐Appellees’ motion to dismiss Sarracco’s retaliation claims. We
assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.1
I. CASTAGNA’S SEX DISCRIMINATION CLAIMS
We review de novo the district court’s grant of summary judgment on
Castagna’s claims that she was subjected to a hostile work environment and
constructively discharged in violation of Title VII of the Civil Rights Act of
1964 and the New York State Human Rights Law (“NYSHRL”).2 See Redd v.
N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012).
A. Hostile Work Environment. — Based on the evidence in the record,
a reasonable jury could conclude that Castagna’s workplace was “permeated
with discriminatory intimidation, ridicule, and insults, [which were]
sufficiently severe or pervasive to alter the conditions of her employment,” see
Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004) (alteration and
1 We address Castagna’s remaining argument on appeal in an opinion filed concurrently with this summary order.
2 Because claims pursuant to these two statutes “require the same standard of proof,” see Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999), we discuss the substance of Castagna’s federal and state discrimination claims interchangeably.
2 quotation marks omitted), and that a hostile work environment existed
because of Castagna’s sex, see Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.
2001).
First, “the record, taken in the light most favorable to” Castagna, see
Redd, 678 F.3d at 169, contains evidence that Luceno directed physical threats
at three female employees, including Castagna, on separate occasions, but he
never physically threatened men. Under our precedents, such evidence of
physical threats is highly probative of the severity of the alleged hostile work
environment. See, e.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537, 550 (2d Cir. 2010)
(the district court erred in failing “to take into consideration . . . physical
threats”); Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000) (the
“physically threatening nature” of an employer’s actions brought the “case
over the line separating merely offensive or boorish conduct from actionable”
conduct). The lack of any evidence that Luceno physically threatened men —
as opposed to women — supports a reasonable inference that Luceno singled
out women for physical threats because of their sex. See Brown, 257 F.3d at
252.
Second, the record is replete with evidence that Luceno’s most extreme
outbursts were directed at women. A reasonable jury would be entitled to
conclude that such comments — at least in conjunction with the evidence of
physical threats — were either “sufficiently severe or sufficiently pervasive . . .
to have altered [Castagna’s] working conditions.” See Redd, 678 F.3d at 175.
Given the gender‐explicit content of several of these outbursts, including but
not limited to referring to other women as “bitch[es],” the district court erred
in concluding that no reasonable jury could find that Castagna was subjected
to a hostile work environment because of her sex.
Defendants‐Appellees’ alternate arguments for affirmance fail. First,
any failure by Castagna to mitigate damages would not by itself bar her
3 recovery of compensatory damages for emotional distress. The authorities
that Defendants‐Appellees cite stand only for the proposition that a plaintiff
may forfeit backpay if she fails to mitigate damages. See 42 U.S.C. § 2000e‐
5(g)(1) (providing that “back pay,” but not other forms of relief, shall be
“reduce[d]” by “[i]nterim earnings or amounts earnable with reasonable
diligence”); Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) (construing § 2000e‐
5(g) as creating a duty to mitigate “backpay” damages); see also Broadnax v.
City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005) (discussing Title VII’s “duty
to mitigate” in relation only to a “lost wages award”); Dailey v. Societe
Generale, 108 F.3d 451, 454 (2d Cir. 1997) (noting that the defendant in that
case moved to set aside only a “back pay damage award” for plaintiff’s
alleged failure to mitigate damages).
Second, in light of Castagna’s deposition testimony and her
production of a form authorizing counsel for Defendants‐Appellees to obtain
her unemployment file, Defendants‐Appellees have not met their “burden to
demonstrate that . . . [Castagna] made no reasonable effort to find” suitable
work. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998).
Finally, absent any finding by the district court that Castagna acted
“with a culpable state of mind” in destroying any relevant evidence, cf. Byrnie
v. Town of Comwell, 243 F.3d 93, 109 (2d Cir. 2001), and because “outright
dismissal of [a] lawsuit” as a sanction for spoliation “should be imposed only
in extreme circumstances, usually after consideration of alternative, less
drastic sanctions,” see West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 780 (2d
Cir. 1999), we decline to impose that sanction in the first instance.
We accordingly vacate the district court’s grant of summary judgment
on Castagna’s hostile work environment claim pursuant to Title VII as to
4 Defendant‐Appellee Majestic Kitchens, Inc.,3 and her parallel claim pursuant
to the NYSHRL as to both Defendants‐Appellees.
B. Constructive Termination. — The district court granted summary
judgment for Defendants‐Appellees as to Castagna’s constructive discharge
claims solely on the ground that Castagna failed to establish the lesser
standard for a hostile work environment claim. In light of our disposition
regarding Castagna’s hostile work environment claims, we vacate the
dismissal of Castagna’s constructive discharge claims and remand for the
district court to reconsider those claims in the first instance. See Aulicino v.
N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 85 (2d Cir. 2009).
II. SARRACCO’S RETALIATION CLAIM
We review de novo the district court’s grant of Defendants‐Appellees’
motion to dismiss Sarracco’s Title VII and NYSHRL retaliation claims. See
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).
As an initial matter, Sarracco’s notice of appeal in this court was
timely. See 10 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 2654 (3d ed. updated 2013) (“Absent a certification under Rule
54(b) any order in a multiple‐party . . . action, even if it appears to adjudicate a
separable portion of the controversy, is interlocutory.”).
In his opening brief on appeal, Sarracco never addressed the specific
ground on which the district court dismissed his retaliation claims, namely
that his charge filed with the U.S. Equal Employment Opportunity
Commission failed to put that entity on notice of the fact that the alleged
discrimination was gender‐based. Sarracco therefore abandoned any
challenge to the district court’s dismissal of his retaliation claims. See JP
3 On appeal, Castagna does not challenge the district court’s dismissal of her Title VII claim against defendant Luceno on the ground that “individuals are not subject to liability under Title VII.” See Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2009).
5 Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d
Cir. 2005). We accordingly affirm the district court’s dismissal of Sarracco’s
retaliation claims.
III. CONCLUSION
We have considered the parties’ remaining arguments and conclude
that they lack merit. For the foregoing reasons and those explained in the
opinion filed concurrently with this order, the judgment of the district court is
affirmed in part and vacated and remanded in part. The case is remanded for
further proceedings consistent with this order.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK