Rys v. Davis

Opinion

25-857 Rys v. Davis

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 for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 2nd day of April, two thousand twenty-six. 4 5 PRESENT: John M. Walker, Jr., 6 Richard J. Sullivan, 7 Joseph F. Bianco, 8 Circuit Judges. 9 ----------------------------------------------------------------------- 10 SAMANTHA RYS,

11 Plaintiff-Appellant, 12 v. No. 25-857 13 SABRINA DAVIS, TANYA JOHNSON,

14 Defendants-Appellees. 15 ----------------------------------------------------------------------- 16 APPEARING FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman & 17 Associates, Goshen, NY.

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1 APPEARING FOR APPELLEES: GILLIAN BARNA (Barbara D. Underwood 2 and Judith N. Vale, on the brief), New York 3 State Office of the Attorney General, New 4 York, NY.

5 Appeal from a judgment of the United States District Court for the Southern 6 District of New York (Karas, J.). 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 8 AND DECREED that the judgment of the district court is AFFIRMED. 9 For three months until her resignation in August 2021, Plaintiff-Appellant 10 Samantha Rys worked as a parole officer (“PO”) for the Brooklyn bureau of New 11 York’s Department of Corrections and Community Supervision (“DOCCS”). As a 12 PO at DOCCS, Rys was supervised by a senior parole officer, Tanya Johnson, who 13 in turn reported to the Brooklyn bureau chief, Sabrina Davis (together, 14 “Defendants-Appellees”). Johnson and Davis are Black women, while Rys is a 15 Caucasian woman. 16 In December 2022, Rys sued her supervisors under 42 U.S.C. § 1983, alleging 17 that Davis and Johnson created a hostile work environment and constructively 18 discharged Rys because of her race, in violation of the Equal Protection Clause of 19 the Fourteenth Amendment. 20 The district court granted summary judgment for Defendants-Appellees 21 after determining that Rys failed to meet the evidentiary burden on her hostile 22 work environment and constructive discharge claims. Rys appeals from the 23 district court’s grant of summary judgment. In this appeal, we consider whether 24 the district court erred in discrediting Rys’s declaration as a “sham affidavit” and 25 in granting summary judgment for Defendants-Appellees. We assume the parties’

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1 familiarity with the underlying facts, procedural history, and arguments on 2 appeal, to which we refer only as necessary to explain our decision. 3 We review a district court’s grant of summary judgment de novo. Back v. 4 Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Summary 5 judgment is appropriate when, viewing the evidence in the light most favorable to 6 the non-moving party, “there is no genuine issue as to any material fact” that could 7 lead to a judgment in the non-movant’s favor. Nabisco, Inc. v. Warner-Lambert Co., 8 220 F.3d 43, 45 (2d Cir. 2000); Fed. R. Civ. P. 56(a). 9 We find that Rys failed to produce evidence that would create a genuine 10 dispute of material fact precluding summary judgment against her. In coming to 11 this conclusion, we note certain “unequivocal[,] inescapable, [and] unexplained” 12 contradictions between Rys’s deposition testimony and the declaration she 13 submitted after Defendants moved for summary judgment. In re Fosamax Prods. 14 Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013) (per curiam). We agree with the district 15 court’s observation that these contradictions resulted from Rys’s declaration being 16 a sham affidavit and thus we disregard them. 17 I. “Sham Affidavit” 18 Per the sham affidavit or “sham issue[] of fact” doctrine, “a party may not 19 create an issue of fact by submitting an affidavit in opposition to a summary 20 judgment motion that, by omission or addition, contradicts the affiant’s previous 21 deposition testimony.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 22 1996). A sham issue of fact exists when the contradictions in a party’s affidavit, 23 compared to the party’s prior testimony, are “inescapable and unequivocal in 24 nature.” In re Fosamax Prods. Liab. Litig., 707 F.3d at 194. “[I]f there is a plausible

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1 explanation for discrepancies in a party’s testimony,” however, “the court 2 considering a summary judgment motion should not disregard the later testimony 3 because an earlier account was ambiguous, confusing, or simply incomplete.” 4 Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (per curiam) 5 (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)). We find 6 three contradictions between Rys’s prior testimony and her later declaration that 7 indicate that the later declaration is a “sham affidavit.” 8 First, Rys testified that while she did not know what other POs’ caseloads 9 looked like, Rys was assigned to “two precincts,” and this was somehow 10 “different” from others’ assignments. See Joint App’x at 147-48. 1 Her declaration 11 stated, in contrast, that she “was assigned to three police precincts” while “African 12 American parole officers were assigned one or two, most usually two.” Joint App’x 13 at 604 (Pl’s Decl. ¶ 7) (emphases added). To explain this contradiction, Rys refers 14 to general “remarks” made by her coworkers and a comment written by another 15 coworker on her farewell card stating, “I have nightmares about the 76, 78, and 16 84.” Joint App’x at 229, 605, 610-11. Rys alleges that this comment “refreshed [her] 17 recollection” that she was assigned to three, rather than two, precincts. Appellant 18 Brief at 30. Rys offers no evidence, however, to support her claim that her minority

1 “Q. . . . And did you – do you know what everybody else’s caseload looked like? A. I kept things in my lane. I don’t do that.” Joint App’x at 229 (Pl’s Dep. Tr. at 166:7-14). “Q. And is it your understanding that all the parole officers in the Brooklyn office had parolees within all five boroughs? A. Yes. My jurisdiction had two precincts though . . . which was different. Q. What do you mean by that? A. I don’t know. It just had two police [] precincts, so it was a different kind of community[,] I guess. Q. Okay. And do you know what those precincts were? A. I don’t remember the number of the precincts, no. They’re just police precincts . . . They were both in Brooklyn.” Id. at 147-48 (Pl’s Dep. Tr. at 84:11-85:5) (emphasis added).

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1 peers were assigned to fewer than three precincts, or that her caseload was more 2 onerous than theirs. 3 Rys’s explanation cannot cure the contradictory statements made in her 4 declaration. Like the district court, we find it “difficult to credit Plaintiff’s 5 conclusory assertion that the comment [in her farewell card] references [her] 6 assigned precincts when she testified that she did not recall her assigned precincts’ 7 numbers.” Special App’x at 22. In any case, even assuming that Rys was assigned 8 more precincts than her minority peers, this does not necessarily mean that Rys’s 9 caseload was more onerous than theirs. Because Rys offers no admissible evidence 10 to support the statements in her declaration, the district court properly 11 disregarded these contradictory facts as “sham.” See Mack v. United States, 814 F.2d 12 120, 124 (2d Cir. 1987) (“It is well settled in this [C]ircuit that a party’s affidavit 13 which contradicts h[er] own prior deposition testimony should be disregarded on 14 a motion for summary judgment.”). 15 Second, Rys testified about one instance in which, during her search for a 16 “field partner,” a racial comment was directed at her from another PO. 2 Special 17 App’x at 14-15 (citing Pl’s Dep. Tr. at 157:12-158:8, 159:16-21, 160:4-11) (describing 18 an incident where a non-party PO said that she would not accompany Rys unless

2 As relevant here, there were three types of “partners” for POs: field-training, office, and field.

When a PO arrives at the Brooklyn office, she is assigned a partner for on-the-job training – otherwise referred to as “a partner for ‘field training.’” Special App’x at 5. These partners are assigned by the bureau chief – here, Defendant-Appellee Davis. POs are also assigned partners “for office coverage” – office partners – who can handle tasks that arise if a particular PO is away from the office. Joint App’x at 462. Finally, POs are “encourage[d] . . . to go out in the field with a partner” for safety reasons – field partners – “in case a [PO] may need assistance with themselves or with the individual that’s out in the community.” Id. at 463-64 (emphasis added). These field partners were self-selected on an ad hoc basis without input from supervisors.

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1 she got a “spray tan”). In her declaration, however, Rys recounted “two occasions” 2 when “African American POs declined to partner” with her, including one 3 instance in which another PO allegedly called Rys a “snow cone.” Joint App’x at 4 604 (Pl’s Decl. ¶ 6) (emphasis added). To explain this second discrepancy, Rys 5 essentially argues that her “later sworn assertion addresse[d] an issue that was not 6 thoroughly or clearly explored” in her deposition and that, in any event, Rys had 7 raised the “snow cone” incident in her Complaint. In re World Trade Ctr. Lower 8 Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2d Cir. 2014) (alterations adopted 9 and internal quotation marks omitted) (citing Corio, 232 F.3d at 43); Appellant Brief 10 at 30-31. 11 Even if Rys was not specifically questioned about the “snow cone” incident, 12 she was generally asked about instances of perceived racism when seeking out 13 partnership pairings and failed to mention the “snow cone” incident at any point. 14 See generally Joint App’x at 218-25. Further, Rys’s Complaint did not describe the 15 “snow cone” incident as one made in the context of seeking a partner. See id. at 25 16 ¶ 18 (“Another co-worker told plaintiff she was the snow cone in the building and 17 made clear that she did not fit in and could not safely do her job on account of her 18 race”). But “factual issues created solely by an affidavit crafted to oppose a 19 summary judgment motion are not ‘genuine’ issues for trial,” Hayes, 84 F.3d at 19, 20 and we refuse to credit Rys’s affidavit testimony when her prior deposition 21 testimony offered no such allegation despite the opportunity to do so. 22 Defendants-Appellees offer an additional inconsistency that the district 23 court failed to note. They observe that Rys testified that one of her assigned 24 parolees was arrested for an incident that occurred after Rys was assigned to the

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1 parolee, see generally Joint App’x at 168-71, 198 (“I was assigned to him shortly 2 before that incident”), but in her declaration Rys states that her parolee’s parole 3 revocation hearing “concerned a matter which preceded [her] time as his assigned 4 parole officer and could have been handled by anyone.” Joint App’x at 607 ¶ 20 5 (emphasis added); see also Appellant Brief at 19. Rys offers no explanation for this 6 contradiction. As such, we discredit it. 7 Nonetheless, we disagree with one of the district court’s “sham” findings. 8 In particular, Rys testified that she “did not” report any instances of negative 9 “treatment” she received from other POs to her supervisors, Joint App’x at 222-23 10 (Pl’s Dep. Tr. 159:16-160:18), while her declaration states that she “repeatedly 11 raised [the] issue with Johnson about having to go out alone, without a partner, 12 and asked for her assistance in that regard,” Special App’x at 15; Joint App’x at 13 605 (¶ 10). Because our task is to “[c]onstrue the record evidence in the light most 14 favorable” to Rys and “draw all reasonable inferences in [her] favor,” we find no 15 inconsistency between these two statements. Torcivia v. Suffolk Cnty., 17 F.4th 342, 16 354 (2d Cir. 2021). We read Rys’s declaration to say that she repeatedly told 17 Johnson about her general desire to be partnered with another PO. But this does 18 not necessarily mean that Rys imparted to Johnson any negative treatment she 19 experienced in her search for such a partner. Ultimately, even if the district court 20 misinterpreted Rys’s declaration by finding a “sham” in this instance, the other 21 contradictions in Rys’s declaration were “unequivocal and inescapable,” and merit 22 our treatment of Rys’s entire declaration as a sham affidavit. In re Fosamax Prods. 23 Liab. Litig., 707 F.3d at 194.

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1 Together, the factual contradictions in Rys’s declaration cannot be said to 2 contain evidence “newly discovered.” Perma Rsch. & Dev. Co. v. Singer Co., 410 3 F.2d 572, 578 (2d Cir. 1969). Instead, Rys’s declaration “merely contradict[s][] h[er] 4 prior testimony” and is “largely unsubstantiated by any other direct evidence.” 5 Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (quoting Rule v. Brine, 6 Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)); Jeffreys, 426 F.3d at 551. Because the “[t]he 7 timing of the testimony recanting the prior sworn testimony clearly increase[s] the 8 likelihood that it was intended solely to defeat the motion for summary 9 judgment,” we conclude that Rys’s declaration was a sham affidavit. In re Fosamax 10 Prods. Liab. Litig., 707 F.3d at 195. 11 II. Hostile Work Environment 12 We now consider the merits of Rys’s claims. To bring a hostile work 13 environment claim under 42 U.S.C. § 1983, a plaintiff must “prove conduct (1) that 14 is objectively severe or pervasive[,] that is, conduct that creates an environment 15 that a reasonable person would find hostile or abusive . . . , (2) that the plaintiff 16 subjectively perceives as hostile or abusive . . . , and (3) that creates such an 17 environment because of plaintiff’s [membership in a protected class].” Tassy v. 18 Buttigieg, 51 F.4th 531, 533 (2d Cir. 2022) (quoting Brown v. Henderson, 257 F.3d 246, 19 252 (2d Cir. 2001)). The third element “may be proven by evidence of harassment 20 in such race-specific and derogatory terms as to make it clear that the harasser is 21 motivated by general hostility to the presence of individuals of a particular race in 22 the workplace, or by offering some circumstantial or other basis for inferring that 23 incidents race-neutral on their face were in fact discriminatory.” Tassy, 51 F.4th at 24 533 (alterations adopted) (quoting Pucino v. Verizon Commc’ns, Inc., 618 F.3d 112,

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1 117-18 (2d Cir. 2010)). Additionally, supervisors may be liable under Section 1983 2 if (1) they were personally involved and (2) acted with discriminatory intent that 3 was the ”but-for” cause of the hostile work environment. See Grullon v. City of New 4 Haven, 720 F.3d 133, 137-38 (2d Cir. 2013) (personal involvement); Naumovski v. 5 Norris, 934 F.3d 200, 214 (2d Cir. 2019) (“but-for”). 3 6 Rys alleges that Davis and Johnson subjected her to a hostile work 7 environment because they (1) did not assign Rys a field partner; (2) gave her a 8 more onerous work assignment than her minority peers; and (3) deviated from 9 standard practice and did not develop a plan of action after a parolee threatened 10 her. Rys’s first two examples are ones of alleged disparate treatment, while the 11 third is facially neutral. In all instances, Rys generally contends that Defendants- 12 Appellees’ “actions” made her feel “disposable” and that she perceived that this 13 behavior was racially motivated. Joint App’x at 223. Rys essentially concedes that 14 none of these actions were overtly racist, and the record contains no evidence that 15 Defendants-Appellees ever made racial remarks toward Rys. Instead, Rys spins 16 another web of circumstantial evidence to argue that Defendants-Appellees’ 17 actions were motivated by racial animus. 18 In general, “rel[iance] on conclusory allegations [and] unsubstantiated 19 speculation” are insufficient to make out a hostile work environment claim. 20 Jeffreys, 426 F.3d at 554 (internal quotation marks omitted). To the extent

3 Disparate treatment claims under the Equal Protection Clause of the Fourteenth Amendment require proof of intentional discrimination. In contrast, a disparate impact claim arising under Title VII does not require showing proof of discriminatory motive. Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 604-05 (2d Cir. 1986) (clarifying the difference between both standards). Here the Complaint alleges only violations of the Equal Protection Clause that require proof of intentional discrimination.

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1 Defendants-Appellees were personally involved in any of the events above, we 2 agree with the district court that “Plaintiff failed to carry her burden . . . [and] 3 show[] that the alleged conduct occurred because she is Caucasian.” Special App’x 4 at 20. For these reasons, Rys failed to show that she was discriminated against on 5 the basis of her race, making summary judgment for Defendants-Appellees 6 proper. 7 A. Assignment of Partners 8 We reject Rys’s argument that, unlike her minority peers, she was never 9 assigned a field partner. 4 10 To begin, Rys is unable to demonstrate personal involvement by either 11 Defendant because they were not responsible for making such assignments. The 12 record reflects that Defendant Davis assigned training partners and Defendant 13 Johnson assigned office partners. However, field partners – the type of partner 14 Rys alleges she was never assigned – were not allocated through any formal 15 process. Rather, these pairings were wholly voluntary. 5 Defendants-Appellees 16 did not discriminate against Rys on account of her race simply because non-party 17 POs chose not to partner with Rys in the field. In any case, Rys concedes that she

4 On appeal, Rys also argues that she was never assigned an office partner. We decline to consider this argument because Rys did not raise it before the district court. United States v. Gomez, 877 F.3d 76, 94–95 (2d Cir. 2017) (“It is well settled that arguments not presented to the district court are considered waived [or forfeited] and generally will not be considered for the first time on appeal.” (internal quotation marks omitted)). Rys’s Complaint and her testimony only discussed Defendants’ failure to assign her a field partner. See Joint App’x at 25, 205, 214, 219-22, 24.

5 Rys herself testified that she was unaware if field partners were assigned or voluntary. Joint App’x at 221

(Pl’s Dep. Tr. at 158:9-14) (“Q: Did S.P.O. Johnson assign these partners or were the bureau parole officers just talking to each other and obtaining their own partners when they went out? A: I don’t know how they did it, but I know there was no partner for me.”). We therefore agree with the district court that, “Plaintiff’s denial and her briefing indicate, at best, a misunderstanding or, at worst, a willful misrepresentation of how partnering worked in the Brooklyn Office.” Special App’x at 4-5.

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1 did not complain to Johnson or Davis about perceived racial animus towards her 2 by other POs. Because Rys is unable to show that her supervisors “personally 3 violated [her] constitutional rights,” we reject this argument as meritless. Raspardo 4 v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (emphasis omitted). 5 B. Assignment of Precincts and Cases 6 We also reject Rys’s argument that she was subjected to disparate treatment 7 by being given more onerous assignments than her minority peers. Defendant- 8 Appellee Davis assigned POs in the Brooklyn office to cases and precincts based 9 on geographical need. But even accepting Rys’s assertion that she was assigned 10 to three precincts while her African-American colleagues were assigned to one or 11 two, Rys marshaled no evidence to show how busy each precinct was or to 12 demonstrate that she was assigned to more cases in comparison to her minority 13 peers. As such, her disparate treatment claim fails. 14 C. Parolee Reassignment Request 15 Finally, we reject Rys’s argument that Defendants-Appellees’ handling of 16 her threat complaint and the investigative process that followed reflected 17 discriminatory animus. The record shows Defendants-Appellees took swift action 18 to ensure Rys’s safety after she was subjected to threats by her assigned parolee. 19 See Joint App’x at 351, 523-27, 564, 627-28. 6 Even if Defendants-Appellees were 20 found to have deviated from DOCCS’s procedure in handling such incidents, Rys 21 presents no “circumstantial or other basis for inferring” that these actions were

6Defendant-Appellee Davis was the bureau chief of the Brooklyn office of DOCCS until July 14, 2021, five days before Rys’s parolee absconded and a few weeks before Rys was reassigned. Defendant-Appellee Johnson was a senior parole officer in the Brooklyn office throughout Rys’s employment at DOCCS.

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1 racially motivated. Tassy, 51 F.4th at 533; cf. Stern v. Trs. of Columbia Univ. in the 2 City of N.Y., 131 F.3d 305, 312–13 (2d Cir. 1997) (explaining that circumstantial 3 evidence of a defendant’s “atypical,” “unprecedented,” and “unusual” behavior 4 could demonstrate discriminatory animus (internal quotation marks omitted)). 5 Absent evidence that her supervisors acted with discriminatory intent as to 6 any of her hostile work environment claims, we find that the district court 7 properly granted summary judgment for Defendants-Appellees. 8 III. Constructive Discharge 9 Because Rys’s hostile work environment claim fails, her related constructive 10 discharge claim also fails. See Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 11 712, 725 (2d Cir. 2010) (stating that the standard for constructive discharge is 12 higher than the standard for establishing a hostile work environment). The district 13 court did not err in granting summary judgment for Defendants-Appellees. 14 * * * 15 We have considered Rys’s remaining arguments and find them without 16 merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

17 FOR THE COURT: 18 CATHERINE O’HAGAN WOLFE, Clerk of Court