09-1859 | Omnilex

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09-1859-CV
Kaytor v. Electric
Boat Corp.

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

- - - - - -
August Term, 2009

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(Argued: January 13, 2010
Decided: June 29, 2010)

Docket No. 09-1859-CV

SHARON KAYTOR,

Plaintiff-Appellant,

\- V. -

ELECTRIC BOAT CORPORATION,

Defendant -Appellee.

Before: KEARSE, CABRANES, and HALL, Circuit Judges.

Appeal from a judgment of the United States District
Court for the District of Connecticut, Dominic J. Squatrito,
Judge, summarily dismissing claims of hostile work environment,
retaliation, and intentional infliction of emotional distress for
lack of evidence as to, inter alia, harassment on the basis of
gender, sufficiently severe or pervasive harassment, or outrageous
conduct. See Kaytor v. Electric Boat Corp., No. 3:06CV01953, 2009
WL 840669 (D. Conn. Mar. 31, 2009) .

Affirmed in part, vacated and remanded in part.

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CYNTHIA R. JENNINGS, Windsor, Connecticut, for
Plaintiff-Appellant.

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MICHAEL CLARKSON, Boston, Massachusetts (Robert
P. Joy, Morgan, Brown & Joy, Boston,
Massachusetts, on the brief), for
Defendant -Appellee.

GAIL S. COLEMAN, Washington, D.C. (James L. Lee,
Deputy General Counsel, Lorraine C. Davis,
Acting Associate General Counsel, Carolyn
L. Wheeler, Assistant General Counsel,
United States Equal Employment Opportunity
Commission, Washington, D.C., on the
brief) , for Amicus Curiae United States
Equal Employment Opportunity Commission in
support of Appellant.

KEARSE, Circuit Judge:

Plaintiff Sharon Kaytor appeals from a judgment of the
United States District Court for the District of Connecticut,
Dominic J. Squatrito, Judge, dismissing her complaint alleging
principally that defendant Electric Boat Corp. ("Electric Boat" or
the "Company"), her former employer, discriminated against her on
the basis of gender by maintaining a hostile work environment and
retaliated against her for complaining about sexual harassment by
her supervisor, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. ( "Title VII"), and state law.
The district court granted summary judgment dismissing the
complaint, concluding, inter alia, that Kaytor failed to adduce
evidence that would permit inferences that the incidents of which
she complained were sufficiently pervasive or severe to create a
hostile work environment, were gender-related, or were
retaliation for her protests against sexual harassment. On
appeal, Kaytor contends that summary judgment was inappropriate
because there were genuine issues of material fact to be tried as

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to each of her claims. For the reasons that follow, we agree that
summary judgment was inappropriate with respect to Kaytor's claims
of hostile work environment and with respect to one aspect of her
claims of retaliation, and we remand for further proceedings with
respect to those claims. As to Kaytor's other claims, we affirm
the judgment of dismissal.

# I. BACKGROUND

Electric Boat designs and builds nuclear submarines for
the United States Navy in Groton, Connecticut. Kaytor worked at
Electric Boat from 1973 until her employment was terminated by the
Company in January 2007. Her claims of gender discrimination
center on her treatment by Daniel J. Mccarthy, one of the managers
in the engineering department, from 2004 through April 2005. The
following description, taken largely from Kaytor's deposition
testimony in the present action ("Kaytor Dep. ") and from, to an
extent, Electric Boat's Investigative Report dated July 21, 2005
( "EB Report" or "Report"), with respect to Kaytor's complaints
about Mccarthy, sets out the evidence in the light most favorable
to Kaytor as the party against whom summary judgment was granted.

## A. The Events Involving McCarthy

From 1998 until late January 2007 Kaytor was an
administrative assistant in Electric Boat's engineering
department, and from 1998 until mid-May 2005 she was secretary to

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McCarthy. His branch of the department included several dozen
engineers, whose work was overseen by six supervisors who reported
to him. Kaytor testified that her job with Mccarthy included
ordering supplies for the entire engineering department, which
included 400-500 engineers. (See Kaytor Dep. 17.) This entailed
some degree of discretion. McCarthy would give her a budget and
have her determine, based on her knowledge and experience, what
should be ordered; Kaytor would send McCarthy information as to
whatever she was ordering, and he would routinely approve. (See
id. at 16-17.) Kaytor testified that during the first several
years in which she worked directly for McCarthy, their
relationship was suitably businesslike. (See id. at 176.)

In 2004 and 2005, however, McCarthy was "having problems, "
going through a divorce (id. at 183; see id. at 181, 242; EB
Report at 13), and seemed to undergo a change of character (see
Kaytor Dep. 181-83, 241). Although he never touched Kaytor in a
violent or sexual way, never asked her for sex, and never asked
her out on a date (see id. at 192), in 2004 McCarthy began making
inappropriate comments to her and engaging in sexually suggestive
behavior. Although he frequently made fun of women, especially of
their weight, and made comments about their bodies (see id.
at 226) , McCarthy paid Kaytor compliments on her clothing (see id.
at 245) and told her she looked good for a woman her age (see EB
Report at 10) . Some of his comments were not in and of themselves
offensive, but on many occasions Kaytor perceived McCarthy to be
staring at her body and leering at her (see Kaytor Dep. 245-46) ;

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she testified that her reaction was to "ignore the look" (id.
at 246) . On one occasion, McCarthy entered Kaytor's office and
complimented her on two scarves that were lying on her desk. He
then picked them up, "brought them to his nose and he sa [id],
'Umm, they smell like you. '" (Id. at 204.) Mccarthy then
approached Kaytor more closely, apparently smelling her hair;
Kaytor became nervous, turned her back, and started typing until
Mccarthy departed. (See id. )

Kaytor testified that she believes Mccarthy "had designs"
on her and that "when things did not go his way, the relationship
became sour and he would make many off-colored comments to me, "
such as stating "you have a flat ass." (Kaytor Dep. 176; see also
id. at 255 ("I believe Mr. McCarthy was very bitter because I
would not associate with him outside the workplace or fall for his
advances. ") .) Mccarthy's initial "flat ass" comment, which he
promptly repeated, came "out of the blue" while Kaytor was talking
to one of the supervisors: "All of a sudden out of the blue Mr.
McCarthy yells out at the top of his lungs and everybody could
hear, you have a flat ass." (Id. at 179-80.)

Mccarthy also threatened Kaytor with physical harm (see
Kaytor Dep. 186-87) and often wished her dead, saying "I'd like to
see you in your coffin" (id. at 177) . On at least six occasions,
McCarthy said he wanted to "choke" Kaytor. (E.g., id. at 186-87.)
Coworkers who overheard these comments would come up to Kaytor
and say, "'Do you realize what he's saying, Sharon? You should
start thinking about taking it more seriously. '" (Id. at 187.)

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Kaytor testified that, instead, she "would brush it off time and
time again."
(Id. at 186.)
Kaytor did not complain to the
Company's human resources department ("HR") about the choking
comments but did complain to her union counselor, who told her to
"'cut [Mccarthy] some slack'" because he was "going through a
divorce"; so she kept "brushing it off thinking he doesn't mean
it. . . .
But the more he kept saying it, [she] became a little
bit nervous. "
(Id. at 191.) Kaytor testified that on one
occasion, McCarthy "called me into his office . . . and he said
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out of the blue, 'I wish you were retired. ' And I said, 'Why?'
And he said, 'So I could come to your home and choke you. '" (Id.
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Kaytor also described an incident in which she had
informed McCarthy that she needed to leave the office at a certain
time for a doctor's appointment, and she and some of her female
coworkers had discussed that she was to have her annual checkup
with her gynecologist. McCarthy apparently overheard that
discussion; and as Kaytor was leaving, walking down the hallway,
McCarthy yelled, in the presence of several coworkers, "'You are
going where every man wants to be. '" (Kaytor Dep. 177, 206-07.)
On another occasion, McCarthy "stated that [Kaytor] was spreading
[her] legs for the doctor." (Id. at 177.)

Kaytor complained about some of these events to her union
representative; but until April 2005, she had not complained to
Electric Boat's higher management. In early 2005, Kaytor had told
McCarthy that if he did not cease his comments she was going to

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report his remarks to a Company vice president; in response,
Mccarthy got a "horrid look on his face and he said 'I'll kill
you. '" (Kaytor Dep. 241-42.) " [S]cared to death" by this
response, Kaytor "went back to [her] office" and said to herself,
" 'Oh boy, I better never do that. '" (Id. at 242.)

The incident that finally led Kaytor to complain to
Electric Boat's higher management occurred in late April 2005, on
"Administrative Assistant's Day." It was a custom in the
Company's engineering department for supervisors to recognize that
day by giving their administrative assistants or secretaries
gifts. In the years prior to 2005, McCarthy had given Kaytor nice
flowers or gifts of $100 or $200. (See Kaytor Dep. 210, 221.) On
April 27, 2005, McCarthy gave Kaytor an unattractive potted bush
and a card that Kaytor believed were intended to be "derogatory
and sexual." (Id. at 225.) The handwritten message on the card
read, "I wish you the best and thank you for your help this past
year. The plant is/can be planted outside and I hope bring[s] you
pleasure in the years ahead. " (Kaytor Dep. Exhibit 37 (emphases
in original) .) Kaytor found the card offensive because of the
nature of the plant (see Kaytor Dep. 221): The plant was a
variety of Salix commonly known as a pussy willow.

B. The Company's Response to Kaytor's Protest

" [A] fter the pussy willow incident, " Kaytor "couldn't take
any more. " (Kaytor Dep. 185.) She complained to the Company's
ombudsperson; and, within a week or two of the incident (a delay

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"because [she] was scared" (id. at 186) ), she complained about
McCarthy to HR. The pussy willow bush was apparently the talk of
the office. Kaytor testified that an HR employee, Cheryl Stergio,
told her that "people were talking about it throughout the plant"
(id. at 280), and that Stergio said "coming in to work, " and just
walking down the hall, "she could hear people talking about what
Mccarthy did to [Kaytor], the pussy willow bush and the flat ass
comment" (id. at 280-81) . Bryan Burdick, a staff engineer who had
been away when Kaytor received the plant, heard "talk on the
floor" about it "from about a half dozen people" when he
returned. (EB Report at 7.)

HR conducted an investigation of Kaytor's complaints,
interviewing Kaytor, Mccarthy, Burdick, several of Kaytor's
coworkers, and Al Crogle, a supervisor who reported to McCarthy.
The EB Report described, inter alia, statements from coworker
Linda Christie who had heard McCarthy make the "flat ass" comment.
(EB Report at 4.) Christie said that McCarthy used crass language
with everyone, regardless of gender. She said that on one
occasion she had gone to McCarthy's office to ask "where Sharon
Kaytor was," and "McCarthy replied 'she's spreading her legs for
the doctor. "" (Id. at 5.) When asked about the pussy willow bush
incident, Christie said "she believed that McCarthy intended to
annoy Kaytor with the plant by its underlying sexual connotation.
She added, 'However, if anyone else got the same plant as a gift I
don't think that it would have had the same effect of underlying

sexual connotation. " "
(Id. (emphasis in Report) .)
Another

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coworker, Sheryl Williams, said she had seen the bush and found it
to be "a poor specimen"; in ordinary circumstances, she would have
considered it simply "'a poor choice of a gift. '" (Id. at 7
(emphasis in Report) .) However, Williams, said that Kaytor had
"'relayed to [her] incidents where Dan had harassed [Kaytor]. If
those stories are true, [Williams] could see the plant having a
sexual connotation based on the name
(Id. (emphasis in
Report) . )

Mccarthy, in his HR interview, ascribed Kaytor's
accusations to her displeasure with him because she believed he
had not supported her in a workers compensation claim. (See EB
Report at 9.) He admitted making a "flat ass" comment in a
conversation with Kaytor in his office, but he stated that he had
simply been repeating a doctor's remark that Kaytor herself had
relayed to McCarthy several times (EB Report at 9-10) -- remarks and
conversations that Kaytor " [a]bsolutely" denied had ever occurred
(Kaytor Dep. 182) .
McCarthy also stated that Kaytor had
initiated conversations with him about her breast size and sex
life (see EB Report at 11) -- an assertion that Kaytor testified
was entirely "untrue" (Kaytor Dep. 283-84) .

When "asked specific questions regarding the allegations
made by Kaytor" (EB Report at 9), McCarthy's responses were, inter
alia, that he "'d [id] not recall'" telling Kaytor he wanted to
choke her; that he " 'ha [d] no recollection'" of saying he wanted
to see Kaytor in her coffin or that he wanted to come to her home
and choke her; that he had "no recollection" of picking up a scarf

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from Kaytor's desk and smelling it; and that he had "no
recollection" of making a comment as to Kaytor's "spreading her
legs for the doctor." (Id. at 10 (emphases in Report) .)

On May 16, 2005, the day after the HR investigation was
begun, Kaytor was transferred away from Mccarthy; within an hour
of her first interview with HR, the Company packed up her
belongings and moved her to an office down the hall (see Kaytor
Dep. 289). She was reassigned to work for Crogle, a supervisor
with whom she had previously had a friendly relationship (see,
e.g., id. at 296, 300) ; Crogle was supervised by McCarthy. On the
day after that reassignment, HR offered Kaytor the opportunity to
be retransferred to her old job with McCarthy. (See id. at 290,
294). She considered it but eventually declined. (See id. at
294). She was not offered an opportunity to work in a different
Company building or to work for anyone who was not supervised by
the manager who had harassed her. (See id. at 288-89.)

Kaytor testified that although her compensation remained
the same after her transfer to Crogle, she was treated poorly.
She was placed in an office in which paint chips containing lead
were underfoot and regularly fell on her desk; and on a day when
Electric Boat announced a rule that anyone using certain internet
websites could be fired, the Company gave her a computer that was
loaded with prohibited programs that she could access accidentally
and be fired. (See id. at 299, 313-14.) Kaytor testified that
although Crogle treated her normally at first, after a couple of
months "retaliation started." (Id. at 297.) Her work hours were

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changed (see id. at 299-300) ; and whereas under McCarthy she had
been responsible for ordering supplies for the entire engineering
department (see id. at 14, 16-17), when she was transferred to
work for Crogle that job was taken away from her (see id. at 14,
298-99). Under Crogle, she testified, "I sat there with no work
to do." (Id. at 299.) Yet, "continually on a daily basis, " she
was "harassed by Al Crogle" who would "scream and yell" at her for
the "whole department" to hear. (Id. at 299, 301.) Kaytor
testified that " [t]here was some harassment from some coworkers"
(id. at 300), and she "was ostracized" (id. at 299) .

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## C. The Present Litigation

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illness.

After filing administrative charges with the Connecticut
Commission on Human Rights and the United States Equal Employment
Opportunity Commission ( "EEOC"), Kaytor commenced the present
action in December 2006, alleging gender discrimination in
violation of Title VII and the Connecticut Fair Employment
Practices Act, Conn. Gen. Stat. § 46a-60 et seq. The original
complaint alleged that Kaytor had been subjected to a hostile work
environment based on McCarthy's ongoing and continuous sexual
harassment by means of his insulting and degrading remarks and
actions and his threats to kill Kaytor; that after complaining to
the Company about Mccarthy, Kaytor was subjected to a pattern of
continuous retaliation for having complained; and that these
events had caused Kaytor severe emotional distress and physical

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In February 2007, Kaytor filed an amended complaint
repeating the above allegations and adding that in January 2007,
i.e., shortly after the December 2006 commencement of the present
action, Electric Boat terminated Kaytor's employment in
retaliation for her filing the action. It alleged that Electric
Boat began its retaliation on January 17 by ordering Kaytor to
undergo a psychiatric examination; and although Kaytor had
agreed -- under protest -- to schedule such an examination, Electric
Boat terminated her employment eight days later on the ground that
she had not done so. Kaytor also claimed that Electric Boat's
ultimatum that she undergo the psychiatric examination constituted
an intentional infliction of emotional distress in violation of
state law.

Following a period of discovery, Electric Boat moved for
summary judgment dismissing the complaint, arguing principally
that the incidents of which Kaytor complained did not create
conditions so severe or pervasive as to permit an inference of a
hostile work environment. It also argued that its instruction
that Kaytor submit to a psychiatric examination was not based on
any goal of retaliation but rather was based on indications,
supported by medical evidence, that she may have been suffering
from paranoia (see Part II.C.1. below) .

In a Memorandum of Decision and Order dated March 31,

840669 (D. Conn. Mar. 31, 2009) ("Kaytor I"), the district court
granted summary judgment to Electric Boat, dismissing the

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complaint in its entirety. The court found that Kaytor had not
adduced evidence sufficient to establish a prima facie case of
hostile work environment because she had alleged only "a few
incidents that spanned a number of years. She herself discounts
some of these incidents as not being offensive or sexual in
nature." Kaytor I, 2009 WL 840669, at *8. The court found that
the alleged incidents that were explicitly sexual "were episodic
over a number of years, and are not sufficiently severe to
overcome their lack of pervasiveness." Id. The court found that

Mccarthy's gift of a pussy willow was not necessarily
sexual in nature at all, and the Court sees no
evidence that it was meant to be so. The letter
given with the pussy willow contains no sexual
references, and the fact that the plant's name is
similar to a slang term for female genitalia is not
sufficient to demonstrate that the gift was, in fact,
sexual in nature.

Id.

The court found that Mccarthy's threats to choke or kill
Kaytor did not contribute to her hostile work environment claim.
Although it had noted that Kaytor maintained that "Mccarthy 'at
least six times' from 2004 to 2005 told her that he wanted to
choke her, and on six more occasions, that he wanted to see her in
a coffin, " Kaytor I, 2009 WL 840669, at *3, the court stated that

[t]here is a question as to how many times Mccarthy
did this; the Plaintiff could only recall one
instance where he threatened to "kill" her and one
instance where he threatened to "choke" her. In the
Court's view, the Plaintiff has not offered any facts
from which a reasonable jury could infer that these
threats were made because of the Plaintiff's sex.

Id. at *9. It concluded that, absent those threats of violence,
"the conduct in question was not pervasive enough to alter the

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plaintiff[']s working environment, nor were the alleged
incidents, when taken individually or viewed cumulatively, severe
Id.
3 enough to alter the plaintiff[']s working environment. "

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The court also dismissed the complaint insofar as it
asserted a claim under Connecticut law for intentional infliction
of emotional distress. It noted that, to establish such a claim,
a plaintiff must show that a defendant's actions "were atrocious
and utterly intolerable in a civilized community, " id. at *12; and
it concluded that Kaytor had not met that standard, see id.

As to Kaytor's claims of retaliation, the court found that
because of the temporal proximity between her filing of the
present lawsuit and the Company's termination of her employment,
Kaytor had established a prima facie case with respect to the
claim that her termination was retaliatory. See id. at *10.
However, the court found that Electric Boat had proffered a
nondiscriminatory explanation for her termination, i.e., Kaytor's
refusal to submit to a psychiatric examination after exhibiting
signs that she might not be fit for duty, see id. Noting the
medical testimony proffered by Electric Boat, the court concluded
that Kaytor had not come forward with any evidence that would
permit a "reasonable jury in this case [to] find that the referral
for [a psychiatric examination], and the Plaintiff's subsequent
termination for refusing to go to [it], were pretext for unlawful
retaliation." Id. at *11.

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In dismissing the complaint, the district court did not
discuss Kaytor's assertions that she had suffered retaliation in
the conditions of her employment before she was terminated. The
court stated that "the only protected activity argued" was the
December 2006 filing of the lawsuit and that it "consider [ed] all
arguments based on any other potential protected activities to be
abandoned." Id. at *10 n.3. In a subsequent Memorandum of
Decision and Order dated June 5, 2009, denying a motion by Kaytor
for reconsideration, see Kaytor v. Electric Boat Corp., No.
3: 06CV01953, 2009 WL 1580989 (D. Conn. June 5, 2009)
("Kaytor II"), the court stated that even if not abandoned,
Kaytor's claim that she suffered retaliation prior to the
termination of her employment was properly dismissed. It noted
that the transfer of Kaytor from Mccarthy to Crogle was plainly
intended "to separate [Kaytor] from McCarthy while the
investigation of [her] harassment claims w[as] pending, "
Kaytor II, 2009 WL 1580989, at *4, and that " [d]espite [Kaytor's]
personal feeling that she was transferred to a less desirable
position, or [her] personal feeling that she was 'isolated, ' she
has presented no evidence that a reasonable employee would hold
the same beliefs," id. at *4 n.5.

### II. DISCUSSION

On this appeal, Kaytor contends that there are genuine
issues of material fact to be tried as to each of her claims.

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Electric Boat argues that the district court correctly determined
as a matter of law that Mccarthy's alleged statements and conduct
did not create an actionable hostile work environment and that
there was no triable issue of fact as to the claimed retaliation.

The EEOC has filed a brief as amicus curiae, taking no
position as to most of Kaytor's claims but urging that we reverse
the dismissal of the Title VII hostile work environment claim.
The EEOC argues principally that to establish such a claim, a
plaintiff need show only that the conditions were either pervasive
or severe, not both; and that, even if the sexual harassment of an
employee is not pervasive, the threat to kill such a person may
constitute the requisite severity.

For the reasons that follow, we conclude that summary
judgment was inappropriate with respect to Kaytor's claims of
hostile work environment and her claims of pre-termination
retaliation following her protest of the pussy willow bush
incident, and we remand for trial with respect to those claims.
We affirm the dismissals of Kaytor's claims of retaliatory
termination and intentional infliction of emotional distress.

#### A. Summary Judgment Principles

A motion for summary judgment may properly be granted -- and
the grant of summary judgment may properly be affirmed -- only where
there is no genuine issue of material fact to be tried, and the
facts as to which there is no such issue warrant the entry of
judgment for the moving party as a matter of law. See Fed. R.

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Civ. P. 56 (c) (2) ; see, e.q., Jasco Tools, Inc. v. Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009) ("Jasco Tools"). The function of
the district court in considering the motion for summary judgment
is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute
exists. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) ("Liberty Lobby") .

In determining whether the moving party is entitled to
judgment as a matter of law, see generally id. at 250-51 (same
standard governs summary judgment and judgment as a matter of law
during or after trial) ; Jasco Tools, 574 F.3d at 151-52 (same), or
whether instead there is sufficient evidence in the opposing
party's favor to create a genuine issue of material fact to be
tried, the district court may not properly consider the record in
piecemeal fashion, trusting innocent explanations for individual
strands of evidence; rather, it must "review all of the evidence
in the record, " Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 150 (2000). This is especially so in considering claims
of hostile work environment, see Part II.B. below. And in
reviewing all of the evidence to determine whether judgment as a
matter of law is appropriate, "the court must draw all reasonable
inferences in favor of the nonmoving party," Reeves, 530 U.S. at
150 (emphasis added), "'even though contrary inferences might
reasonably be drawn, '" Jasco Tools, 574 F.3d at 152 (quoting
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,
Summary judgment is inappropriate when the

26 696 (1962) ) .

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admissible materials in the record "'make it arguable'" that the
claim has merit, see, e.g., Jasco Tools, 574 F.3d at 151 (quoting
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d
Cir. 1980)), for the court in considering such a motion " 'must
disregard all evidence favorable to the moving party that the jury
is not required to believe, '" Jasco Tools, 574 F.3d at 152
(quoting, with emphasis, Reeves, 530 U.S. at 151) .

In reviewing the evidence and the inferences that may
reasonably be drawn, the court "may not make credibility
determinations or weigh the evidence.
'Credibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge. '" Reeves, 530 U.S. at 150 (quoting Liberty Lobby, 477
U.S. at 255 (emphases ours) ); see, e.g., Agosto v. INS, 436 U.S.
748, 756 (1978) ("a district court generally cannot grant summary
judgment based on its assessment of the credibility of the
evidence presented"). "Where an issue as to a material fact
cannot be resolved without observation of the demeanor of
witnesses in order to evaluate their credibility, summary judgment
is not appropriate." Fed. R. Civ. P. 56 (e) Advisory Committee
Note (1963) .

In sum, summary judgment is proper only when, with all
permissible inferences and credibility questions resolved in favor
of the party against whom judgment is sought, "there can be but
one reasonable conclusion as to the verdict," Liberty Lobby, 477
U.S. at 250, i.e., "it is quite clear what the truth is." Poller

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( "Cruz") .

v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962)
(internal quotation marks omitted) .

We review the district court's grant of summary judgment
de novo, applying the same standards that govern the district

court's consideration of the

motion.

See,

e.g.,

Aulicino

New

York City Department of Homeless

Services,

580

F.3d

73,

(2d

Cir. 2009) ; Dillon v. Morano,

497

F.3d

247,

251

(2d

Cir.

2007)

;

Cruz v. Coach Stores, Inc.,

202

F. 3d

560,

567

(2d

Cir.

2000)

## B. The Title VII Hostile Work Environment Claim

Title VII prohibits "discriminat [ion] against any
individual with respect to his [or her] compensation, terms,
conditions, or privileges of employment, because of, " inter alia,
"such individual's . . . sex." 42 U.S.C. § 2000e-2 (a) (1) .

[T]his language "is not limited to 'economic' or
'tangible' discrimination. The phrase 'terms,
conditions, or privileges of employment' evinces a
congressional intent 'to strike at the entire
spectrum of disparate treatment of men and women' in
employment," which includes requiring people to work
in a discriminatorily hostile or abusive environment.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)
("Meritor") ) .

Title VII "does not set forth 'a general civility code
for the American workplace. '" Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 80 (1998) ). But " [w]hen the

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workplace is permeated with 'discriminatory intimidation,
ridicule, and insult'
that is 'sufficiently severe or

pervasive to alter the conditions of the victim's employment and

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create an abusive working environment, '
Title VII is
violated, " Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at
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65, 67 (emphasis ours) ) -- so long as there is a basis for imputing
the conduct that created the hostile environment to the employer,
see, e.q., Perry v. Ethan Allen, Inc., 115 F.3d 143, 152 (2d Cir.
1997) ("Perry") ; Karibian v. Columbia University, 14 F.3d 773, 779
(2d Cir. ), cert. denied, 512 U.S. 1213 (1994) ; Kotcher v. Rosa &
Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992) .

Absent certain defenses that are not at issue on this appeal, an
employer is presumed to be responsible where the perpetrator of
the harassment was the plaintiff's supervisor. See, e. g.,
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) ;
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) ; Perry,
115 F.3d at 152-53.

As to "whether an environment is 'hostile' or 'abusive, '"
Harris stated that that matter "can be determined only by looking
at all the circumstances." 510 U.S. at 23 (emphasis added) .

These may include the frequency of the discriminatory
conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes
with an employee's work performance. The effect on
the employee's psychological well-being is, of
course, relevant to determining whether the plaintiff
actually found the environment abusive. But while
psychological harm, like any other relevant factor,
may be taken into account, no single factor is
required.

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Id. (emphases added). Because the analysis of severity and
pervasiveness looks to the totality of the circumstances, "the
crucial inquiry focuses on the nature of the workplace environment
as a whole," and "a plaintiff who herself experiences
discriminatory harassment need not be the target of other
instances of hostility in order for those incidents to support her

claim." Cruz, 202 F.3d at 570 (emphases added) ; see, e.q.,
Perry, 115 F.3d at 150-51.

Harris also established that both an objective and a
subjective standard must be met to prove the existence of a
hostile work environment violative of Title VII:

Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work
environment -- an environment that a reasonable person
would find hostile or abusive -- is beyond Title VII's
purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive,
the conduct has not actually altered the conditions
of the victim's employment, and there is no Title VII
violation.

510 U.S. at 21-22.

Isolated incidents generally will not suffice to establish
a hostile work environment unless they are extraordinarily severe.
See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.
2000) ("Howley") ; Quinn v. Green Tree Credit Corp., 159 F.3d 759,
768 (2d Cir. 1998) ; Torres v. Pisano, 116 F.3d 625, 631 n.4 (2d
Cir. 1997) ("Of course, even a single episode of harassment, if
severe enough, can establish a hostile work environment") .
However, even if overtly gender-based discriminatory conduct is
merely episodic and not itself severe, the addition of "physically

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threatening . . . behavior" may cause "offensive or boorish
conduct" to cross the line into "actionable sexual harassment."
Cruz, 202 F.3d at 571.

It is axiomatic that to prevail on a claim of hostile work
environment based on gender discrimination, the plaintiff must
establish that the abuse was based on her gender. See, e.q.,
Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001) ( "Raniola") ;
Howley, 217 F.3d at 156. The " 'harassing conduct need not be
motivated by sexual desire, '" however, so long as it was motivated
by gender. Raniola, 243 F.3d at 617 (quoting Oncale, 523 U.S. at
80 (emphasis ours) ) ; see, e.q., Howley, 217 F.3d at 156. Further,

[f]acially neutral incidents may be included
among the "totality of the circumstances" that courts
consider in any hostile work environment claim, so
long as a reasonable fact-finder could conclude that
they were, in fact, based on sex. But this requires
some circumstantial or other basis for inferring that
incidents sex-neutral on their face were in fact
discriminatory.

Alfano v. Costello, 294 F. 3d 365, 378 (2d Cir. 2002) .
Circumstantial evidence that facially sex-neutral incidents were
part of a pattern of discrimination on the basis of gender may
consist of evidence that "the same individual" engaged in
"multiple acts of harassment, some overtly sexual and some not. "
Id. at 375. In Raniola, for example, we concluded that, given
proof of instances of overt gender hostility by the supervisor of
the female plaintiff, a rational juror could permissibly infer
that his entire alleged pattern of harassment against her was
motivated by her gender, even though some of the harassment was
not facially sex-based. See 243 F.3d at 621-23. Thus, the

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relevant circumstances in Raniola included not only offensive sex-
based remarks, but also, inter alia, one dire facially gender-
neutral threat of physical harm by the supervisor who had made
those remarks. See id. at 621. In Fitzgerald v. Henderson, 251
F.3d 345 (2d Cir. 2001), cert. denied, 536 U.S. 922 (2002), we
held that a claim of gender-based hostile work environment (as
well as an "embedded" claim of retaliation) may be premised on
evidence that a supervisor heaped abuse on the plaintiff because
she had rejected his sexual advances. See 251 F.3d at 361; see
also Howley, 217 F.3d at 156 (factfinder would be permitted to
conclude that even facially gender-neutral harassment of female
firefighter by a coworker was motivated by sex given that that
coworker had previously engaged in explicitly gender-related
harassment). So long as there is some evidentiary basis for
inferring that facially sex-neutral incidents were motivated by
the plaintiff's gender, the ultimate question of whether such
abuse was "because of" the plaintiff's gender, 42 U.S.C.
§ 2000e-2 (a) (1), is a question of fact for the factfinder. See,
e.q., Raniola, 243 F.3d at 623; Howley, 217 F.3d at 156; Cruz, 202
F.3d at 571.

In sum, the question of whether considerations of the
plaintiff's sex "caused the conduct at issue often requires an
assessment of individuals' motivations and state of mind, " Brown
v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001), and "an invidious
discriminatory purpose may often be inferred from the totality of
the relevant facts, " Washington v. Davis, 426 U.S. 229, 242

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(1976) . Thus, especially in the context of a claim of sexual
harassment, where state of mind and intent are at issue, "the
court should not view the record in piecemeal fashion, "
Fitzgerald v. Henderson, 251 F.3d at 360, and " [s] ummary judgment
should be used 'sparingly, '" Distasio v. Perkin Elmer Corp., 157
F.3d 55, 61 (2d Cir. 1998) .

In the present case, in light of the above substantive and
procedural principles, we have several difficulties with the
district court's summary dismissal of Kaytor's hostile work
environment claim. First, in assessing the evidence as to whether
there was an abusive environment resulting from discrimination
based on gender, the court indicated that it was disregarding
some evidence that would doubtless be admissible at a trial. For
example, the fact that some of the Mccarthy conduct and comments
described by Kaytor were not directed at Kaytor or were not
"sexual in nature, " Kaytor I, 2009 WL 840669, at *8 -- such as his
making fun of other women and discussing their bodies -- does not
mean that that conduct and those comments were irrelevant. Even
if they did not evince sexual desire, a factfinder would be
entitled to take them into consideration in assessing the work
environment and in determining whether the abuse to which Mccarthy
subjected Kaytor was motivated by her gender.

More importantly, the court should not have excluded from
consideration Kaytor's testimony as to McCarthy's stated desires
to choke her, to see her in a coffin, and to kill her. According
to Kaytor's testimony, which must be credited on a motion for

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summary judgment against her, the threats were uttered by one who
had "had designs on" Kaytor and who was miffed that she would not
"fall for his advances" (Kaytor Dep. 176, 255). A rational juror
could permissibly infer that Mccarthy's harsh treatment of Kaytor
was the result of his spurned advances.

A rational juror could also infer from Mccarthy's overtly
sexual comments that the facially gender-neutral threats he
directed at Kaytor were, in fact, "because of" her sex. See
42 U.S.C. § 2000e-2 (a) (1). In Alfano v. Costello, there were
four incidents that had overtly sexual overtones but were
perpetrated by someone other than the defendant; we held that
those incidents provided no basis for inferring that wholly
different facially sex-neutral incidents involving the defendant
were part of a campaign by the defendant to harass the plaintiff
on the basis of her sex. See 294 F.3d at 370, 378. Here, unlike
Alfano, a rational juror could permissibly infer from Mccarthy's
sexual comments that his physical threats were also motivated by
Kaytor's sex.

Electric Boat suggests that Mccarthy's threats to choke
Kaytor were in fact gender-neutral because "Mccarthy allegedly
made such comments to at least one other male employee . . . . "
(Electric Boat brief on appeal at 49.) This suggestion provides
no support for a judgment in favor of Electric Boat for several
reasons. For one thing, the only such "alleg [ation] " we have seen
in the record is the EB Report's description of a statement by
McCarthy himself. And although Mccarthy told HR that he had

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jokingly told Crogle he would like to choke Crogle (see EB Report
at 10, 15), no such conversation about choking is reflected in the
Report's description of the HR interview with Crogle, who said
that when Mccarthy was displeased with Crogle's work, McCarthy
would jokingly threaten to "fire[] him" (id. at 6) .

In contrast, the Report notes that Linda Christie stated
in her HR interview that, although she had not taken it seriously,
McCarthy had once told her he would like to choke her (see EB
Report at 5). Thus, the record permits an inference that
McCarthy's threats to choke were directed only at women, not at
men. More importantly,

the inquiry into whether ill treatment was actually
sex-based discrimination cannot be short-circuited by
the mere fact that both men and women are
involved. . . . It would be exceedingly perverse if
a male [supervisor] could buy . . . his company
immunity from Title VII liability by taking care to
harass sexually an occasional male worker, though his
preferred targets were female.

Brown v. Henderson, 257 F.3d at 254 (internal quotation marks
omitted) .

Finally, while we in no way suggest that threats of
physical harm could ever be justified by evaluations of an
employee's work performance, we note that we have seen in this
record no evidence that Mccarthy's statements to Kaytor that he
would like to see her in a coffin, kill her, or choke her were
related to any deficiencies in her work performance. To the
contrary, the record suggests that Mccarthy's desire to choke
Kaytor was distinctly not work-related, for McCarthy told Kaytor
he "'wish [ed she] were retired'" so that he "'could come to [her]

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home and choke [her] '" (Kaytor Dep. 188 (emphases added) ). In
sum, McCarthy's threats and statements wishing Kaytor physical
harm are material to her claim that she was subjected to a gender-
based hostile work environment.

Second, the district court impugned Kaytor's credibility
as to the frequency of Mccarthy's threats and thereby
inappropriately assumed the role of factfinder. While noting that
Kaytor testified that McCarthy had threatened her repeatedly, the
court stated that "[t]here is a question as to how many times
McCarthy did this, " because Kaytor "could only recall one instance
where he threatened to 'kill' her and one instance where he
threatened to 'choke' her." Kaytor I, 2009 WL 840669, at *9
(emphasis added) . Although Kaytor at her deposition could not
recall dates or details of the other instances, her testimony
that in fact there were many such instances would be admissible at
trial. Electric Boat would of course be entitled to cross-examine
her as to details, and Kaytor's ability or inability to recall
details would doubtless affect the weight that would be given to
her testimony. But the weighing of the evidence is a matter for
the factfinder at trial, not for a court considering a motion for
summary judgment, and the district court was not entitled to
question the credibility of Kaytor's testimony that there were
many such instances. Thus, the "question" highlighted by the
court was not, on the motion for summary judgment, a proper
consideration.

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Third, the district court, in stating that Kaytor had
alleged only "a few incidents that spanned a number of years, " id.
at *8 -- an expansive temporal impression that Electric Boat
attempts to enhance by describing the period complained of as
2004-2006 (see Electric Boat brief on appeal at 9, 48) -- did not
view the evidence in the light most favorable to Kaytor, either
with respect to the relevant period or the number of incidents.
As to the relevant period, Kaytor testified that the bad years
were 2004 and 2005 (see, e.g., Kaytor Dep. 187), and she has not
alleged any harassment by Mccarthy -- nor any gender-based (as
contrasted with retaliatory) harassment by anyone else at the
Company -- since Mccarthy's gift of the pussy willow bush on April
27, 2005. Accordingly, at its longest, the period during which
Kaytor complained of a gender-based hostile work environment was
not several years, but rather 16 months. As to the number of
incidents, the court was required, as indicated above, to take
into consideration Mccarthy's physical threats to Kaytor, and it
had noted that Mccarthy said he wanted to choke Kaytor on at least
six occasions, told her he would like to see her in her coffin on
six other occasions, and told her he wanted to kill her on three
or four occasions. Kaytor I, 2009 WL 840669, at *3. In addition
to those 15 or more incidents, Kaytor testified that Mccarthy made
complimentary, but unwelcome, comments about the way she smelled;
that he approached her closely enough to smell her hair, making
her uncomfortable; and that she caught him leering at her body
" [m] any times" (Kaytor Dep. 245). And, of course there is the

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evidence described above as to the several incidents in which
McCarthy made explicit or implicit references to Kaytor's "ass" or
genitalia and gave her the pussy willow bush. If a jury were to
view the evidence in the light most favorable to Kaytor, it could
easily conclude, permissibly, that there occurred a plethora of
incidents in the relevant 16-month period and that the abuse was
severe and/or pervasive.

We note that the district court pointed out that Kaytor,
in her deposition, stated at times that Mccarthy's threats were
"out of character" (see Kaytor Dep. 183, 241), and the court
inferred that that phrase "indicat [ed] that they were not
pervasive, " Kaytor I, 2009 WL 840669, at *9. This inference as to
what Kaytor meant also failed to view the record in the light most
favorable to Kaytor. We do not see that Kaytor was ever asked at
her deposition precisely what she meant when she said that
McCarthy was acting "out of character." Having testified that she
and McCarthy had an amicable, businesslike relationship during the
early years of their working together, i.e., 1998-2003, Kaytor
could well have meant that Mccarthy's harassing behavior from 2004
through April 2005 was simply inconsistent with the way he had
behaved for the prior five or six years. The court's inference
that by "out of character" Kaytor instead meant sporadic or "not
pervasive" also seems unwarranted in light of her testimony that
one of Mccarthy's threats to kill her was made " [w]hen he was
5 acting out of character, . . . and . . . was one of the many
harassing incidents" (Kaytor Dep. 241), and in light of her use of

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that phrase with respect to Crogle, stating that " [f]or two years
[Crogle] acted out of character" (id. at 304 (emphasis added) ) .

Finally, the district court's analysis of the pussy willow
gift plainly viewed that incident in isolation. The court stated
that

McCarthy's gift of a pussy willow was not necessarily
sexual in nature at all, and the Court sees no
evidence that it was meant to be so. The letter
given with the pussy willow contains no sexual
references, and the fact that the plant's name is
similar to a slang term for female genitalia is not
sufficient to demonstrate that the gift was, in fact,
sexual in nature.

Kaytor I, 2009 WL 840669, at *8 (emphases added). Preliminarily,
we note that although it may well be that if there were no history
of sexual harassment or any gender-based comments the gift of a
pussy willow bush would carry no sexual implications, the matter
of whether the plant "necessarily" had a sexual connotation was
not the proper inquiry on a motion for summary judgment by the
defendant. More importantly, the court was required to view the
gift of the pussy willow bush to Kaytor in the context of the
other evidence in this case. That evidence, taken in the light
most favorable to Kaytor, showed, inter alia, that Mccarthy
frequently made comments about women's bodies; that Kaytor many
times caught Mccarthy leering at her and staring at her body; and
that Mccarthy had already made two other blatant references to
Kaytor's genitalia: stating on one occasion that Kaytor was about
to spread her legs for her doctor; and on another, when Kaytor was
going to see her gynecologist, that she was going where every man
wanted to be. In light of this evidence, the district court could

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not properly decide as a matter of law that the gift to Kaytor of
a pussy willow bush neither had nor was intended to have any
sexual connotations.

We conclude that the totality of the evidence, taken in
the light most favorable to Kaytor and without questioning her
credibility or drawing any adverse inference that a jury would not
be required to draw, was sufficient to satisfy the Harris
requirements that Kaytor show, both subjectively and objectively,
that because of her gender, she was subjected to an abusive
environment that altered her working conditions. Plainly Kaytor
subjectively viewed her working environment as abusive. She
repeatedly complained to her coworkers and to her union; she
complained to McCarthy himself. Although initially brushing off
his threats, Kaytor testified that the more McCarthy threatened,
the more nervous she became. She eventually told McCarthy that if
he did not stop harassing her, she would complain to higher
management; she was deterred from doing so because he got a
"horrid look on his face" and said that if she reported him he
would kill her. And despite being severely frightened by that
threat, when Mccarthy gave Kaytor the pussy willow bush she
complained to HR. On this record we see no basis for a conclusion
that Kaytor did not subjectively view her environment as abusive.

There was also ample evidence to permit an inference that
Kaytor's working environment was objectively abusive, i.e., that a
reasonable person would find it abusive. A rational juror may
permissibly find that a reasonable employee would view any serious

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death threat or threat of physical harm as sufficiently severe to
alter the employee's working conditions and create an abusive
environment. Even such threats communicated in jest, if made
repeatedly, may reasonably be viewed as sufficiently severe. In
this case, several of Kaytor's coworkers who heard Mccarthy's
statements that he wanted to choke Kaytor advised her that she
should be concerned. Indeed, Kaytor testified that her doctor
told her she should be concerned. (See Kaytor Dep. 188.)
Further, a rational juror could permissibly find that a reasonable
employee would have viewed Mccarthy's sexual comments and
actions -- including his frequent leering at Kaytor's body and his
calling attention to her private parts by, inter alia, "yell [ing]
out at the top of his lungs" for everyone to hear that Kaytor had
a "flat ass" (id. at 180), "yell [ing], " when Kaytor was heading
for the gynecologist, that she was "going where every man wants to
be" (id. at 207), and finally giving Kaytor a pussy willow bush,
which was the talk of the entire facility for days (see id. at
280-81; EB Report at 7) -- as creating an environment that was
abusive, humiliating, and materially worsening Kaytor's working
conditions.

In sum, we conclude that the evidence of record, when
properly viewed within the correct legal framework, was sufficient
to require the denial of Electric Boat's motion for summary
judgment on the hostile work environment claim.

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C. The Title VII Claims of Retaliation

Title VII also makes it unlawful for an employer to
discriminate against an employee "because he [or she] has opposed
any practice made an unlawful employment practice by this
subchapter, or because he [or she] has made a charge . . . in an
investigation, proceeding, or hearing under this subchapter." 42
U.S.C. § 2000e-3 (a). In order to establish a prima facie case of
retaliation, Kaytor must show (1) that she participated in an
activity protected by Title VII, (2) that her participation was
known to her employer, (3) that her employer thereafter subjected
her to a materially adverse employment action, and (4) that there
was a causal connection between the protected activity and the
adverse employment action. See, e.g., Patane v. Clark, 508 F.3d

106, 115 (2d Cir. 2007) ; Kessler v. Westchester County Department

of Social Services, 461 F.3d 199, 205-06 (2d Cir. 2006). Close
temporal proximity between the plaintiff's protected action and
the employer's adverse employment action may in itself be
sufficient to establish the requisite causal connection between a
protected activity and retaliatory action. See, e.g., Clark
County School District v. Breeden, 532 U.S. 268, 273 (2001); Cifra
v. General Electric Co., 252 F.3d 205, 217 (2d Cir. 2001) .

In adjudicating retaliation claims, courts follow the
familiar burden-shifting approach of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). See, e.g., Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). At the
summary judgment stage, if the plaintiff presents at least a

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minimal amount of evidence to support the elements of the claim,
the burden of production shifts to the defendant to proffer a
legitimate non-retaliatory reason for the adverse employment
action. See id. If the employer produces such evidence, the
employee must, in order to avoid summary judgment, point to
evidence sufficient to permit an inference that the employer's
proffered non-retaliatory reason is pretextual and that
8 retaliation was a "substantial reason for the adverse employment
action." Id.

Applying these principles, we reach different conclusions,
for the reasons below, as to the viability of Kaytor's claims that
she was subjected to retaliation (1) in the termination of her
employment and (2) in her pre-termination treatment.

### 1. The Claim of Retaliatory Termination

The principal retaliation claimed by Kaytor was Electric
Boat's termination of her employment a short time after she filed
the present action. As the district court noted, Kaytor presented
a prima facie case with respect to this claim. The court
concluded, however, as described below, that Electric Boat
presented evidence of a non-retaliatory reason for terminating
Kaytor's employment, namely that, with good reason, the Company
instructed Kaytor to have a psychiatric examination and warned
that she would be discharged if she refused; that Kaytor refused;
and that the Company fired her for insubordination.

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As described in Kaytor I, 2009 WL 840669, at \*5 -\* 6,
\*10 -\* 11, Electric Boat presented evidence that it maintained an
on-site medical facility at which it employed nurses, physician
assistants, and physicians, including Robert Hurley, M.D., a
board-certified physician who supervised the facility. One of Dr.
Hurley's principal responsibilities was to make determinations as
to employees' fitness to perform the functions of their jobs. Dr.
Hurley had training in interviewing, evaluating, and treating
common psychiatric disorders, and he often sought outside opinions
from specialists as part of his fitness-for-duty determinations.
(See Declaration of Dr. Robert Hurley dated March 26, 2008
("Hurley Decl. "), (1 4, 8, 10.)

On January 4, 2007, two days after Kaytor returned to work
from a medical leave of absence, some of the Electric Boat plant
facilities had to be evacuated because of an explosion in one of
the laboratories, and employees took refuge in the Company's
cafeteria. In the cafeteria, Kaytor experienced dizziness, and
she went to the medical facility. While there, she spoke at some
length with Dr. Hurley. During that conversation, Kaytor
expressed her views, inter alia, that there might be a hidden
camera in Dr. Hurley's office; that Electric Boat was spying on
her at work and in her home; that a therapeutic counselor she had
been consulting was conspiring with Electric Boat to spy on her;
and that Dr. Hurley was a part of the conspiracy against her.
(See Kaytor Dep. 334; Hurley Decl. [ 14.)

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This January 4, 2007 meeting with Kaytor caused Dr. Hurley
to question her fitness for duty. (See Hurley Decl. | 23.) He
also received from Kaytor a January 4, 2007 email in which she
stated, inter alia, that she had had to "release" all of her
doctors because they had been "targeted" by Dr. Hurley and
Electric Boat's legal department. (Hurley Decl. | 17 &
Exhibit 2.) And on the following day, Kaytor sent him another
email stating, inter alia, that Electric Boat was intentionally
trying to make her sick. (See Hurley Decl. | 20 & Exhibit 5.) In
addition, Dr. Hurley had previously received communications from
Kaytor that made him question her fitness for duty. These
included a September 2006 letter in which Kaytor complained that
Electric Boat was sending her to doctors who, in giving "skin
sensation test [s], " punctured her thighs and "le [ft] medical
equipment in [her] legs." (Hurley Decl. | 16 & Exhibit 1.)

Dr. Hurley, in light of these experiences, determined that
Kaytor should have an examination as to her psychiatric fitness
for duty. Electric Boat, to show that Dr. Hurley's concerns about
Kaytor's mental state were reasonable, also presented deposition
testimony from two professionals who were not employees of the
Company -- Kaytor's personal primary care physician and a licensed
counselor who had treated Kaytor -- who stated that they viewed
Kaytor as having paranoid ideation.

On or about January 8, 2007, Dr. Hurley scheduled Kaytor
for a January 11, 2007 independent medical examination with Dr.
Jay Lasser, a psychiatrist. However, Kaytor had a conflicting

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appointment and could not see Dr. Lasser on January 11. On
January 17, 2007, when Kaytor had not rescheduled, the Company
sent her a letter instructing her to reschedule by January 24,
2007. The letter stated that "Dr. Hurley will be unable to make a
determination on your return to work without further information
from Dr. Lasser, " and that if Kaytor did not reschedule, her
refusal would be considered an act of insubordination and her
employment would immediately be terminated. (Letter from Linda G.
Gastiger, Manager of Labor Relations, Electric Boat, to Sharon
Kaytor, dated January 17, 2007.)

Kaytor refused to schedule an appointment with Dr. Lasser.
She testified that although she received and understood this
letter, she did not believe the Company would terminate her
employment. (See Kaytor Dep. 343-44.) In accordance with its
warning, however, and in light of Kaytor's failure to schedule an
appointment with Dr. Lasser, the Company sent Kaytor a letter on
January 25, 2007, informing her that her employment was terminated
on account of her insubordination. (See Letter from Linda G.
Gastiger, Manager of Labor Relations, Electric Boat, to Sharon
Kaytor, dated January 25, 2007.)

The district court found Electric Boat's proffer ample to
show a non-retaliatory reason -- Kaytor's repeated exhibition of
signs of paranoia -- for ordering the independent psychiatric
examination and for terminating her employment because of her
refusal to do so, and we agree. The court also concluded that
Kaytor presented no evidence from which a rational juror could

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find that that proffered reason was pretext for retaliation.
Kaytor has not pointed us to evidence in the record sufficient to
warrant overturning that conclusion. Accordingly, we affirm the
dismissal of Kaytor's claim that the termination of her employment
violated Title VII for the reasons stated by the district court in
Kaytor I, 2009 WL 840669, at \*5 -\* 6, \*10 -\* 11.

### 2. The Claim of Pre-Termination Retaliation

Kaytor also claims that she was subjected to retaliation
prior to her termination, arguing, inter alia, that because she
complained to HR about Mccarthy's abuses, she was in effect
demoted by being reassigned to work for a person who reported to
Mccarthy, was placed in an office containing health hazards, was
repeatedly summoned by HR to meetings that she considered
superfluous, was given no work to do, was constantly yelled at by
her new supervisor, and was ostracized. We conclude that Kaytor's
deposition testimony was sufficient evidence to defeat the summary
judgment dismissal of this claim.

Preliminarily, we note that Electric Boat contends that
Kaytor has abandoned any contention "that her transfer to a
different supervisor after her complaints about McCarthy []
constituted unlawful retaliation, " because she "does not raise
this argument in her main brief" on appeal and had not raised it
in the district court until she moved for reconsideration
following the district court's grant of summary judgment.
(Electric Boat brief on appeal at 62 n. 7.) The district court,

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before rejecting this claim on its merits in Kaytor II, stated in
Kaytor I that Kaytor had abandoned any claim of pre-termination
retaliation, see Part I.C. above. We note, however, that in
responding to Electric Boat's motion for summary judgment, Kaytor
had argued, inter alia, that

she was subjected to adverse employment actions after
she reported sexual harassment by her supervisor
which amounted to a hostile work environment. She
had been the administrative assistant to the Manager
of a work unit . . . , but when she complained about
his use of obscenities and sexual comments, she was
transferred to work under Al Crogle, who supervised
one of six work groups reporting to McCarthy.

(Kaytor's Memorandum of Law in Opposition to Defendant Motion for
Summary Judgment at 2.) She referred to the Company's order that
she undergo a psychiatric examination as "further retaliation"
(id. (emphasis added) ) and argued that she had been "punished for
18 raising the issue of a hostile work environment" (id. at 7). And
in the retaliation section of her main brief on this appeal, she
20
refers not only to having been "forc [ed] . . . to submit to a
psychiatric exam, " but also to, inter alia, being "transferr [ed]

. . to a less prestigious work assignment, " and having "her job
responsibilities" "take [n] away." (Kaytor brief on appeal at 21.)
Although the arguments as to pre-termination retaliation are
sketchy, we are unpersuaded that the claim was abandoned.

Turning to the merits, we note that a lateral job transfer
that does not affect an employee's salary or title may be the
basis for a Title VII retaliation claim only if the reassignment
would have been viewed by a reasonable employee as being
materially adverse. See, e.q., Burlington Northern & Santa Fe Ry.

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Co. v. White, 548 U.S. at 68. The test is an objective one; an
employment action is materially adverse if it "well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination." Id. (internal quotation omitted) ; see, e. q.,
Kessler v. Westchester County Department of Social Services, 461
F.3d at 209.

Plainly the reassignment of Kaytor to Crogle was
occasioned by her complaint to HR about McCarthy. The HR
investigation was commenced on May 15, and Kaytor was reassigned
on May 16. And there is circumstantial evidence from which a
rational factfinder could infer that the Company itself viewed
Kaytor's new position as a demotion, given that, on the day after
it reassigned her to Crogle, it asked Kaytor if she wanted to
return to her old position. But the Company notes that Kaytor's
compensation was unchanged, and it plausibly argues that it was
merely reasonably separating Kaytor from a manager she claimed was
harassing her. The district court found this dispositive of the
merits of this claim in Kaytor II.

Yet the separation of Kaytor from Mccarthy does not
account for the ensuing treatment of Kaytor or resolve the
question of whether other conditions of her employment were so
adversely affected as to dissuade complaints of discrimination.
According to her deposition testimony, which must be credited on a
motion for summary judgment, Kaytor, after being reassigned, was
stripped of her former prestigious responsibility of ordering
supplies for the entire engineering department (see Kaytor Dep.

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14, 16-17) , was given "no work to do" (id. at 299), was screamed
at by Crogle "on a daily basis" for "th[e] whole department" to
hear (id. at 299, 301), and "was ostracized" (id. at 299) .

A jury, of course, need not credit Kaytor's testimony or
view the evidence in the light most favorable to her. But given
the summary judgment standards, we conclude that there are genuine
issues of fact to be tried as to whether the Company's treatment
of Kaytor, following her complaints about Mccarthy and prior to
the termination of her employment, "well might have dissuaded a
reasonable worker from making" those complaints.

### D. The State-Law Claims

Kaytor asserted her claims of gender discrimination and
retaliation not only under Title VII but also under the
Connecticut Fair Employment Practices Act, Conn. Gen. Stat.
§ 46a-60 et seq. ( "CFEPA") . CFEPA prohibits employers from, inter
alia, discriminating against an employee "because of the
individual's
sex," Conn. Gen Stat. § 46a-60 (a) (1), or
"because such person has opposed any discriminatory employment
practice, " id. § 46a-60 (a) (4). The analysis of discrimination and
retaliation claims under CFEPA is the same as under Title VII.
See, e.q., Craine v. Trinity College, 259 Conn. 625, 637 n.6, 791
A.2d 518, 531 n.6 (2002). Accordingly, for the reasons stated
above with respect to Kaytor's claims under Title VII, we affirm
the district court's dismissal of Kaytor's claim of retaliatory
termination in violation of CFEPA; but as to her CFEPA claims of

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hostile work environment and pre-termination retaliation, we
vacate the dismissal and remand for further proceedings.

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We affirm the district court's dismissal of Kaytor's claim
of intentional infliction of emotional distress substantially for
the reasons stated by the district court in Kaytor I, see 2009 WL
840669, at \*11 -\* 12.

# CONCLUSION

We have considered all of the parties' arguments in
support of their respective positions on this appeal and, except
as indicated above, have found them to be without merit. The
judgment of the district court is affirmed insofar as it dismissed
Kaytor's claims of retaliatory termination and intentional
infliction of emotional distress. The judgment is vacated insofar
as it dismissed her claims of hostile work environment and pre-
termination retaliation, and the matter is remanded for further
proceedings not inconsistent with this opinion.

Costs to plaintiff.

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Kaytor v. Electric Boat Corp. 1 2

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