19-1479
Martin v. State of New York


                        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 30th day of March, two thousand twenty.

PRESENT:
                   ROBERT A. KATZMANN,
                        Chief Judge,
                   RICHARD C. WESLEY,
                   JOSEPH F. BIANCO,
                        Circuit Judges.


Denise Martin,

                              Plaintiff-Appellant,

                   v.                                               19-1479

State of New York, New York State Department of
Corrections and Community Supervision,

                              Defendants-Appellees,

                   v.

Jeffrey Rorick,

                              Defendant. 1




1
         The Clerk of Court is directed to amend the caption to conform to the above.
    For Plaintiff-Appellant:                     DAVID DETOFFOL, DeToffol & Associates,
                                                 Attorneys at Law, New York, NY.

    For Defendants-Appellees:                    CAROLINE A. OLSEN, Assistant Solicitor General
                                                 (Barbara D. Underwood, Solicitor General,
                                                 Anisha S. Dasgupta, Deputy Solicitor General,
                                                 on the brief), for Letitia James, Attorney
                                                 General, State of New York, New York, NY.

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

New York (Cote, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

          Denise Martin appeals from a judgment of the United States District Court for the Southern

District of New York (Cote, J.) granting summary judgment to the New York State Department of

Corrections and Community Supervision (“DOCCS”) on Martin’s hostile work environment claim

brought under Title VII of the Civil Rights Act of 1964. 2 We assume familiarity with the factual

and procedural background of this case, and the issues raised on appeal.

          We review a district court’s grant of summary judgment de novo, “resolving all ambiguities

and drawing all reasonable factual inferences in favor of the party against whom summary

judgment is sought.” Oxford Univ. Bank v. Lansuppe Feeder, LLC, 

, 103 (2d Cir.

2019). 3 We affirm for substantially the reasons stated by the district court in its thorough and well-

reasoned opinion. See Martin v. New York State, No. 1:17-cv-9721-DLC, 

, at

*3–5 (S.D.N.Y. May 9, 2019).




2
       As Martin’s counsel confirmed at oral argument, she has abandoned any claim she may
have pressed under the New York State Human Rights Law, leaving only her federal Title VII
claim remaining on appeal.
3
       Unless otherwise indicated, in quoting cases, we omit all citations, alterations, emphases,
footnotes, and internal quotation marks.

                                                  2
       Where a hostile work environment is created “by the plaintiff’s non-supervisory

coworkers, an employer’s vicarious liability depends on the plaintiff showing that the employer

knew (or reasonably should have known) about the harassment but failed to take appropriate

remedial action.” Wiercinski v. Mangia 57, Inc., 

, 113 (2d Cir. 2015). Otherwise

stated, we apply a negligence standard to determine whether an employer may be held liable for a

hostile work environment that was created by a coworker who was not the victim’s supervisor. See

Bentley v. AutoZoners, LLC, 

, 91 (2d Cir. 2019). On appeal, Martin does not

meaningfully contest the district court’s conclusion that Jeffrey Rorick, the individual responsible

for the hostile work environment at issue, was a non-supervisory coworker, and has accordingly

forfeited any argument to that effect. We therefore apply a negligence standard to determine

whether DOCCS may be held liable for the consequences of Rorick’s behavior. Under that

standard, an employer with knowledge of a hostile work environment must “take reasonable steps

to remedy it.” Distasio v. Perkin Elmer Corp., 

, 63 (2d Cir. 1998). “Whether the

[employer’s] response was reasonable has to be assessed from the totality of circumstances.

Factors to be considered in this analysis are the gravity of the harm being inflicted upon the

plaintiff, the nature of the employer’s response in light of the employer’s resources, and the nature

of the work environment.”

       Applying that standard here, and drawing all permissible factual inferences in Martin’s

favor, we conclude that DOCCS acted reasonably under the circumstances. Martin contends that

DOCCS’s response was both untimely and inadequate, and that a reasonable jury therefore could

have found in her favor. We disagree. Instead, as the district court concluded based on the

undisputed evidence, the remedial steps taken by DOCCS were both reasonable and sufficiently

expeditious — both as to Rorick’s personal conduct and as to the ongoing behavior of Martin’s




                                                 3
co-workers — given the nature and timing of Martin’s complaints and the needs of the DOCCS

investigation, including DOCCS’s ability to substantiate Martin’s allegations.

       Furthermore, we are not persuaded by Martin’s argument that the DOCCS investigator

assigned to her case violated DOCCS policy by not forwarding her complaint to the DOCCS

Bureau of Labor Relations. The undisputed evidence shows that the Bureau of Labor Relations

does not investigate accusations of employee misconduct. Martin’s argument to the contrary relies

on the fact that the Bureau of Labor Relations ultimately served a Notice of Discipline on Rorick,

but this occurred only because the Bureau of Labor Relations does have a responsibility to

implement the recommendations of the DOCCS’s investigative bodies. As Martin points to no

other evidence in the record to suggest that the DOCCS investigator violated any policy, we reject

this argument as well.

       We have considered all of Martin’s remaining arguments and found in them no basis for

reversal. For the reasons stated above, the judgment of the district court is AFFIRMED.

                                             FOR THE COURT:

                                             Catherine O’Hagan Wolfe, Clerk




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