Agosto v. New York City Department of Education ( 2020 )

19-2738-cv
Agosto v. New York City Department of Education, et al.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2019
No. 19-2738-cv
JASON AGOSTO,
Plaintiff-Appellant,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, MANUEL UREÑA,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: JUNE 25, 2020
DECIDED: DECEMBER 4, 2020
Before: CABRANES, LOHIER, and MENASHI, Circuit Judges.
Jason Agosto, a teacher at the public High School of Art and
Design in New York City, appeals from a judgment entered August
12, 2019, by the U.S. District Court for the Southern District of New
York (Hellerstein, J.). The court granted summary judgment to the
New York City Department of Education and Principal Manuel Ureña
on Agosto’s claim of First Amendment retaliation and on his Title VII
claims of a sex-based hostile work environment and retaliation. We
affirm.
Agosto’s speech consisted of grievances about employment
disputes that are not matters of public concern, and therefore his
speech was not protected against retaliation by the First Amendment.
Even if some of Agosto’s speech were so protected, the district court
still would have been correct to grant qualified immunity to Ureña.
The district court also correctly concluded that Agosto’s Monell claim
against the Department of Education fails because Ureña was not a
policymaker, and therefore Agosto cannot identify any municipal
policy that allegedly caused a constitutional violation.
Summary judgment was also properly granted on Agosto’s
Title VII claims. The sex-based hostile work environment claim fails
because Ureña’s actions were not sufficiently severe or pervasive to
alter the terms of Agosto’s employment. The retaliation claim fails
because there is insufficient evidence of a causal link between
Agosto’s protected activity and the allegedly retaliatory acts.
Accordingly, we AFFIRM.
Judge Lohier concurs in part and concurs in the judgment in a
separate opinion.
JORDAN F. HARLOW, Glass Harlow & Hogrogian LLP,
New York, NY, for Plaintiff-Appellant.
LORENZO DI SILVIO, Office of the Corporation Counsel of
the City of New York, New York, NY (James E. Johnson,
Richard Dearing, Aaron M. Bloom on the brief), for
Defendants-Appellees.
2
MENASHI, Circuit Judge:
Public high school teacher Jason Agosto alleges that he suffered
retaliation in violation of the First Amendment after filing union and
employment grievances critical of Principal Manuel Ureña. Agosto
further alleges that Ureña’s actions set official policy for the New York
City Department of Education, which he argues should be liable for
Ureña’s actions pursuant to Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978).
As a public employee, Agosto must demonstrate that the
speech for which he allegedly suffered retaliation was made as a
private citizen and was on a matter of public concern. We conclude
that his First Amendment claim fails because his complaints were not
on matters of public concern. His complaints alleged that Ureña had
not followed proper collective-bargaining procedures before
changing options available for teachers to use during their
“professional period” each day, had not turned over budget
documents that Agosto requested, had recruited another teacher to
report what he heard at a teachers’ union meeting, and had retaliated
against Agosto for his actions within the union. This court’s precedent
makes clear that Agosto’s complaints are not related to matters of
public concern and therefore are not protected against retaliation by
the First Amendment. Moreover, even if Agosto’s speech were so
protected, Ureña would be entitled to qualified immunity because a
reasonable employee would not have been on notice that Agosto’s
speech involved a matter of public concern and also because the law
on whether employment grievances are private speech was not
clearly established at the time.
3
Agosto’s Monell claim against the Department of Education
fails because he has not identified a municipal policy that allegedly
caused a constitutional violation. Agosto seeks Monell liability solely
on the theory that Ureña’s acts set final policy for the Department of
Education. The Supreme Court has explained that a single official can
create Monell liability only if state law provides that official with
authority to set final, municipality-wide policy in the relevant area.
No state law conferred such power on Ureña, who was one of
hundreds of principals within the Department of Education subject to
the chancellor’s regulations and to statutory authorities regarding
teacher discipline and evaluations. Agosto’s claim boils down to the
theory that Ureña was a final policymaker because his decisions with
respect to Agosto were essentially unreviewable. But the Supreme
Court has rejected the concept of de facto policymaking authority,
which erroneously conflates a final decisionmaker (which Ureña may
have been) with a final policymaker (which Ureña was not).
The district court also correctly granted summary judgment on
Agosto’s Title VII claims. His sex-based hostile work environment
claim fails because he has not demonstrated severe or pervasive
hostility in the workplace, and his retaliation claim fails because he
has not demonstrated a causal link between protected activity and
any allegedly adverse action.
We affirm the district court’s grant of summary judgment to the
defendants.
4
BACKGROUND
I
In 2004, Jason Agosto began working as a teacher at the High
School of Art and Design, a public school in New York City. During
the period relevant to this lawsuit, Agosto served as the chapter
leader of the teachers’ union. Defendant Manuel Ureña became the
principal of the school in January 2016.
For the 2013-14 school year, the New York City Department of
Education introduced a new system for evaluating teachers, who
would be rated “highly effective,” “effective,” “developing,” or
“ineffective” in a series of categories. J. App’x 907. At the end of the
school year, each teacher received an overall rating based on a
combination of the ratings he or she received for performance and for
student learning. J. App’x 908-09.
Agosto’s ratings declined after Ureña became principal. In May
2016, Ureña observed Agosto’s class and rated him “effective” in one
category but “developing” in two categories and “ineffective” in four
categories. J. App’x 148-49. Agosto received an overall rating of
“developing” for the 2015-16 school year, which resulted in his
placement on a teacher improvement plan for the 2016-17 school year,
during which he had to meet weekly with Ureña. J. App’x 764-66, 917-
18.
In December 2016, Ureña again observed Agosto and rated him
“developing” in five categories and “ineffective” in two categories.
J. App’x 212. Despite those ratings, Agosto received an overall rating
of “effective” for the 2016-17 school year and was not placed on an
improvement plan for the following year. J. App’x 920.
5
During the relevant period, Ureña wrote three “letters to file”
for Agosto. Letters to file are notations of misconduct that do not
directly constitute formal discipline proceedings but may lead to
formal discipline. The teacher who is the subject of such a letter
receives a copy, and it is placed in that teacher’s personnel file.
The first letter was issued on May 27, 2016, because Agosto had
been asked to send a week’s worth of work to a suspended student
but had allegedly refused to send more than the assignments for two
days.
The second letter was issued on June 27, 2017, after the Parent
Chairperson of the School Leadership Team sent a complaint to
Manhattan Superintendent Marisol Rosales accusing Agosto of
making a threatening statement after a meeting on June 15, 2017.
The third letter was issued on October 23, 2017, after Agosto
allegedly kept turning around and asking Ureña the same question
during a classroom observation session.
II
During the 2015-16 and 2016-17 school years, Agosto filed
numerous grievances about Ureña.
In May 2016, pursuant to the teachers’ collective bargaining
agreement, Agosto filed a union grievance claiming that Ureña had
improperly modified the “C-6 menu,” which provides options of
professional activities that teachers may choose for their professional
period each school day. J. App’x 365-68, 929-30. Agosto claimed that
Ureña had met with him in advance to discuss the changes but had
not shown the proposed changes to the union chapter as a whole and
thus had violated a CBA provision. In June 2017, after a representative
6
of the chancellor of the Department of Education rejected this
grievance, Agosto filed a grievance with the New York Public
Employment Relations Board (PERB) asserting the same complaint
about the C-6 menu.
In May 2016, Agosto filed another union grievance challenging
Ureña’s denial of Agosto’s request for budget documents for the High
School of Art and Design for 2011-14. Agosto said he “wanted to
know where that money went, what happened with those budgets”
because a prior principal had allegedly let an assistant principal make
budget decisions without sufficient input from the teachers’ union.
J. App’x 122-24, 932.
In June 2017, Agosto filed a PERB complaint alleging that
Ureña had made an assistant principal ask a probationary teacher to
attend a union meeting and report back because Ureña “was working
on terminating [Agosto] and was interested in knowing who the
replacement would be.” J. App’x 643-47.
In July 2017, Agosto filed another PERB complaint alleging that
Ureña had retaliated against Agosto over a period of time because of
Agosto’s union activity.
In December 2017, Agosto filed a union grievance alleging that
Ureña harassed Agosto after he filed his May 2016 grievance
regarding the C-6 menu.
Agosto also alleges that Ureña “began sexually harassing
[Agosto] in January 2017.” J. App’x 971. Agosto’s sworn affidavit
states that the “first incident” was during a meeting on January 20,
2017, when Ureña is alleged to have suggestively licked a lollipop
while looking at Agosto, who perceived Ureña to be “simulat[ing]
7
fellatio” with the lollipop. Id. Ureña claims that he had a lollipop tree
in his office and often ate lollipops during meetings but did not do so
suggestively. Agosto maintains that in early February 2017, he
accused Ureña of sexually harassing him and then filed an EEOC
complaint on March 16, 2017. Agosto alleges that Ureña’s misconduct
continued. For example, in May 2017, Ureña allegedly sang part of the
song “Tomorrow” from the musical Annie while emphasizing the
lyrics “I’ll love you, tomorrow” and staring at Agosto. Id. In October
2017, Ureña allegedly followed Agosto closely down a hallway at
school while shouting “It’s a beautiful day.” Id. Agosto also claims
that Ureña would often “stare” or “sneer” at Agosto, “cat-call and
clap” at him, and make unspecified derogatory and demeaning
comments toward or about him. Id.
III
In November 2017, Agosto filed a complaint in the U.S. District
Court for the Southern District of New York, naming the New York
City Department of Education and Ureña as defendants and alleging
First Amendment retaliation, a sex-based hostile work environment
and retaliation in violation of Title VII, and state-law violations. After
discovery, the district court (Hellerstein, J.) granted summary
judgment to the defendants on the federal claims and declined to
address the state-law claims. 1
On the First Amendment retaliation claim, the district court
noted that Agosto’s grievances “may” have been protected speech,
J. App’x 1248-49, but, even if so, qualified immunity protected Ureña
because at the relevant time there was no precedent clearly
1 Agosto does not appeal the district court’s decision declining to review
the state-law claims.
8
establishing that Agosto’s employment grievances would qualify for
First Amendment protection from retaliation.
The district court also rejected Agosto’s claim for Monell
liability against the Department of Education, holding that there was
no municipal policy or custom that caused the alleged violations.
Ureña’s decisions were reviewable by higher-level officials and thus
could not be “final” policymaking decisions. Even if not reviewable,
those decisions did not set municipal policy because Ureña’s “status
as a final decisionmaker with respect to teacher evaluations would not
make him the final policymaker,” and a “handful of disciplinary letters
does not constitute municipal policy.” J. App’x 1251-52.
On the Title VII hostile work environment claim, the district
court held that Agosto failed to demonstrate that Ureña’s conduct
was based on Agosto’s sex or that it amounted to objectively severe
or pervasive hostile conduct. The retaliation claim failed because of
the lengthy time gap between protected activity and adverse action,
and any weak causal link was further undercut by the fact that the
closest-in-time adverse action had been prompted by a third party—
the parent who claimed Agosto threatened her after a meeting in June
2017.
Agosto timely appealed to this court.
DISCUSSION
I
Agosto argues that the district court erred by granting
summary judgment on his 42 U.S.C. § 1983 claim alleging retaliation
for speech protected by the First Amendment. Reviewing the matter
de novo, see Weintraub v. Bd. of Educ. of City Sch. Dist., 593 F.3d 196, 200
9
(2d Cir. 2010), we conclude that Agosto’s grievances and complaints
were not on a matter of public concern and therefore were not
protected from retaliation by the First Amendment. Even if some of
the speech did relate to matters of public concern, Ureña would be
entitled to qualified immunity. Agosto also challenges the district
court’s grant of summary judgment to the Department of Education
on his Monell claim, but we agree with the district court that Agosto
has not identified any municipal policy that caused an alleged
constitutional violation.
A
To establish First Amendment retaliation by a government
actor, the plaintiff must demonstrate that “(1) his or her speech or
conduct was protected by the First Amendment; (2) the defendant
took an adverse action against him or her; and (3) there was a causal
connection between this adverse action and the protected speech.”
Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (alterations
omitted).
When the plaintiff is a government employee, the first element
is satisfied only if the employee “spoke as a private citizen and … the
speech at issue addressed a matter of public concern”—that is, the
speech must be “fairly considered as relating to any matter of
political, social, or other concern to the community” and be of
“‘general interest’ or of ‘legitimate news interest.’” Id. at 393, 399. For
public employees, speech that “principally focuses on an issue that is
personal in nature and generally related to the speaker’s own
situation or that is calculated to redress personal grievances—even if
touching on a matter of general importance—does not qualify for
First Amendment protection.” Id. at 399-400 (internal quotation
10
marks, citation, and alteration omitted). In this analysis, the “forum
in which a petition is lodged will be relevant to the determination
whether the petition relates to a matter of public concern” because a
“petition filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to the public
or to advance a political or social point of view beyond the
employment context.” Borough of Duryea, Penn. v. Guarnieri, 564 U.S.
379, 398 (2011). Even when a plaintiff satisfies these elements, the
government may prevail by demonstrating that it “had an adequate
justification for treating the employee differently” from other
members of the public. Montero, 890 F.3d at 395; see Garcetti v. Ceballos,
547 U.S. 410, 418 (2006).
Each element of this analysis poses a question of law that we
review de novo. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013).
Agosto asserts that his speech “can be divided into several
different categories,” Reply Br. 4, each of which centers around
certain grievances he filed. The defendants do not dispute that Agosto
“spoke as a private citizen” when making those grievances, Montero,
890 F.3d at 394, but instead contend that none of his “categories” of
speech addressed a matter of public concern, see id. We agree.
Agosto’s first category of allegedly protected speech includes
his complaints that Ureña did not fully comply with the collective
bargaining agreement before making changes to the “C-6 menu.”
J. App’x 11-12. The form of Agosto’s speech—internal union and
PERB grievances—suggests the absence of a matter of public concern.
Guarnieri, 564 U.S. at 398 (“A petition filed with an employer using an
internal grievance procedure in many cases will not seek to
communicate to the public or to advance a political or social point of
11
view beyond the employment context.”). The specific subject of the
grievances confirms that Agosto was not speaking on a matter of
public interest. We have previously explained that “[l]abor versus
management disputes, needless to say, almost invariably involve a
conflict between the labor force and management over an issue that
concerns the terms and conditions of employment” and that such
disputes “often have a strong flavor of ‘personal grievance’
notwithstanding that the personal grievance is shared by numerous
employees.” Lynch v. Ackley, 811 F.3d 569, 581 (2d Cir. 2016). Agosto’s
complaints about Ureña’s changes to the C-6 menu are no exception.
Agosto does not identify how the dispute in this case about an
internal CBA procedure for altering teachers’ planning periods is of
“political, social, or other concern to the [New York City] community”
rather than an internal dispute of interest to employees. Montero, 890
F.3d at 400. Indeed, compliance with the CBA procedure could be of
only limited interest because whether Ureña followed the approval
procedure apparently would have no effect on the final policy. 2
Agosto’s second category of allegedly protected speech
includes his May 2016 union grievance challenging Ureña’s refusal to
give Agosto copies of the school’s budgets for 2011-14. Agosto wanted
the budgets so he could “know where that money went, what
happened with those budgets” because a previous principal had
given too much budgetary influence to an assistant principal without
sufficient input from the teachers’ union. J. App’x 122-24, 932. Again,
that Agosto filed an internal grievance suggests his actions were not
2 See Oral Argument Audio Recording at 20:12-20:23 (Agosto’s counsel
stating that “[w]hether this proposal by Mr. Ureña was unilaterally
implemented by him or implemented through the ratification by the C-6
procedure, … this modification was going to happen”).
12
related to a matter of public concern. Guarnieri, 564 U.S. at 398.
Moreover, Agosto’s request appears to have been prompted by his
personal grievance against the school’s leadership for “den[ying]
input of the chapter” in financial decisions relating to the school,
J. App’x 122, rather than Agosto’s desire “to protect the public
welfare.” Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008);
see Singer, 711 F.3d at 339 (noting that, in determining whether speech
is on a matter of public concern, a relevant consideration is “whether
the speech was calculated to redress personal grievances or whether
it had a broader public purpose”).
But even if Agosto sought these documents for reasons beyond
his personal grievance, this court has previously held in an analogous
context that it does “not think that the public has a substantial interest
in minor payroll discrepancies amongst corrections department
staff.” Singer, 711 F.3d at 340. Although there might be differences
between corrections department staff and public school teachers,
Agosto was unable to identify any more substantial interest in
seeking the budget documents than was found to be insufficient in
Singer. Accordingly, Agosto’s request and grievance were not
protected speech sufficient to establish a retaliation claim.
Agosto’s third category of allegedly protected speech focuses
on his June 2017 grievance with the PERB accusing Ureña of
attempting to enlist another teacher to attend a union meeting and
report back because Ureña hoped to have Agosto replaced as the
union’s chapter leader. As with the actions discussed above, the fact
that Agosto filed an internal grievance suggests his speech was not
related to a matter of public concern. Guarnieri, 564 U.S. at 398. In any
event, whether this is described as a personal dispute between Agosto
and Ureña or as a “[l]abor versus management dispute[],” the subject
13
matter of his complaint confirms that it is not a matter of public
concern. Lynch, 811 F.3d at 581. Lynch involved similar speech: the
plaintiff had “fil[ed] a union grievance protesting [the police chief’s]
presence at a union meeting discussing the Department’s flex-time
policy.” Id. This court observed that it was “far from clear” that a
management official’s attempt to interlope in a union meeting would
be of any public concern. Id. The same is true here, where Agosto’s
concern appears to have been the protection of his own union
leadership position rather than to address a matter of general public
interest.
Agosto’s final category of allegedly protected speech relates to
his June 2017 grievance with the PERB accusing Ureña of retaliating
against Agosto for representing other teachers during union activity.
Filing a grievance raising his own alleged injuries is a paradigmatic
example of an action that “principally focuses on an issue that is
personal in nature and generally related to the speaker’s own
situation or that is calculated to redress personal grievances” and that
we have therefore held “does not qualify for First Amendment
protection” from retaliation. Montero, 890 F.3d at 399-400 (internal
quotation marks, citation, and alteration omitted).
Agosto also claims that his underlying acts of advocacy for
other teachers during union meetings was protected speech. But this
court has rejected the notion that “all activities undertaken through a
union necessarily become matters of public concern merely by virtue
of their collateral connection to the union,” Lynch, 811 F.3d at 582, and
Agosto does not explain how his advocacy regarding other
employees’ internal employment disputes would transform those
disputes into matters of public concern. See Guarnieri, 564 U.S. at 398.
14
Because none of Agosto’s grievances or actions addressed a
matter of public concern, his § 1983 claim for First Amendment
retaliation fails. 3
Even if some of Agosto’s actions were protected, however,
summary judgment would still have been properly granted to Ureña
because he would be entitled to qualified immunity. Qualified
immunity precludes individual liability when “reasonably
competent” officials could disagree about whether the conduct at
issue would violate a clearly established right. Cartier v. Lussier, 955
F.2d 841, 846 (2d Cir. 1992). To overcome qualified immunity, the
alleged right must have been clearly established by Second Circuit or
Supreme Court precedent at the time of the allegedly illegal action,
Montero, 890 F.3d at 402, but Agosto has pointed to no such precedent
here, relying instead on district court decisions. The analysis above
demonstrates that a reasonably competent principal would not have
been on notice that Agosto’s speech was on a matter of public concern.
Moreover, at the time of Agosto’s speech, our caselaw was unclear
about whether filing employment grievances was an act undertaken
as a private citizen, though that issue was subsequently clarified. See,
e.g., id. at 402-03; Lynch, 811 F.3d at 582 n.13.
3 On appeal, Agosto raises a new alleged act of retaliation: Ureña’s June
2019 decision to file against Agosto “section 3020-a charges”—a procedure
by which tenured teachers face formal discipline. Appellant’s Br. 18.
Because none of Agosto’s underlying speech was protected from
retaliation, however, we need not address this new claim of subsequent
retaliation. Moreover, the 3020-a charges were not included in the
complaint, nor did Agosto seek leave to amend the complaint to include
such claims. See, e.g., Lyman v. CSX Transp., Inc., 364 F. App’x 699, 702 (2d
Cir. 2010) (“[W]e note that plaintiff could have sought leave to amend his
complaint, but did not do so.”).
15
For these reasons, we affirm the district court’s grant of
summary judgment to Ureña on Agosto’s § 1983 claim.
B
Agosto next challenges the district court’s grant of summary
judgment to the Department of Education on his Monell claim for
municipal liability.
The elements of a Monell claim are (1) a municipal policy or
custom that (2) causes the plaintiff to be subjected to (3) the
deprivation of a constitutional right. Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983). Monell expressly prohibits respondeat superior
liability for municipalities, Monell, 436 U.S. at 691, meaning that a
plaintiff must demonstrate that “through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged,” Bd. of
Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997); Roe
v. City of Waterbury, 542 F.3d 31, 40 (2d Cir. 2008). “[G]overnments
should be held responsible when, and only when, their official
policies cause their employees to violate another person’s
constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 122
(1988) (plurality opinion).
Rather than argue that there is a written municipal policy or an
unwritten “practice [that] is so widespread as to have the force of
law,” Brown, 520 U.S. at 404, Agosto pursues Monell liability on the
theory that Ureña’s individual actions “represent official policy” for
the entire Department of Education, Jeffes v. Barnes, 208 F.3d 49, 57 (2d
Cir. 2000). The Supreme Court has said that a municipality may be
liable for the acts of a single official—but only if that official is
someone “whose edicts or acts may fairly be said to represent official
policy” for the entire municipality. Monell, 436 U.S. at 694. It is not
16
enough that an official had discretion to make a decision that was
unreviewable. Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir.
2003). Rather, the official must have been sufficiently “high up in the
municipal hierarchy,” Walker v. City of New York, 974 F.2d 293, 297 (2d
Cir. 1992), that he was “responsible under state law for making policy
in that area of the municipality’s business,” Jeffes, 208 F.3d at 57
(emphasis and alteration omitted). The authority to make policy
“necessarily” means “the authority to make final policy.” Praprotnik,
485 U.S. at 127. Stated another way, the official must have had state-
law “authority to adopt rules for the conduct of [the municipal]
government.” Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992).
“Whether the official in question possessed final policymaking
authority is a legal question, which is to be answered on the basis of
state law,” Jeffes, 208 F.3d at 57 (internal citations omitted), and
therefore must be resolved “before the case is submitted to the jury,”
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (emphasis
omitted).
Agosto points to no state authority indicating that a New York
City school principal has final “responsib[ility] under state law for
making policy” in any “area of the [Department of Education’s]
business” at issue in this case, Jeffes, 208 F.3d at 57 (emphasis omitted),
such that his “edicts or acts” would be considered to “represent
official policy” for the entire municipality, Monell, 436 U.S. at 694.4 To
the contrary, New York State law establishes that New York City
4 See Oral Argument Audio Recording at 7:51-8:10 (Agosto’s counsel
stating that “[t]here was no clear state or city policy outlining how and why
a principal can issue individual letters to file and observation reports, so
there was no policy to implement or frustrate”).
17
school principals such as Ureña are “[s]ubject to the regulations of the
chancellor,” N.Y. Educ. Law § 2590-i, who possesses expansive
powers to make policy for and to otherwise govern New York City
schools, see id. § 2590-h(1) (“The chancellor shall ... [c]ontrol and
operate … academic and vocational senior high schools.”). For
example, the chancellor has “authori[ty] to implement … ‘such
regulations and by-laws as may be necessary ... for the general
management, operation, control, maintenance and discipline of the
schools,’” Price v. N.Y.C. Bd. of Educ., 51 A.D.3d 277, 279-80 (1st Dep’t
2008) (citing N.Y. Educ. Law §§ 2590-h(17), 2554(13)(a)), and to
“[p]romulgate such rules and regulations as he or she may determine
to be necessary or convenient to accomplish the purposes of [the New
York Education Law],” N.Y. Educ. Law § 2590-h(16). As relevant here,
the chancellor has authority to make “a final determination” when
teachers appeal poor ratings, id. § 3012-c(5-c), and to resolve formal
disciplinary proceedings brought against teachers and staff,
including the power to terminate their employment, id. § 2590-h(38);
see id. § 3020-a. 5
Because state law invests the chancellor with such authority,
New York’s highest court has held that “the city board [of education]
and the Chancellor are responsible for policy having city-wide
impact.” N.Y.C. Sch. Bds. Ass’n v. Bd. of Educ. of City Sch. Dist., 39
N.Y.2d 111, 119 (1976).
5 State law also dictates its own detailed policies for the Department of
Education in areas such as annual teacher reviews. See N.Y. Educ. Law
§§ 3012-c, 3012-d (providing detailed requirements for “[a]nnual
professional performance review of classroom teachers and building
principals” and for “[a]nnual teacher and principal evaluations”).
18
Accordingly, state law provides “that there is a[] final
policymaker other than [Principal Ureña] with respect to” the areas of
municipal business for which Agosto claims Ureña was setting policy.
Jeffes, 208 F.3d at 60 (emphasis added); see Praprotnik, 485 U.S. at 127
(holding that the “authority to make municipal policy is necessarily
the authority to make final policy”). The Supreme Court has cautioned
that “a federal court would not be justified in assuming that
municipal policymaking authority lies somewhere other than where
the applicable law purports to put it.” Praprotnik, 485 U.S. at 126.
Because the chancellor appears to be the final policymaker for
the Department of Education with respect to teacher discipline and
school administration, Agosto has difficulty articulating precisely
how a school principal such as Ureña could have established
municipal policy. Agosto initially contended that “Ureña issued
Agosto [disciplinary letters and bad reviews] to implement the state
and city policy of disciplining tenured teachers pursuant to Education
Law Section 3020-a.” Reply Br. 16-17. But that argument fails because
the Supreme Court has held that “[w]hen an official’s discretionary
decisions are constrained by policies not of that official’s making,
those policies, rather than the subordinate’s [alleged] departures from
them, are the act of the municipality” that must be challenged,
Praprotnik, 485 U.S. at 127, and Agosto raises no challenge to § 3020-a
itself. 6 Agosto next argued that he does not “believe there needs to be
an overall, department-wide policy” because Ureña set “policy within
6Similarly, Agosto claims that Ureña’s allegedly harassing conduct created
municipal policy, but Agosto does not challenge the Department of
Education’s actual policies regarding harassment. See, e.g., N.Y. Dep’t of
Educ., Non-Discrimination Policy, https://www.schools.nyc.gov/about-
us/policies/non-discrimination-policy (last visited Aug. 5, 2020).
19
the school.” Oral Argument Audio Recording at 11:02-11:05, 13:33-
13:36. But a plaintiff must identify a municipal policy to prevail on a
Monell claim, and the relevant municipal entity in this case is the
Department of Education, not the High School of Art and Design. See
Walker, 974 F.2d at 301 (“Walker is suing the City of New York, not
Kings County. It is possible that an official could be a policymaker for
one of New York City’s constituent counties without being a
policymaker for the City.”).
Agosto has apparently settled on the theory that Ureña’s
disciplinary letters and negative evaluations were unreviewable by
higher-level officials within the Department of Education, making
Ureña the de facto final municipal policymaker on those specific
matters involving Agosto. Even assuming that Ureña’s actions were
unreviewable, Agosto’s claim still fails because the Supreme Court
has rejected the “concept of ‘de facto final policymaking authority.’”
Praprotnik, 485 U.S. at 131. A municipality’s “going along with
discretionary decisions made by [its] subordinates … is not a
delegation to them of the authority to make policy.” Id. at 130;
Auriemma, 957 F.2d at 401 (“Authority to make a final decision need
not imply authority to establish rules.”). Agosto must demonstrate
that “through its deliberate conduct, the municipality was the ‘moving
force’ behind the injury alleged,” Brown, 520 U.S. at 404, but he has
demonstrated no such deliberate conduct by the municipality here.
The only deliberate actor was Ureña. Moreover, by equating a final
decisionmaker with a final policymaker, Agosto’s approach would
effectively impose respondeat superior liability—making the
municipality liable for the conduct of its employees—in violation of
Monell itself. 436 U.S. at 691.
20
Agosto responds that even if Ureña were not the final
municipal policymaker for teacher discipline and evaluations, he was
the final policymaker at least for his own “discriminatory and
harassing behavior towards Mr. Agosto.” Appellant’s Br. 28. In
support of this argument, Agosto relies on a string of district court
decisions that cite one another for the proposition that “a public
school principal acts as a final policymaker to the extent that the
ultimate harm that befell the plaintiff was under the principal’s
control.” 7 But by erroneously equating a principal’s final decisions
7 Zambrano-Lamhaouhi v. N.Y.C. Bd. of Educ., 866 F. Supp. 2d 147, 175
(E.D.N.Y. 2011); see Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546,
562 (W.D.N.Y. 2013); Marino v. Chester Union Free Sch. Dist., 859 F. Supp. 2d
566, 569 (S.D.N.Y. 2012); T.Z. v. City of New York, 635 F. Supp. 2d 152, 179
n.27 (E.D.N.Y. 2009); Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 324
(E.D.N.Y. 2002); Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263,
268 (N.D.N.Y. 2000); see also Calicchio v. Sachem Cent. Sch. Dist., No. 14-CV-
5958, 2020 WL 264959, at *11 (E.D.N.Y. Jan. 17, 2020); Elgalad v. N.Y.C. Dep’t
of Educ., No. 17-CV-4849, 2018 WL 4572237, at *10 (S.D.N.Y. Sept. 24, 2018);
White v. Roosevelt Union Free Sch. Dist. Bd. of Educ., No. 15-CV-1035, 2017 WL
9485719, at *6-7 (E.D.N.Y. Dec. 20, 2017), adopted, 2018 WL 620485 (E.D.N.Y.
Jan. 30, 2018); Wellington v. Spencer-Edwards, No. 16-CIV-6238, 2017 WL
11512684, at *6 (S.D.N.Y. Sept. 28, 2017); N.U. ex rel. Amar v. E. Islip Union
Free Sch. Dist., No. 16-CV-4540, 2017 WL 10456860, at *15 (E.D.N.Y. Sept. 15,
2017); Krzesaj v. N.Y.C. Dep’t of Educ., No. 16-CIV-2926, 2017 WL 1031278, at
*10 (S.D.N.Y. Mar. 15, 2017); Joinnides v. Floral Park-Bellerose Union Free Sch.
Dist., No. 12-CV-5682, 2016 WL 3841096, at *11 (E.D.N.Y. July 13, 2016); J.R.
v. N.Y.C. Dep’t of Educ., No. 14-CIV-0392, 2015 WL 5007918, at *10 (E.D.N.Y.
Aug. 20, 2015); T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 374
(S.D.N.Y. 2014); Benedith v. Malverne Union Free Sch. Dist., 38 F. Supp. 3d
286, 316 (E.D.N.Y. 2014); Fierro v. N.Y.C. Dep’t of Educ., 994 F. Supp. 2d 581,
588 (S.D.N.Y. 2014); Giscombe v. N.Y.C. Dep’t of Educ., No. 12-CIV-464, 2013
WL 829127, at *7 (S.D.N.Y. Feb. 28, 2013); T.P. ex rel. Patterson v. Elmsford
Union Free Sch. Dist., No. 11-CV-5133, 2012 WL 5992748, at *4 (S.D.N.Y. Nov.
21
with a municipality’s final policies, those cases make the same
mistake as Agosto. We do not believe that approach is consistent with
Monell and accordingly decline to adopt it. Such an approach would
risk imposing Monell liability for almost every action a principal takes.
See Brown, 520 U.S. at 415 (“Where a court fails to adhere to rigorous
requirements of culpability and causation, municipal liability
collapses into respondeat superior liability.”).
Our conclusion that a New York City principal does not have
municipal policymaking authority for Monell purposes here finds
additional support in this court’s decision in Hurdle v. Board of
Education of City of New York, 113 F. App’x 423 (2d Cir. 2004). That case
is especially instructive because we held that a New York City
superintendent’s final decision to transfer a principal did not set
municipal policy. 8 “Any city acts exclusively through agents. If it
were enough to point to the agent whose act was the final one in a
particular case, we would have vicarious liability.” Hurdle, 113
F. App’x at 427 (alteration omitted). Hurdle involved a
superintendent—an official who outranks a principal such as
Ureña—but this court explained that even when the official “is the
apex of a bureaucracy,” that merely “makes the decision ‘final’ but
does not forge a link between ‘finality’ and ‘policy.’” Id. The ability to
27, 2012); Rausa v. Bd. of Educ. of the N. Syracuse Cent. Sch. Dist., No. 5:11-CV-
1152, 2012 WL 967052, at *8 (N.D.N.Y. Mar. 21, 2012).
8 “Although we decided [Hurdle] by nonprecedential summary order,
rather than by opinion, our ‘[d]enying summary orders precedential effect
does not mean that the court considers itself free to rule differently in
similar cases.’” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting
Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1). Because the facts
of Hurdle are particularly apposite, we consider that case here.
22
make a final transfer decision for one particular employee “does not
establish that [the official] had the authority to set the policy
authorizing involuntary employee transfers” for the entire
municipality. Id. The same is true here. Even assuming Ureña’s
discipline, evaluations, and harassing behavior were final decisions,
those acts did not set final municipal policy because Ureña lacked
policymaking authority under state law.
Because Agosto’s Monell claim rests on his erroneous theory
that Ureña was a final policymaker for the New York City
Department of Education, we affirm the district court’s grant of
summary judgment to the Department on Agosto’s § 1983 claim.
II
Agosto next challenges the district court’s grant of summary
judgment on his Title VII claims for a sex-based hostile work
environment and for retaliation. Reviewing the matter de novo, Zann
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 842 (2d Cir. 2013), we affirm.
A
The district court concluded that Agosto’s hostile work
environment claim failed because he did not show an objectively
hostile workplace or that the allegedly harassing conduct was because
of Agosto’s sex. We affirm on the first basis and therefore do not
address the second.
A hostile work environment claim requires a plaintiff to show
that his or her workplace was “so severely permeated with
discriminatory intimidation, ridicule, and insult that the terms and
conditions of [his or] her employment were thereby altered.”
Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013). “This
23
test has objective and subjective elements: the misconduct shown
must be ‘severe or pervasive enough to create an objectively hostile
or abusive work environment,’ and the victim must also subjectively
perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002). The incidents typically “must be more than
‘episodic; they must be sufficiently continuous and concerted in order
to be deemed pervasive.’” Id. A single incident may qualify, but to do
so it must be “extraordinarily severe.” Desardouin, 708 F.3d at 105.
Furthermore, the plaintiff “must demonstrate that the conduct
occurred because of” his protected status—in this case, because of
Agosto’s sex, id.—and also that a “specific basis exists for imputing
the conduct that created the hostile environment to the employer,”
Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004). 9
In support of his claim that he suffered a hostile work
environment, Agosto contends that Ureña would “stare,” “sneer,”
“cat-call and clap” at Agosto, and—on a few occasions over the course
of a year—sang or talked in an unusual manner to Agosto. These
latter incidents include once singing lyrics from the musical Annie
while staring at Agosto, once saying “Hi, Mr. Agosto” in “a feminine
voice,” and once walking closely to Agosto while yelling “It’s a
beautiful day.” Appellant’s Br. 36-37; J. App’x 971, 1011. The district
court did not err in concluding that these acts are insufficient to create
an objectively hostile workplace. See Desardouin, 708 F.3d at 105
(noting that the workplace must have been “severely permeated with
discriminatory intimidation, ridicule, and insult”). Title VII is not “a
general civility code” but rather “forbids only behavior so objectively
9 The defendants have not challenged the district court’s judgment with
respect to this final element.
24
offensive as to alter the ‘conditions’ of the victim’s employment.”
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998).
Agosto responds by pointing to two discrete acts that he claims
were so severe that, despite not being pervasive conduct, nonetheless
created a hostile work environment. The first such act was in March
2016, when Agosto claims that Ureña stood closely behind Agosto—
but did not touch him—while Agosto was bending over. In his
briefing to this court, Agosto describes this as a “simulated act of anal
penetration” on Agosto’s body. Appellant’s Br. 35. That is a serious
charge. But it is contradicted by Agosto’s own sworn affidavit filed at
the district court. In opposition to summary judgment, Agosto
attached an affidavit made under penalty of perjury in which he states
that Ureña “began sexually harassing me in January 2017”—not in
March 2016 or earlier—and the “first incident” of harassment was the
January 2017 lollipop episode. J. App’x 971. Agosto’s contention that
the first instance of harassment was actually in March 2016 therefore
contradicts his sworn affidavit and cannot create a material dispute
of fact. See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925
F.2d 566, 572 (2d Cir. 1991) (holding that a party may not “create a
material issue of fact” by “disputing his own prior sworn testimony”).
Moreover, Agosto’s affidavit demonstrates that, at the time of
summary judgment, even Agosto himself did not view Ureña’s act in
March 2016 as amounting to sexual harassment, let alone an incident
severe enough on its own to create a hostile work environment. See
Alfano, 294 F.3d at 374 (holding that, to create a triable issue, “the
victim must also subjectively perceive that environment to be
abusive”).
Even setting aside his sworn affidavit, Agosto points to nothing
in the record indicating that Ureña attempted to simulate a sex act on
25
Agosto. The March 2016 incident is not mentioned in the complaint,
and Agosto’s opposition to summary judgment did not attach the
deposition transcript pages in which he allegedly described the
incident, 10 meaning that the district court had no record evidence of
the incident. See Fed. R. Civ. P. 56(c)(1)(A) (noting that the party
opposing summary judgment must cite to “particular parts of
materials” that are “in the record”); Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2000) (holding that “unsupported allegations do
not create a material issue of fact”). The defendants’ reply in support
of summary judgment quoted what appears to be the relevant portion
of Agosto’s deposition, but that quotation says nothing about Ureña
simulating a sex act on Agosto. The district court therefore
understandably made no mention of the incident in its opinion. Given
the state of the record on appeal, Agosto cannot demonstrate that the
district court erred in concluding that there was no genuine dispute
of material fact on this issue sufficient to defeat summary judgment.
The second serious act that Agosto identifies was in January
2017, when Ureña allegedly looked at Agosto while licking a lollipop.
During his deposition, Agosto gave divergent descriptions of what he
believes Ureña did with the lollipop, ranging from “simulating
fellatio, back and forth in his mouth,” J. App’x 1002, to testifying just
seconds later that Ureña was merely doing “[w]hat you do when you
lick lollipops,” id. Even assuming Ureña did suggestively lick a
lollipop, we conclude that, while offensive and inappropriate, that
one-time act was not sufficiently severe to alter the terms of Agosto’s
10 See J. App’x 896 (Agosto’s brief opposing summary judgment, in which
he cites to pages 97-98 of his deposition transcript); J. App’x 996-97
(showing that, in Agosto’s attached exhibits, the transcript skips from page
88 to page 101).
26
employment. Although a single incident can create a hostile work
environment, the incident must have been “extraordinarily severe”
and therefore is reserved only for the most egregious conduct.
Desardouin, 708 F.3d at 105. For example, this standard was met when
a plaintiff was raped, Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136
(2d Cir. 2001), or was “punched in the ribs,” “temporarily blinded by
having mace sprayed in his eyes,” and “covered … with shaving
cream” all while being subjected to “racially offensive comments.”
Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 213, 230 (2d Cir. 2004).
By contrast, this court has held that there was insufficient evidence of
a hostile work environment when, for example, a plaintiff’s colleague
made a crude comment about her appearance and then “deliberately
touched [her] breasts with some papers that he was holding in his
hand.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.
1998), abrogated on other grounds by Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002).
Although offensive and inappropriate, Ureña’s alleged act of
suggestively licking a lollipop is not in the category of
“extraordinarily severe” single actions that create a hostile work
environment, such as the acts in Ferris and Patterson. Nor was Ureña’s
alleged act even as severe as the intimate touching and sexualized
comment that were held to be insufficient to survive summary
judgment in our prior, binding decision in Quinn. Agosto does not
claim that Ureña touched him at all, let alone that Ureña deliberately
touched a sensitive body part as occurred in Quinn. Nor does Agosto
claim that anyone else saw the lollipop incident or that it interfered
with his ability to maintain discipline over his students or teach his
classes—i.e., that it modified the terms of his employment. See Howley
v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (holding that a jury
27
could conclude that the plaintiff’s terms of employment and ability to
do her job had been altered after a colleague aggressively shouted her
down at a meeting by calling her extremely graphic sexual names “at
length, loudly, and in a large group” containing many of her
colleagues and subordinates, especially given that the profane “verbal
assault included charges that [the plaintiff] had gained her office of
lieutenant only by performing fellatio”). Ureña’s alleged actions fall
within the category of behavior that is “obviously offensive and
inappropriate” but did not “alter the conditions of [Agosto’s]
employment” such that it was actionable. Quinn, 159 F.3d at 768.
Because there was no objectively and subjectively hostile work
environment that altered the terms of Agosto’s employment, we
affirm the district court’s grant of summary judgment on Agosto’s
hostile work environment claim. 11
B
Agosto also appeals the district court’s grant of summary
judgment on his Title VII retaliation claim. To establish a prima facie
case of Title VII retaliation by a non-federal employer, an employee
must show that (1) “he was engaged in protected activity,” (2) “the
employer was aware of that activity,” (3) the employee suffered “a
materially adverse action,” and (4) there was “a causal connection
between the protected activity and that adverse action.” Rivera v.
11 Because we affirm on this basis, there is no need to reach Agosto’s
arguments that Ureña’s activity was motivated by sexual attraction and that
the district court therefore erred by concluding that the actions were not
because of Agosto’s sex.
28
Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014)
(alteration omitted). 12
We agree with the district court that Agosto failed to
demonstrate an adequate causal link between his protected activity
and allegedly adverse actions, and accordingly we do not address the
other prima facie elements. In support of causation, Agosto relies
solely on temporal proximity, and the closest chronological gap was
the 3.5-month period between the EEOC complaint he filed on March
16, 2017, and the “letter to file” Ureña issued on June 27, 2017. This
court has not imposed a strict time limitation when a retaliation claim
relies exclusively on temporal proximity, see Burkybile v. Bd. of Educ. of
Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir.
2005), but even Agosto acknowledges that a gap of “more than several
months” is typically too long by itself to survive summary judgment.
Appellant’s Br. 40. Even assuming some weak causal inference from
the 3.5-month gap, that inference is fatally undermined by the fact
that the June 2017 letter to file was triggered by an independent
actor—the Parent Chairperson of the School Leadership Team who
complained to the Manhattan Superintendent, accusing Agosto of
making a threat after a meeting—indicating that Ureña’s subsequent
letter to file was not a contrived excuse to penalize Agosto for prior
12 The retaliation provision applicable to the New York City Department of
Education is 42 U.S.C. § 2000e-3(a), which contains no express adverse
action requirement, and accordingly the Supreme Court has held that a
plaintiff alleging retaliation need not have suffered a formal personnel
action but rather only an action that would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. &
Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also 42 U.S.C. § 2000e-
16(a) (requiring, in Title VII actions against the federal government,
demonstration of a “personnel action[]”).
29
protected activity. Agosto’s other alleged acts of retaliation are even
more remote in terms of chronological proximity and therefore do not
present triable issues.
The district court correctly granted summary judgment on
Agosto’s Title VII retaliation claim.
CONCLUSION
We AFFIRM the district court’s grant of summary judgment to
the defendants.
30
1 LOHIER, Circuit Judge, concurring in part and concurring in the judgment:
2 I concur fully in the majority’s excellent opinion except for Section II.A,
3 which affirms the District Court’s dismissal of Agosto’s hostile work
4 environment claim stemming from an alleged incident of sexual harassment
5 in March 2016. In my view, the only reason to affirm the dismissal of that
6 claim is that it was unsupported by the district court record. I respectfully
7 disagree with the additional reason the majority opinion supplies.
8 To explain why, I turn to the procedural background. In opposing
9 summary judgment, Agosto submitted a sworn affidavit that failed to
10 mention the March 2016 incident and pointed instead to another event nine
11 months later, in January 2017, as the first time he was harassed. Agosto first
12 described the March 2016 incident of sexual harassment in his brief in
13 opposition to the defendants’ motion for summary judgment, see J. App’x
14 896, and in his Rule 56.1 Counterstatement, see J. App’x 946. In their reply
15 brief in support of the motion, furthermore, the defendants quoted part of
16 Agosto’s deposition testimony relating to the March 2016 incident. Agosto
17 testified as follows: “I was bending down, and I was bending down to speak
19-2738-cv
Agosto v. N.Y.C. Dep’t of Educ.
1 to them, and my derriere was up, arched, and all of a sudden I felt something
2 hovering over me . . . . I turned around, and I see [Ureña].” J. App’x 1236.
3 As the majority explains, although Agosto referred to the incident in his
4 brief and cited to the relevant deposition transcript pages describing the
5 incident, he failed to attach the pages to his summary judgment papers so that
6 they could properly be considered by the District Court as part of the
7 summary judgment record. We should affirm the dismissal of the claim for
8 that limited reason alone, and I would have ended the analysis there.
9 But the majority opinion also affirms on the additional ground that the
10 District Court could in any event have disregarded Agosto’s testimony about
11 the March 2016 incident on summary judgment because it “contradicted”
12 Agosto’s sworn affidavit, which failed to mention the incident. See Majority
13 Op. at 25. This approach is both unnecessary and, in my view, a mistake.
14 First, it ignores that “when a district court is asked to consider contradictory
15 deposition testimony of a fact witness at summary judgment, a district court
16 may not discredit a witness's deposition testimony . . . because the assessment
17 of a witness's credibility is a function reserved for the jury.” Moll v.
2
19-2738-cv
Agosto v. N.Y.C. Dep’t of Educ.
1 Telesector Res. Grp., Inc., 760 F.3d 198, 206 (2d Cir. 2014) (quotation marks
2 omitted). Second, it reflects a misunderstanding of the sham issue of fact
3 doctrine, which “prohibits a party from defeating summary judgment simply
4 by submitting an affidavit that contradicts the party's previous sworn
5 testimony.” Id. at 205 (emphasis omitted) (quoting In re Fosamax Prods. Liab.
6 Litig., 707 F.3d 189, 193 (2d Cir. 2013)). The affidavit can be disregarded (and
7 summary judgment can thus be granted) only if it clearly, “unequivocal[ly]
8 and inescapabl[y]” contradicts the prior statement. Bentley v. AutoZoners,
9 LLC, 935 F.3d 76, 86 (2d Cir. 2019) (quotation marks omitted). Not even an
10 “arguably contradictory” affidavit is enough to reject the party’s testimony at
11 the summary judgment stage. See Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614,
12 620 (2d Cir. 1996) (plaintiff’s failure to identify his alleged enemies to prison
13 officials at his first deposition and his later ability to do so at his second
14 deposition was only “arguably contradictory” and thus insufficient to dismiss
15 plaintiff’s deliberate indifference claims on summary judgment).
16 To be sure, the omission of the March 2016 incident from Agosto’s
17 sworn affidavit could well prompt a factfinder to think that Agosto is lying
3
19-2738-cv
Agosto v. N.Y.C. Dep’t of Educ.
1 about the incident. But it can hardly be said to trigger the sort of real,
2 “inescapable and unequivocal” contradiction that permits a district court to
3 reject otherwise admissible evidence based on the sham issue of fact doctrine.
4 Bentley, 935 F.3d at 86; see Rivera v. Rochester Genesee Reg’l Transp. Auth.,
5 743 F.3d 11, 22–23 (2d Cir. 2014) (that plaintiff did not initially complain of the
6 slurs to his employer “may lead a factfinder to find that claim not credible,
7 but there is no real, unequivocal, and inescapable contradiction”). Whatever
8 mismatch exists between Agosto’s testimony and his affidavit, it was not
9 alone a reason to prevent the District Court from considering the March 2016
10 incident at summary judgment. See Hayes, 84 F.3d at 620.
11 For this reason, I respectfully concur in the judgment as to Section II.A
12 and concur fully in all other respects.
4