Rys v. Davis

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

Appeal from a judgment of the United States District Court for the Southern 5 District of New York (Karas, J.). 6

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 7

AND DECREED that the judgment of the district court is AFFIRMED. 8 For three months until her resignation in August 2021, Plaintiff-Appellant 9 Samantha Rys worked as a parole officer ("PO") for the Brooklyn bureau of New 10 York's Department of Corrections and Community Supervision ("DOCCS"). As a 11 PO at DOCCS, Rys was supervised by a senior parole officer, Tanya Johnson, who 12 in turn reported to the Brooklyn bureau chief, Sabrina Davis (together, 13

"Defendants-Appellees"). Johnson and Davis are Black women, while Rys is a 14 Caucasian woman. 15

In December 2022, Rys sued her supervisors under 42 U.S.C. § 1983, alleging 16 that Davis and Johnson created a hostile work environment and constructively 17 discharged Rys because of her race, in violation of the Equal Protection Clause of 18 the Fourteenth Amendment. 19

The district court granted summary judgment for Defendants-Appellees 20 after determining that Rys failed to meet the evidentiary burden on her hostile 21 work environment and constructive discharge claims. Rys appeals from the 22 district court's grant of summary judgment. In this appeal, we consider whether 23 the district court erred in discrediting Rys's declaration as a "sham affidavit" and 24 in granting summary judgment for Defendants-Appellees. We assume the parties' 25

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familiarity with the underlying facts, procedural history, and arguments on 1 appeal, to which we refer only as necessary to explain our decision. 2 We review a district court's grant of summary judgment de novo. Back v. 3 Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Summary 4 judgment is appropriate when, viewing the evidence in the light most favorable to 5 the non-moving party, "there is no genuine issue as to any material fact" that could 6 lead to a judgment in the non-movant's favor. Nabisco, Inc. v. Warner-Lambert Co., 7

220 F.3d 43, 45 (2d Cir. 2000); Fed. R. Civ. P. 56(a). 8 We find that Rys failed to produce evidence that would create a genuine 9 dispute of material fact precluding summary judgment against her. In coming to 10 this conclusion, we note certain "unequivocal[,] inescapable, [and] unexplained" 11 contradictions between Rys's deposition testimony and the declaration she 12 submitted after Defendants moved for summary judgment. In re Fosamax Prods. 13 Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013) (per curiam). We agree with the district 14 court's observation that these contradictions resulted from Rys's declaration being 15 a sham affidavit and thus we disregard them. 16

I. "Sham Affidavit" 17 Per the sham affidavit or "sham issue[] of fact" doctrine, "a party may not 18 create an issue of fact by submitting an affidavit in opposition to a summary 19 judgment motion that, by omission or addition, contradicts the affiant's previous 20 deposition testimony." Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 21 1996). A sham issue of fact exists when the contradictions in a party's affidavit, 22 compared to the party's prior testimony, are "inescapable and unequivocal in 23 nature." In re Fosamax Prods. Liab. Litig., 707 F.3d at 194. "[I]f there is a plausible 24

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explanation for discrepancies in a party's testimony," however, "the court 1 considering a summary judgment motion should not disregard the later testimony 2 because an earlier account was ambiguous, confusing, or simply incomplete." 3 Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (per curiam) 4 (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)). We find 5 three contradictions between Rys's prior testimony and her later declaration that 6 indicate that the later declaration is a "sham affidavit." 7

First, Rys testified that while she did not know what other POs' caseloads 8 looked like, Rys was assigned to "two precincts," and this was somehow 9

"different" from others' assignments. See Joint App'x at 147-48.¹Her declaration 10 stated, in contrast, that she "was assigned to three police precincts" while "African 11 American parole officers were assigned one or two, most usually two." Joint App'x 12 at 604 (Pl's Decl. ¶ 7) (emphases added). To explain this contradiction, Rys refers 13 to general "remarks" made by her coworkers and a comment written by another 14 coworker on her farewell card stating, "I have nightmares about the 76, 78, and 15 84." Joint App'x at 229, 605, 610-11. Rys alleges that this comment "refreshed [her] 16 recollection" that she was assigned to three, rather than two, precincts. Appellant 17 Brief at 30. Rys offers no evidence, however, to support her claim that her minority 18

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peers were assigned to fewer than three precincts, or that her caseload was more 1 onerous than theirs. 2

Rys's explanation cannot cure the contradictory statements made in her 3 declaration. Like the district court, we find it "difficult to credit Plaintiff's 4 conclusory assertion that the comment [in her farewell card] references [her] 5 assigned precincts when she testified that she did not recall her assigned precincts' 6 numbers." Special App'x at 22. In any case, even assuming that Rys was assigned 7 more precincts than her minority peers, this does not necessarily mean that Rys's 8 caseload was more onerous than theirs. Because Rys offers no admissible evidence 9 to support the statements in her declaration, the district court properly 10 disregarded these contradictory facts as "sham." See Mack v. United States, 814 F.2d 11 120, 124 (2d Cir. 1987) ("It is well settled in this [C]ircuit that a party's affidavit 12 which contradicts h[er] own prior deposition testimony should be disregarded on 13 a motion for summary judgment."). 14

Second, Rys testified about one instance in which, during her search for a 15

"field partner," a racial comment was directed at her from another PO.²Special 16 App'x at 14-15 (citing Pl's Dep. Tr. at 157:12-158:8, 159:16-21, 160:4-11) (describing 17 an incident where a non-party PO said that she would not accompany Rys unless 18

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she got a "spray tan"). In her declaration, however, Rys recounted "two occasions" 1 when "African American POs declined to partner" with her, including one 2 instance in which another PO allegedly called Rys a "snow cone." Joint App'x at 3 604 (Pl's Decl. ¶ 6) (emphasis added). To explain this second discrepancy, Rys 4 essentially argues that her "later sworn assertion addresse[d] an issue that was not 5 thoroughly or clearly explored" in her deposition and that, in any event, Rys had 6 raised the "snow cone" incident in her Complaint. In re World Trade Ctr. Lower 7 Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2d Cir. 2014) (alterations adopted 8 and internal quotation marks omitted) (citing Corio, 232 F.3d at 43); Appellant Brief 9 at 30-31. 10

Even if Rys was not specifically questioned about the "snow cone" incident, 11 she was generally asked about instances of perceived racism when seeking out 12 partnership pairings and failed to mention the "snow cone" incident at any point. 13 See generally Joint App'x at 218-25. Further, Rys's Complaint did not describe the 14

"snow cone" incident as one made in the context of seeking a partner. See id. at 25 15 ¶ 18 ("Another co-worker told plaintiff she was the snow cone in the building and 16 made clear that she did not fit in and could not safely do her job on account of her 17 race"). But "factual issues created solely by an affidavit crafted to oppose a 18 summary judgment motion are not 'genuine' issues for trial," Hayes, 84 F.3d at 19, 19 and we refuse to credit Rys's affidavit testimony when her prior deposition 20 testimony offered no such allegation despite the opportunity to do so. 21 Defendants-Appellees offer an additional inconsistency that the district 22 court failed to note. They observe that Rys testified that one of her assigned 23 parolees was arrested for an incident that occurred after Rys was assigned to the 24

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parolee, see generally Joint App'x at 168-71, 198 ("I was assigned to him shortly 1 before that incident"), but in her declaration Rys states that her parolee's parole 2 revocation hearing "concerned a matter which preceded [her] time as his assigned 3 parole officer and could have been handled by anyone." Joint App'x at 607 ¶ 20 4 (emphasis added); see also Appellant Brief at 19. Rys offers no explanation for this 5 contradiction. As such, we discredit it. 6

Nonetheless, we disagree with one of the district court's "sham" findings. 7 In particular, Rys testified that she "did not" report any instances of negative 8

"treatment" she received from other POs to her supervisors, Joint App'x at 222-23 9 (Pl's Dep. Tr. 159:16-160:18), while her declaration states that she "repeatedly 10 raised [the] issue with Johnson about having to go out alone, without a partner, 11 and asked for her assistance in that regard," Special App'x at 15; Joint App'x at 12 605 (¶ 10). Because our task is to "[c]onstrue the record evidence in the light most 13 favorable" to Rys and "draw all reasonable inferences in [her] favor," we find no 14 inconsistency between these two statements. Torcivia v. Suffolk Cnty., 17 F.4th 342, 15 354 (2d Cir. 2021). We read Rys's declaration to say that she repeatedly told 16 Johnson about her general desire to be partnered with another PO. But this does 17 not necessarily mean that Rys imparted to Johnson any negative treatment she 18 experienced in her search for such a partner. Ultimately, even if the district court 19 misinterpreted Rys's declaration by finding a "sham" in this instance, the other 20 contradictions in Rys's declaration were "unequivocal and inescapable," and merit 21 our treatment of Rys's entire declaration as a sham affidavit. In re Fosamax Prods. 22 Liab. Litig., 707 F.3d at 194. 23

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Together, the factual contradictions in Rys's declaration cannot be said to 1 contain evidence "newly discovered." Perma Rsch. & Dev. Co. v. Singer Co., 410 2 F.2d 572, 578 (2d Cir. 1969). Instead, Rys's declaration "merely contradict[s][] h[er] 3 prior testimony" and is "largely unsubstantiated by any other direct evidence." 4 Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (quoting Rule v. Brine, 5 Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)); Jeffreys, 426 F.3d at 551. Because the "[t]he 6 timing of the testimony recanting the prior sworn testimony clearly increase[s] the 7 likelihood that it was intended solely to defeat the motion for summary 8 judgment," we conclude that Rys's declaration was a sham affidavit. In re Fosamax 9 Prods. Liab. Litig., 707 F.3d at 195. 10

II. Hostile Work Environment 11 We now consider the merits of Rys's claims. To bring a hostile work 12 environment claim under 42 U.S.C. § 1983, a plaintiff must "prove conduct (1) that 13 is objectively severe or pervasive[,] that is, conduct that creates an environment 14 that a reasonable person would find hostile or abusive . . . , (2) that the plaintiff 15 subjectively perceives as hostile or abusive . . . , and (3) that creates such an 16 environment because of plaintiff's [membership in a protected class]." Tassy v. 17 Buttigieg, 51 F.4th 531, 533 (2d Cir. 2022) (quoting Brown v. Henderson, 257 F.3d 246, 18 252 (2d Cir. 2001)). The third element "may be proven by evidence of harassment 19 in such race-specific and derogatory terms as to make it clear that the harasser is 20 motivated by general hostility to the presence of individuals of a particular race in 21 the workplace, or by offering some circumstantial or other basis for inferring that 22 incidents race-neutral on their face were in fact discriminatory." Tassy, 51 F.4th at 23 533 (alterations adopted) (quoting Pucino v. Verizon Commc'ns, Inc., 618 F.3d 112, 24

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117-18 (2d Cir. 2010)). Additionally, supervisors may be liable under Section 1983 1 if (1) they were personally involved and (2) acted with discriminatory intent that 2 was the "but-for" cause of the hostile work environment. See Grullon v. City of New 3 Haven, 720 F.3d 133, 137-38 (2d Cir. 2013) (personal involvement); Naumovski v. 4 Norris, 934 F.3d 200, 214 (2d Cir. 2019) ("but-for").³5

Rys alleges that Davis and Johnson subjected her to a hostile work 6 environment because they (1) did not assign Rys a field partner; (2) gave her a 7 more onerous work assignment than her minority peers; and (3) deviated from 8 standard practice and did not develop a plan of action after a parolee threatened 9 her. Rys's first two examples are ones of alleged disparate treatment, while the 10 third is facially neutral. In all instances, Rys generally contends that Defendants-11 Appellees' "actions" made her feel "disposable" and that she perceived that this 12 behavior was racially motivated. Joint App'x at 223. Rys essentially concedes that 13 none of these actions were overtly racist, and the record contains no evidence that 14 Defendants-Appellees ever made racial remarks toward Rys. Instead, Rys spins 15 another web of circumstantial evidence to argue that Defendants-Appellees' 16 actions were motivated by racial animus. 17

In general, "rel[iance] on conclusory allegations [and] unsubstantiated 18 speculation" are insufficient to make out a hostile work environment claim. 19 Jeffreys, 426 F.3d at 554 (internal quotation marks omitted). To the extent 20

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Defendants-Appellees were personally involved in any of the events above, we 1 agree with the district court that "Plaintiff failed to carry her burden . . . [and] 2 show[] that the alleged conduct occurred because she is Caucasian." Special App'x 3 at 20. For these reasons, Rys failed to show that she was discriminated against on 4 the basis of her race, making summary judgment for Defendants-Appellees 5 proper. 6

A. Assignment of Partners 7 We reject Rys's argument that, unlike her minority peers, she was never 8 assigned a field partner.⁴9

To begin, Rys is unable to demonstrate personal involvement by either 10 Defendant because they were not responsible for making such assignments. The 11 record reflects that Defendant Davis assigned training partners and Defendant 12 Johnson assigned office partners. However, field partners - the type of partner 13 Rys alleges she was never assigned - were not allocated through any formal 14 process. Rather, these pairings were wholly voluntary.⁵Defendants-Appellees 15 did not discriminate against Rys on account of her race simply because non-party 16 POs chose not to partner with Rys in the field. In any case, Rys concedes that she 17

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did not complain to Johnson or Davis about perceived racial animus towards her 1 by other POs. Because Rys is unable to show that her supervisors "personally 2 violated [her] constitutional rights," we reject this argument as meritless. Raspardo 3

v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (emphasis omitted). 4

B. Assignment of Precincts and Cases 5 We also reject Rys's argument that she was subjected to disparate treatment 6 by being given more onerous assignments than her minority peers. Defendant-7 Appellee Davis assigned POs in the Brooklyn office to cases and precincts based 8 on geographical need. But even accepting Rys's assertion that she was assigned 9 to three precincts while her African-American colleagues were assigned to one or 10 two, Rys marshaled no evidence to show how busy each precinct was or to 11 demonstrate that she was assigned to more cases in comparison to her minority 12 peers. As such, her disparate treatment claim fails. 13

C. Parolee Reassignment Request 14 Finally, we reject Rys's argument that Defendants-Appellees' handling of 15 her threat complaint and the investigative process that followed reflected 16 discriminatory animus. The record shows Defendants-Appellees took swift action 17 to ensure Rys's safety after she was subjected to threats by her assigned parolee. 18 See Joint App'x at 351, 523-27, 564, 627-28.⁶Even if Defendants-Appellees were 19 found to have deviated from DOCCS's procedure in handling such incidents, Rys 20 presents no "circumstantial or other basis for inferring" that these actions were 21

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racially motivated. Tassy, 51 F.4th at 533; cf. Stern v. Trs. of Columbia Univ. in the 1 City of N.Y., 131 F.3d 305, 312-13 (2d Cir. 1997) (explaining that circumstantial 2 evidence of a defendant's "atypical," "unprecedented," and "unusual" behavior 3 could demonstrate discriminatory animus (internal quotation marks omitted)). 4 Absent evidence that her supervisors acted with discriminatory intent as to 5 any of her hostile work environment claims, we find that the district court 6 properly granted summary judgment for Defendants-Appellees. 7

III. Constructive Discharge 8 Because Rys's hostile work environment claim fails, her related constructive 9 discharge claim also fails. See Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 10 712, 725 (2d Cir. 2010) (stating that the standard for constructive discharge is 11 higher than the standard for establishing a hostile work environment). The district 12 court did not err in granting summary judgment for Defendants-Appellees. 13

* * * 14 We have considered Rys's remaining arguments and find them without 15 merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. 16

FOR THE COURT: 17

CATHERINE O'HAGAN WOLFE, Clerk of Court 18

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