Agosto v. New York City Department of Education

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