19‐661‐cv Dedjoe v. Esper

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 20th day of February, two thousand twenty.

PRESENT: DENNIS JACOBS, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

BENJAMIN A. DEDJOE, Plaintiff‐Appellant,

‐v‐ 19‐661‐cv

DR. MARK T. ESPER, in his official capacity as the Secretary of the Army, Defendant-Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, New Paltz, New York. FOR DEFENDANT‐APPELLEE: KAREN FOLSTER LESPERANCE, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York.

Appeal from the United States District Court for the Northern District of

New York (McAvoy, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment and order of the district court are

AFFIRMED.

Plaintiff‐appellant Benjamin A. Dedjoe appeals a May 14, 2018 judgment

of the district court, entered following a jury verdict, dismissing his claims against

defendant‐appellee the Secretary of the Army (the ʺArmyʺ).1 Dedjoe also appeals the

district courtʹs order entered February 19, 2019 denying his motion for judgment as a

matter of law or, in the alternative, for a new trial pursuant to Federal Rules of Civil

Procedure 50(b) and 59. The sole claim at trial was whether the Army retaliated against

Dedjoe for filing informal complaints of race‐based discrimination, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (ʺTitle VIIʺ). On appeal,

Dedjoe contends that his post‐trial motions should have been granted because, in his

1 The lawsuit was originally filed against John M. McHugh in his official capacity as Secretary of the Army. McHugh was succeeded by Mark T. Esper while the case was pending below. 2 view, the evidence overwhelmingly demonstrated retaliation.2 We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

DISCUSSION

ʺA district court may set aside a juryʹs verdict pursuant to [Federal Rule of

Civil Procedure] 50 only where there is such a complete absence of evidence supporting

the verdict that the juryʹs findings could only have been the result of sheer surmise and

conjecture, or there is such an overwhelming amount of evidence in favor of the movant

that reasonable and fair minded men could not arrive at a verdict against him.ʺ Bucalo

v. Shelter Island Union Free Sch. Dist.,

, 127‐28 (2d Cir. 2012) (internal

quotation marks omitted). We review de novo the denial of a Rule 50 motion, but ʺwe

are bound by the same stern standardsʺ as the district court.

at 128 (quoting Cross v.

N.Y.C. Transit Auth.,

(2d Cir. 2005)).

The district court did not err in denying Dedjoeʹs Rule 50 motion because

a reasonable juror could have found that Dedjoe failed to prove an adverse employment

action. Title VII retaliation claims are evaluated under the three‐step burden shifting

2 Dedjoeʹs Notice of Appeal also references the district courtʹs earlier decision and order granting partial summary judgment in favor of the Army as to Dedjoeʹs discrimination and hostile work environment claims, but he makes no mention of that earlier order in his briefs. We accordingly limit our review to the dismissal of the retaliation claim and the denial of Dedjoeʹs post‐trial motions. Montauk Oil Transp. Corp. v. Tug El Zorro Grande,

, 114 (2d Cir. 1995) (ʺAs a general rule, a Court of Appeals will not pass upon issues that were not presented in the appellantsʹ briefs.ʺ). 3 analysis established in McDonnell Douglas Corp. v. Green,

, 802–05 (1973). See

Vega v. Hempstead Union Free Sch. Dist.,

, 82‐83 (2d Cir. 2015). Under the first

step, a plaintiff must establish a prima facie case of retaliation by showing: ʺ(1)

participation in a protected activity; (2) that the defendant knew of the protected

activity; (3) an adverse employment action; and (4) a causal connection between the

protected activity and the adverse employment action.ʺ Hicks v. Baines,

(2d Cir. 2010). To satisfy the prima facie caseʹs third element, a plaintiff must show

that ʺthe challenged action [was] materially adverse, which . . . means it well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.ʺ Burlington N. & Santa Fe Ry. Co. v. White,

(2006) (internal

quotation marks omitted).

The evidence at trial established that Dedjoe complained of race

discrimination by security personnel at least three times while working as an electrical

engineer for the Army at the Watervliet Arsenal (the ʺArsenalʺ) in upstate New York.

The alleged retaliatory act that followed these complaints occurred on November 7,

2012 when Dedjoe got into a disagreement with a security officer at the Arsenalʹs Visitor

Center and was escorted out of the building with instructions not to return for the day.

Dedjoe, however, received full pay for the day with no deduction to his accrued leave

time. Dedjoe returned to work the following day without incident.

4 A reasonable juror could have concluded that being told to cool off for

half a day without any deduction in pay was not an adverse employment action.

ʺExamples of materially adverse changes include termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities, or other

indices unique to a particular situation.ʺ Vega,

(quoting Terry v. Ashcroft,

(2d Cir. 2003) (alterations and internal quotation marks omitted)).

Importantly, however, ʺ[a]n adverse employment action is . . . more disruptive than a

mere inconvenience or an alteration of job responsibilities.ʺ Vega,

.

Dedjoe argues principally that his suspension constitutes an adverse

employment act as a matter of law because the jurors heard evidence that his treatment

on November 7, 2012 was exceptional. See Joseph v. Leavitt,

, 92 n.1 (2d Cir.

2006) (noting that an employment action can be adverse where the employerʹs conduct

exceeds standard disciplinary procedures). Indeed, one officer testified that in his

seventeen years of employment at the Arsenal, he knew of no other instance where a

civilian employee was removed as a disciplinary measure.

There was also, however, evidence presented at trial indicating that being

told to leave after lunch on November 7, 2012 was a reasonable response to Dedjoeʹs

workplace conduct. The officer who escorted Dedjoe out of the Arsenal testified that

when he arrived at the Visitor Center, he observed Dedjoe yelling and pounding his fist

5 on the counter, ʺacting very disruptively, very aggressively, . . . [and] making the other

visitors . . . uncomfortable,ʺ J. Appʹx at 590, an account that was corroborated by a

third‐party observer. J. Appʹx at 615. The officer went on to explain that in his view,

ordering Dedjoe to leave was in line with his job function of ʺprotect[ing] property,

personnel and maintain[ing] order.ʺ J. Appʹx at 590. Such evidence supports a jury

finding that the employment action was not adverse. See Brown v. City of Syracuse,

, 150‐51 (2d Cir. 2012) (holding that plaintiff failed to establish an adverse

employment action because employerʹs conduct was reasonable).

In light of this evidence, a reasonable juror could have concluded that

Dedjoeʹs removal for half a day with pay was not an adverse employment action, and

thus that Dedjoe failed to prove the third element of a prima facie retaliation claim. As a

ʺlegally sufficient evidentiary basisʺ existed to support the juryʹs verdict, Harris v.

OʹHare,

(2d Cir. 2014), as amended (Nov. 24, 2014), we affirm the denial

of Dedjoeʹs Rule 50 motion.

The district court also did not abuse its discretion in denying Dedjoeʹs

motion for a new trial for the same reasons it did not err in denying Dedjoeʹs Rule 50

motion. ʺA trial court should not grant a motion for a new trial [pursuant to Federal

Rule of Civil Procedure 59] unless it is ʹconvinced that the jury . . . reached a seriously

erroneous result or that the verdict is a miscarriage of justice.ʹʺ Ali v. Kipp,

(2d Cir. 2018) (quoting Amato v. City of Saratoga Springs, N.Y.,

(2d

6 Cir. 1999)). In considering a Rule 59 motion, a ʺhigh degree of deference [should be]

accorded to the juryʹs evaluation of witness credibility, and . . . jury verdicts should be

disturbed with great infrequency.ʺ Raedle v. Credit Agricole Indosuez,

(2d Cir. 2012).

Dedjoe argues that the evidence supporting his retaliation claim was so

overwhelming that any verdict against him constitutes a miscarriage of justice that

demands a new trial. As already noted, however, a reasonable juror could have

concluded that Dedjoe being instructed to leave work for half a day with pay was not

an adverse employment action. The district courtʹs decision not to overturn the juryʹs

decision, therefore, was neither a miscarriage of justice nor seriously erroneous.3

* * *

3 Dedjoe also argues that a new trial should have been granted because the district courtʹs jury instructions included an instruction on the essential elements that a plaintiff must prove to establish a prima facie case. Dedjoeʹs own proposed jury instructions, however, included an instruction on the elements of a prima facie Title VII retaliation claim. The instruction ultimately issued by the district court was substantially similar to Dedjoeʹs proposed instruction, and Dedjoe failed to object to it. Accordingly, this argument is waived. See Lavoie v. Pac. Press & Shear Co., a Div. of Canron Corp.,

, 54‐55 (2d Cir. 1992). 7 We have considered Dedjoeʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

8