23-7302 Cain v. McDonough

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 TO 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 twenty-four.

PRESENT: BETH ROBINSON, ALISON J. NATHAN, Circuit Judges, VINCENT L. BRICCETTI, * District Judge. _________________________________________

TRACY CAIN,

Plaintiff-Appellant,

v. No. 23-7302

DENIS RICHARD MCDONOUGH, Secretary of Veterans Affairs,

Defendant-Appellee,

*Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. DEPARTMENT OF VETERANS AFFAIRS,

Defendant.∗ _________________________________________

FOR APPELLANT: Matthew V. Simeone, Cheektowaga, NY.

FOR APPELLEE: Michael S. Cerrone, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the

Western District of New York (Crawford, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on August 9, 2023, is

AFFIRMED.

Plaintiff-Appellant Tracy Cain appeals from the grant of summary

judgment for Defendant-Appellee Dennis Richard McDonough, Secretary of

Veterans Affairs (“Secretary”), and Defendant Department of Veterans Affairs

(“VA”). We assume the parties’ familiarity with the underlying facts, procedural

history, and arguments on appeal, to which we refer only as necessary to explain

our decision to affirm.

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 In September 2017, the VA hired Cain as a VA police officer in the

Syracuse VA Medical Center. In May 2019, Cain reported to her supervisor that

Paul White, another VA officer, had been sexually harassing her. Cain filed a

single-count complaint against the VA and the Secretary alleging that they failed

to adequately respond to her complaint of sexual harassment in violation of Title

VII of the Civil Rights Act of 1964,

, et seq. The defendants moved

for summary judgment, which the district court granted. Cain v. McDonough, No.

1:21-cv-634,

, at *1 (W.D.N.Y. Aug. 9, 2023).

We review the district court’s grant of summary judgment without

deference. Byrne v. Rutledge,

(2d Cir. 2010). If, construing the

evidence in the light most favorable to the nonmoving party, there is no genuine

dispute as to any material fact then the movant is entitled to judgment as a

matter of law.

Defendants here do not dispute that White’s conduct was sufficiently

severe and pervasive to qualify as sexual harassment. At issue is whether

Defendants can be held liable.

When an individual sues their employer under Title VII, the plaintiff must

show “a specific basis . . . for imputing the objectionable conduct to the

3 employer.” Tolbert v. Smith,

(2d Cir. 2015). 1 “An employer’s

liability for hostile work environment claims depends on whether the underlying

harassment is perpetrated by the plaintiff’s supervisor or [the plaintiff’s] non-

supervisory co-workers.” Wiercinski v. Mangia 57, Inc.,

(2d Cir.

2015). “[W]hen the harassment is attributable to a co-worker . . . the employer

will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp.,

(2d Cir. 1998).

The district court determined that White was Cain’s co-worker. Cain,

, at *8. Because Cain does not challenge that conclusion on appeal,

we assume without deciding that White is Cain’s co-worker. Therefore, Cain

“must demonstrate that her employer failed to provide a reasonable avenue for

complaint or that it knew, or in the exercise of reasonable care should have

known, about the harassment yet failed to take appropriate remedial action.”

Duch v. Jakubek,

(2d Cir. 2009).

The following facts are undisputed for purposes of defendants’ summary

judgment motion. After Cain told White that she was not interested in a sexual

1 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.

4 relationship with him, he served as her first-line supervisor for one day. At the

end of their shift, White sent an email to the VA’s police chief complaining of

Cain’s alleged poor performance. The next day, May 3, 2019, Cain’s first-line

supervisor, Lieutenant Robin Lawrence, investigated White’s allegations and

concluded that they were not true. When Lawrence first reached out to Cain

about White’s email, Cain did not tell Lawrence about White’s sexual overtures.

On Sunday, May 5, 2019, Cain reported White’s conduct to Lawrence, who

immediately informed the VA’s police chief. The next day, May 6, 2019, Cain

gave a statement to the criminal investigator and deputy chief, which Cain

signed on May 7, 2019. Also on May 6, the VA began an investigation, and then

took the following actions: changed Cain’s shift so that she was not working the

same shift as White, took away White’s service weapon and removed his access

to the weapon locker, relocated White to an office in another wing of the

building, and instructed White to stay in that wing and not to come into Cain’s

office area.

Cain’s argument focuses on what happened next. Three times, White

came into the office area near Cain’s desk after the stay-away order. In the first

two instances, White came to the administrative area near Cain’s cubicle, and

5 either shuffled papers or lingered near her. He did not speak to, touch, or

attempt to touch Cain. Cain did not report his conduct. On the third occasion,

White came to the same area, shuffled papers, and remained for a shorter period

of time. Cain reported these incidents to the police chief. In response, the chief

had another conversation with White and told him that he could not spend time

in the area near Cain’s desk. If he had something to drop off in the

administrative office, he should “drop it off and go.” App’x at 127. The chief

told Cain that on occasion White may have to come to the administrative office

near Cain’s work area, but he would not need to stay near Cain’s desk for any

length of time. After that, Cain had no further problems; White only came to her

office area a few times, and each visit was very brief.

Cain argues that the VA is liable because its response to her complaint of

sexual harassment by White was inadequate. On these facts, we disagree. The

VA instituted a formal investigation within one business day after Cain reported

the harassment. The VA took the allegations seriously. And the VA’s response

was multifaceted and included steps to prevent Cain and White from working

6 overlapping shifts, 2 relocating White to a different wing of the building, taking

away White’s service weapon, and requiring White to stay away from Cain’s

work area. As soon as Cain notified her supervisors that White had stood near

her desk following the stay-away order, they took effective action to ensure that

it didn’t happen again. Moreover, at the conclusion of its investigation the VA

placed White on a last chance agreement, which included a demotion from

lieutenant to line officer.

The VA’s response here stands in contrast to cases where we have

concluded that a reasonable juror could find that an employer failed to take

appropriate remedial action. See, e.g., Duch, 588 F.3d at 760–61, 766-67

(supervisor responded to initial report of harassment by suggesting he did not

want to hear about it, and employer did not open an investigation for three

months, during which time the harassment escalated).

Citing Whidbee v. Garzarelli Food Specialties, Inc.,

(2d Cir. 2000),

Cain counters that White’s violation of the stay-away order creates a dispute of

fact as to whether the VA’s response was adequate.

2 Cain does not challenge this remedy or contend that she was moved to a less advantageous shift.

7 But “an employer need not prove success in preventing harassing behavior

in order to demonstrate that it exercised reasonable care in . . . correcting sexually

harassing conduct.” Whidbee,

. True, we have recognized that

where harassment continues after an employer receives complaints, that may

create an issue for the jury as to whether the employer’s response was adequate.

But we do not read those cases as holding as a matter of law that any time a

harassing co-worker violates an order to stay away from the complainant a jury

could conclude that the employer’s response was inadequate.

In Whidbee, the plaintiffs reported several incidents of racially harassing

comments by a co-worker.

at 66–68. Their manager did not speak to the

offending co-worker for several days, during which time the racially harassing

comments continued.

. Then, after the manager gave the harassing

co-worker a verbal warning, the co-worker made further racially harassing

statements.

. In response to the plaintiffs’ complaints, the manager

suggested that he could not “control [the co-worker’s] mouth,” and said he did

not know how to deal with the problem.

The manager then gave the co-

worker a written warning, but the harassment continued unabated.

. In

the end, on the same day the manager issued a third warning, the plaintiffs

8 resigned.

In that context, we recognized that the continued harassment after

the plaintiffs’ reports was a factor suggesting that the employer’s response was

inadequate.

at 72–73.

That’s a far cry from the facts here. It is undisputed that White did not

speak to or contact Cain after her initial complaint, that Cain did not report

White’s coming near her desk the first two times he came to the administrative

office area, and that once she reported these incidents, the police chief effectively

ensured that White stayed away from Cain. Based on these facts, we conclude

that no reasonable juror could find that the VA failed to take appropriate

remedial action.

* * *

We have considered Cain’s remaining arguments and conclude that they

are without merit. Accordingly, the District Court’s judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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