17‐0807‐cv Mindy MacCluskey v. Univ. of Connecticut Health Ctr.

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 19th day of December, two thousand seventeen.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

MINDY MACCLUSKEY, Plaintiff‐Appellee,

v. 17‐0807‐cv

UNIVERSITY OF CONNECTICUT HEALTH CENTER, Defendant‐Appellant.

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FOR PLAINTIFF‐APPELLEE: TANI E. SAPIRSTEIN, Sapirstein & Sapirstein, Springfield, Massachusetts.

FOR DEFENDANT‐APPELLANT: COLLEEN B. VALENTINE, Assistant Attorney General, Ann E. Lynch, Assistant Attorney General, for George Jepsen, Attorney General of the State of Connecticut, Hartford, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Shea, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the amended judgment of the district court is

AFFIRMED.

In this sexual harassment case, brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., a jury awarded plaintiff‐appellee Mindy

MacCluskey damages of $200,000 against her employer, defendant‐appellant University

of Connecticut Health Center (ʺUCHCʺ). The court granted a motion for remittitur and

reduced the damages to $125,000, and entered an amended judgment on March 30,

2017. UCHC timely appealed. We assume the partiesʹ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

It is undisputed at this juncture that MacCluskey was subjected to

actionable sexual harassment by a co‐worker, Dr. Michael Young, who was not her

supervisor. The principal question on appeal is whether a sufficient basis existed for

imputing the offending conduct to UCHC as the employer, a question that turns on

2

whether UCHC knew, or in the exercise of reasonable care should have known, about

the harassment but failed to take appropriate action. Duch v. Jakubek,

(2d Cir. 2009).

In 2000, Young was disciplined for sexually inappropriate behavior

towards a different dental assistant. In response to the complaint and subsequent

investigation, Young was given a ʺlast chanceʺ agreement which included the following

terms: a ten‐day suspension; a requirement that he see a psychiatrist; and termination

upon ʺany future instances of unsolicited flirtatious letters or comments to any

employee, or any behavior similar to this.ʺ App. 253. Nothing in the record suggests

that the ʺlast chanceʺ agreement was ever terminated or revoked.

In 2008, MacCluskey began working for UCHC as a dental assistant. She

worked two days a week with Young in a dental clinic at a juvenile correctional facility.

Approximately six months after working together, Young began to make comments

regarding MacCluskeyʹs appearance, inquired about her personal life, and invaded her

personal space. At some time between 2009 and 2010, MacCluskey complained of

Youngʹs behavior to two co‐workers. MacCluskey and Youngʹs supervisor, Dr. Alexis

Gendell, received information about an unspecified potential problem in the dental

clinic concerning MacCluskey. Gendell asked MacCluskey about this ʺsituationʺ once

3 in a hallway. App. 837. MacCluskey told Gendell that ʺthere is a situation and Iʹm all

set. It is under control.ʺ

. Gendell took no further action. Gendell had never

been made aware of Youngʹs prior sexual harassment or the last chance agreement.

In 2010, MacCluskey asked to be transferred to a different dental clinic.

Although the transfer would require her to work with Young an additional day a week,

she needed the hours to earn additional income to support her family. Hence, in her

request to be transferred, she stated that she and Young ʺwork extremely well together.ʺ

App. 300. At the new clinic, however, Youngʹs harassment of MacCluskey escalated

with persistent inappropriate emails and touching. On one occasion, Young blocked

the doorway, grabbed MacCluskeyʹs waist, pulled her close, and put his hand up her

shirt.

After this incident, MacCluskey reported the sexual harassment to her

supervisor, Rikel Lightner, and filed an incident report on February 24, 2011. UCHC

placed Young on administrative leave the next day and the Office of Diversity and

Equity (ʺODEʺ) conducted an investigation. The ODE investigation concluded on

March 10, 2011 and revealed that Young had given ʺshoulder rubsʺ to two other dental

assistants and had violated UCHCʹs policy prohibiting sexual harassment, and that

4 MacCluskeyʹs complaint was credible. App. 319. Young chose to resign rather than be

fired.

On September 25, 2013, MacCluskey commenced this action against

UCHC for Youngʹs sexual harassment alleging gender discrimination and a hostile

work environment in violation of Title VII. Prior to and during trial, UCHC filed a

number of motions for summary judgment, reconsideration of the denial of the motion

for summary judgment, and judgment as a matter of law pursuant to Rule 50(a), all of

which were denied with the exception that the district court granted partial summary

judgment, holding, as a matter of law, that Young was not MacCluskeyʹs supervisor.

On September 1, 2016, following the juryʹs verdict, the district court entered judgment

in favor of MacCluskey and awarded her $200,000 in damages. UCHCʹs post‐trial

motions were denied, except with respect to remittitur.

UCHC raises several arguments on appeal. First, it argues that the district

court erred in denying its motions for summary judgment, reconsideration, and

judgment as a matter of law because there is no legal basis to impute liability to UCHC.

UCHC contends that it had no knowledge, actual or constructive, of Youngʹs

harassment of MacCluskey prior to her 2011 complaint, upon which it took immediate

action. Second, UCHC argues that the district court erred by denying its motion for

5 new trial because the jury instructions did not properly inform the jury of the applicable

law on ʺnoticeʺ or ʺreasonable care.ʺ See Def. Br. at 51‐60.

I. UCHCʹs Liability

To prevail on a hostile work environment claim, a plaintiff must prove

that (1) the ʺworkplace was permeated with discriminatory intimidation that was

sufficiently severe or pervasive to alter the conditions of her work environment,ʺ and

(2) ʺa specific basis exists for imputing the conduct that created the hostile environment

to the employer.ʺ Murray v. New York Univ. College of Dentistry,

(2d Cir.

1995) (citations omitted). This appeal concerns only the second element.

Where, as here, a hostile work environment claim involves conduct by a

co‐worker, rather than by a supervisor, the employer is only liable for its own failure to

exercise reasonable care to address the harassment. Duch,

. Accordingly,

the test is whether (1) the employer ʺfailed to provide a reasonable avenue for

complaintʺ or (2) ʺit knew, or in the exercise of reasonable care should have known,

about the harassment yet failed to take appropriate remedial action.ʺ

(quoting

Howley v. Town of Stratford,

(2d Cir. 2000)). It is undisputed that

UCHC provided a reasonable avenue for complaint and that MacCluskey did not report

Youngʹs conduct prior to 2011. The question is whether UCHC had constructive notice

6 of the harassment, that is, whether it should have known about the harassment in the

exercise of reasonable care.

At this stage in the litigation, after a jury trial and verdict, our review is

limited to determining whether a reasonable jury could have found that UCHC should

have known about Youngʹs sexual harassment in the exercise of reasonable care. See

Cross v. N.Y. City Transit Auth.,

(2d Cir. 2005). The largely undisputed

facts are construed ʺin the light most favorable toʺ MacCluskey, as the party who

prevailed at trial. Kosmynka v. Polaris Indus., Inc.,

(2d Cir. 2006).

We agree with the district court that there was sufficient evidence for a

reasonable jury to find that, in the exercise of reasonable care, UCHC should have

known about Youngʹs harassment. As outlined by the district court, a reasonable jury

could have found the following:

 After Young had sexually harassed another assistant in 2000, he was

disciplined and subjected to the last chance agreement.

 Youngʹs supervisors, including Gendell, should have been made aware of the

last chance agreement, but they were not.

 Youngʹs supervisors should have been monitoring him, especially given the

isolated and close working environment.

7  From 2009 through 2011, Young made inappropriate comments regarding

MacCluskeyʹs appearance, inquired about her personal life, and invaded her

personal space.

 At some time between 2009 and 2010, MacCluskey complained of Youngʹs

behavior to two co‐workers.

 Gendell was alerted to a possible issue involving MacCluskey in the dental

clinic, to the extent that she asked her about the ʺsituationʺ; she did so,

however, in a hallway, rather than a private setting, and did not ask follow‐

up questions or raise the issue again; indeed, she took no further action.

Collectively, these facts provided a sufficient basis for a reasonable jury to determine

that in the exercise of reasonable care, UCHC should have known about Youngʹs

harassment in 2009 or 2010. There was enough notice that Gendell was prompted to

inquire, and instead of asking an informal question in a hallway, she should have

conducted a deeper inquiry. Moreover, she should have known about Youngʹs earlier

conduct and the last chance agreement, and that knowledge surely would have

provided reason for a more probing inquiry when UCHC became aware there was a

ʺsituation.ʺ

8 UCHC argues that it had a sexual harassment policy and MacCluskey

knew about the policy but failed to make a complaint for two years. Hence, UCHC

contends, it is not liable for Youngʹs actions because of the affirmative defense

established in Faragher v. City of Boca Raton,

(1998), and Burlington Indus.,

Inc. v. Ellerth,

(1998). We disagree.

First, the Faragher/Ellerth affirmative defense applies to supervisor

harassment. The Supreme Court and this Circuit have made it clear that there are

different standards of liability for supervisor versus co‐worker harassment. Vance v.

Ball State Univ.,

(2013) (ʺIn cases in which the harasser is a

ʹsupervisor,ʹ however, different rules apply.ʺ); Petrosino v. Bell Atlantic,

(2d Cir. 2004) (explaining the Faragher/Ellerth affirmative defense for supervisor

harassment); Bartniak v. Cushman & Wakefield, Inc.,

(S.D.N.Y.

2002) (ʺFaragher/Ellerth does not apply to this case. When a hostile working

environment is created by a co‐worker, the employer is not subject to strict liability and

there is no need to consider an affirmative defense.ʺ).

Second, even if the affirmative defense did apply, the existence of an anti‐

harassment policy is not dispositive on the issue of whether the employer exercised

reasonable care to prevent and correct harassing behavior. See Ferraro v. Kellwood Co.,

9

(2d Cir. 2006). Even where an employer provides a reasonable avenue

for complaint, it may be liable if it knew or should have known about the harassment

and failed to take appropriate action. Duch,

. As discussed above, the

facts in the record provided a sufficient basis for a reasonable jury to find that UCHC

acted without reasonable care and was thus liable for Youngʹs conduct.

II. Jury Instructions

Preserved challenges to a district courtʹs jury instructions are reviewed de

novo. Chauca v. Abraham,

(2d Cir. 2016). ʺʹA jury instruction is erroneous

if it misleads the jury as to the correct legal standard or does not adequately inform the

jury on the law.ʹ An erroneous jury instruction requires a new trial, unless the error is

harmless.ʺ Velez v. City of New York,

(2d Cir. 2013) (quoting Gordon v.

New York City Bd. of Educ.,

(2d Cir. 2000)). A new trial is an

extraordinary remedy and ʺordinarily should not be granted unless the trial court is

convinced that the jury has reached a seriously erroneous result or that the verdict is a

miscarriage of justice.ʺ Kosmynka,

(citations omitted).

We find no error with the jury instruction in this case. The pertinent part

of the instructions stated:

If you find that the Plaintiff was sexually harassed by Dr. Young and the harassment created a hostile work environment, the Defendant is liable

10 if the Plaintiff demonstrates that the employer knew, or in the exercise of reasonable care should have known, about the harassment but failed to take appropriate remedial action. To determine whether the Plaintiffʹs response was reasonable, you must consider the totality of the circumstances.

App. 1224‐1225. This instruction properly states the law. We are not persuaded by

UCHCʹs argument that ʺ[t]he most critical legal standards in this case were not

explained.ʺ Def. Reply Br. at 23. First, the jury instructions sufficiently defined

ʺreasonablenessʺ by providing a non‐exhaustive list of factors to be considered in

determining whether UCHCʹs response was reasonable. Second, UCHCʹs proposed

instructions did not request or provide a definition of ʺnotice,ʺ ʺactual or constructive

notice,ʺ or ʺreasonable care.ʺ Third, UCHC argued that the district court should have

instructed the jury to consider specific factors, namely whether it had an anti‐

harassment policy, whether MacCluskey failed to take advantage of it, and whether

UCHC took reasonable action after she did complain. The district court was not

required to instruct the jury on these factors, which are essentially the Faragher/Ellerth

affirmative defense, because this is a co‐worker harassment case. Accordingly, we find

no error in the jury instructions or the denial of the motion for a new trial.

. . .

11 We have considered UCHCʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district courtʹs amended judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

12