12-1686-cv L Raspardo v. Carlone In the 1 United States Court of Appeals 2 For the Second Circuit 3 4 5…

12‐1686‐cv(L)
Raspardo v. Carlone
In the 1
United States Court of Appeals 2
For the Second Circuit 3
4
5
August Term, 2012 6
No. 12‐1686‐CV; 12‐1870‐CV 7
8
JENNIFER R ASPARDO, NEEDASABRINA R USSELL, G INA S PRING , 9
Plaintiffs‐Appellees, 10
11
v. 12
13
JOHN C ARLONE , WILLIAM G AGLIARDI, THOMAS S TECK, K ENNETH 14
PANETTA, A NTHONY PAVENTI , 15
Defendants‐Appellants, 16
17
18
C ITY OF NEW B RITAIN, NEW B RITAIN POLICE D EPARTMENT, 19
Defendants.* 20
21
Appeal from the United States District Court 22
for the District of Connecticut. 23
No. 9‐CV‐1321 ― Alvin W. Thompson, Judge. 24
25
26
A RGUED: JUNE 28, 2013 27
D ECIDED: O CTOBER 6, 2014 28
* The Clerk is requested to amend the caption to conform to the caption above.

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1
2
Before: WINTER, L YNCH , and DRONEY , Circuit Judges. 3
4
5
Appeal from orders of the United States District Court for the 6
District of Connecticut (Alvin W. Thompson, Judge) denying the 7
defendant police supervisors’ motions for summary judgment in the 8
plaintiffs’ employment discrimination action brought pursuant to 42 9
U.S.C. § 1983. We agree with the district court that Defendant 10
Carlone is not entitled to qualified immunity on Plaintiff Raspardo’s 11
hostile work environment claim. We conclude, however, that the 12
defendants are protected by qualified immunity in all other respects. 13
Accordingly, we AFFIRM in part, REVERSE in part, and 14
REMAND. 15
16
17
A LEXANDRIA L. VOCCIO , Howd 18
& Ludorf, LLC, Hartford, 19
Connecticut, for Defendant‐ 20
Appellant John Carlone. 21
22
JOSEPH W. MCQ UADE , Kainen, 23
Escalera & McHale, P.C., 24
Hartford, Connecticut, for 25
Defendant‐Appellant Anthony 26
Paventi. 27
IRENA J. U RBANIAK (Joseph E. 28
Skelly, Jr., on the brief), Office of 29
the Corporation Counsel, City of 30
New Britain, New Britain, 31

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Connecticut, for Defendants‐ 1
Appellants. 2
NORMAN A. PATTIS , The Pattis 3
Law Firm, LLC, Bethany, 4
Connecticut, for Plaintiffs‐ 5
Appellees. 6
7
8
D RONEY , Circuit Judge: 9
10
Plaintiffs‐Appellees (the “plaintiffs”), two former and one 11
current female New Britain police officers, brought suit in the 12
United States District Court for the District of Connecticut against 13
the City of New Britain, its police department, the police union, and 14
five individual police supervisors under Title VII of the Civil Rights 15
Act of 1964, 42 U.S.C. § 2000e‐2, 42 U.S.C. § 1983, and other federal 16
and state laws. The plaintiffs alleged that the five supervisors 17
discriminated against them on the basis of sex by creating a hostile 18
work environment and disparate treatment. Those individual 19
defendants moved for summary judgment on the basis of qualified 20
immunity, but the district court (Alvin W. Thompson, J.), denied 21

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their motions.1 The five individual defendants contend here, as they 1
did before the district court, that they are entitled to qualified 2
immunity. For the reasons that follow, we AFFIRM in part and 3
REVERSE in part the district court’s denial of the individual 4
defendants’ motions for summary judgment and REMAND for 5
proceedings consistent with this opinion. 6
BACKGROUND 7
8
I. The Plaintiffs’ Claims of Sexual Harassment and Disparate 9
Treatment 10
The New Britain Police Department (“NBPD” or the 11
“department”) hired Plaintiff Gina Spring on January 28, 2005, and 12
Plaintiffs Jennifer Raspardo and Needasabrina Russell in August of 13
1 Carlone filed his own motion for summary judgment, and the four other
individual defendants moved collectively for summary judgment in a separate
motion. The district court issued its orders deciding the two motions on the
same day, March, 29, 2012, but addressed Carlone’s motion for summary
judgment in one order and the remaining defendants’ motion in another order.
Carlone’s notice of appeal was docketed on April 24, 2012 on docket 12‐1686; the
other defendants’ notice of appeal was docketed on May 1, 2012 on docket 12‐
1870. Thus, although the district court docket number is identical for all of the
defendants, the defendants’ appeals generated two appellate dockets, which are
considered here in tandem.

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2006. Spring resigned from the NBPD on August 21, 2008, when she 1
accepted a position with the City of Torrington Police Department. 2
Russell went on Family and Medical Leave Act (“FMLA”) leave in 3
2008 and never returned to active duty, ultimately leaving the NBPD 4
permanently in 2010. Raspardo remained an NBPD officer at the 5
time of the filing of this suit. The five defendants in this appeal were 6
at all times supervisory police officers in the NBPD. 7
The plaintiffs’ claims against these defendants are best 8
understood by dividing them into two categories. First, each of the 9
plaintiffs alleges that John Carlone, a sergeant in the NBPD and their 10
direct supervisor, sexually harassed them through inappropriate 11
jokes, comments, and other behavior, including unwanted physical 12
contact with Raspardo and Russell, which created a hostile work 13
environment. Second, the plaintiffs allege that the four other 14
individual defendants created a hostile work environment and 15
subjected them to disparate treatment by making inappropriate 16

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comments, failing to adequately report or investigate Carlone’s 1
harassing behavior, and disciplining the plaintiffs more harshly for 2
violations of NBPD policies than male officers. Most of the events 3
occurred between early 2007 and early 2008. 4
We first address the claims against Carlone before turning to 5
the claims against the four other defendants. 6
A. The Plaintiffs’ Claims Regarding Carlone 7
1. Spring’s Claims 8
Spring complains principally of two incidents involving 9
Carlone. First, in 2007, Carlone and Spring responded separately to 10
a police call concerning a report of a naked woman. En route to the 11
scene, Carlone sent Spring a message via his mobile data terminal 12
(“MDT”)2 that she “would be perfect” for responding to the call. 13
Carlone then sent Spring additional messages, the substance of 14
which she could not recall at the time of discovery in this action, but 15
2 The MDT system allows officers to communicate with each other by way of text
messages sent through computer systems in their cars.

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that she also thought were inappropriate. Spring did not respond to 1
the messages and had no issues with Carlone at the scene. Second, 2
throughout her time under Carlone’s supervision, Carlone gave 3
Spring rides in his police cruiser while she was walking a beat. 4
During these occasions, Carlone asked questions about Spring’s 5
dating history, which she found uncomfortable, but she did not 6
otherwise perceive Carlone’s actions to be inappropriate. 7
While she was under Carlone’s supervision, Carlone would 8
also call Spring “Brown Eyes” and sing the song “Brown Eyed Girl”3 9
around her, but Spring did not interpret this as harassment at the 10
time. Spring now asserts that this nickname refers to “a female who 11
participates in anal sex.”4 Defs.’ App. 116. 12
Spring never observed Carlone act inappropriately with other 13
3 “Brown Eyed Girl” is a copyrighted romantic song by Van Morrison.
4 Spring also learned after Carlone was placed on leave that Defendant Paventi
had previously ordered Carlone not to give rides to female police officers in his
patrol vehicle, that Carlone had called her “Brown Eye” in an MDT message to
another male officer, and that Carlone had commented to others on the size of
her breasts and her sexual proficiency.

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female officers and does not allege that he had any physical contact 1
with her. Spring never made a formal administrative complaint 2
with the department. She filed a complaint with the Connecticut 3
Commission on Human Rights and Opportunities (“CHRO”) in 4
September of 2008, while Carlone was under investigation by the 5
NBPD for his misconduct. 6
2. Raspardo’s Claims 7
Raspardo details four principal incidents. First, in the 8
summer of 2007, after responding to a call, Carlone asked Raspardo 9
if she had plans for the night. She told him that she did not, and 10
Carlone asked her if she was “planning to go out drinking or have 11
sex with [her] boyfriend,” who was also an officer in the 12
department. Raspardo asked if she was free to go and left 13
immediately. Second, during that same summer, Carlone told 14
Raspardo that her uniform was too big and should be more form‐ 15
fitting. Third, at some point in 2007, Carlone approached Raspardo 16
in the roll call room where she was writing a report and attempted 17

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to massage her shoulders. When Raspardo shrugged her shoulders, 1
indicating that she was uncomfortable, Carlone stopped. Fourth, in 2
April of 2008, Raspardo approached the main police desk (where 3
Carlone was sitting) to sign a report. Carlone removed a magazine 4
from a drawer and showed Raspardo a picture of a woman wearing 5
law enforcement tactical gear; the woman’s clothing was tight, and 6
the photograph was focused on her buttocks. Carlone then passed 7
the photo around to other male officers and said that the woman’s 8
buttocks looked like Raspardo’s buttocks. Raspardo told Carlone 9
that his comment was not funny and left immediately. 10
Raspardo also represents that Carlone made inappropriate 11
comments to her while she was on field training from January to 12
April of 2007, but she fails to provide any specific details about these 13
comments. Finally, Raspardo also claims that Carlone “said things 14
[of a sexual nature] that made [Raspardo] uncomfortable and 15
angry.” Pl. Carlone’s App. 4. Specifically, Raspardo asserts that 16

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Carlone “made references to [her] body parts on at least over ten 1
occasions.” Id. at 5. In a statement provided during the NBPD 2
investigation of Carlone in May 2008, Raspardo explained: 3
Mainly Sergeant Carlone would make comments about 4
my butt. These comments were random. Sometimes it 5
was when we were one on one and sometimes it was 6
when people were passing by. These comments made me 7
feel disrespected, angry, and embarrassed. The comments 8
were inappropriate. I took these comments as sexual in 9
nature and not related to work in any way. I would say 10
things like “that isn’t funny” or just walk away. 11
12
Id. When questioned about Carlone’s comments at her deposition 13
and in interrogatories, Raspardo confirmed that Carlone made them 14
while he was her supervisor between 2007 and 2008, but she could 15
provide few additional details. 16
Raspardo does not allege that Carlone sexually propositioned 17
her, and she never observed Carlone sexually harass other female 18
officers. Although Russell stated that she heard Carlone make other 19
offensive comments about Raspardo’s body and her dating history, 20
Raspardo concedes that she learned of these additional comments 21

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only after Chief William Gagliardi (“Gagliardi”) placed Carlone on 1
administrative leave in May 2008 while the NBPD was investigating 2
him. Raspardo did not report Carlone’s conduct to the NBPD until 3
after he had been placed on leave. She did not lodge an internal 4
complaint with the NBPD concerning the alleged sexual harassment, 5
but she did complete a sworn statement during the department’s 6
investigation of Carlone in May of 2008, which included his 7
inappropriate conduct toward her. Raspardo ultimately filed a 8
complaint with the CHRO in September of 2008. 9
3. Russell’s Claims 10
Carlone did not move for summary judgment as to Russell’s 11
sexual harassment claim in the district court. Thus, Russell’s claim 12
against Carlone is not before us. Russell’s complaints regarding his 13
behavior have some relevance, however, with relation to her claims 14
against the other defendants, and are considered in that context. 15
Prior to joining the NBPD, Russell had a consensual sexual 16
relationship with Carlone, which ended when she learned that he 17

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was married. When Carlone learned that Russell had been hired by 1
the NBPD, he congratulated her and told her that she could now 2
“drive him around and he [could] do sexual things to [her].” Pl. 3
Carlone’s App. 31. Russell told Carlone that this would not happen. 4
Once Russell became an officer under Carlone’s supervision, 5
Carlone began making inappropriate and lewd comments regarding 6
her body and appearance. Carlone’s comments about Russell’s body 7
soon became much more frequent and sexually explicit. Carlone 8
then began reprimanding and disciplining Russell harshly for 9
alleged work performance issues. Carlone also started a rumor that 10
Russell was having a sexual relationship with another officer and 11
embarrassed her in front of other officers several times. In July of 12
2007, Carlone forced Russell to perform a sexual act. Carlone’s 13
sexual harassment of Russell and criticism of her performance as an 14
officer continued for some period after this. Russell reported her 15
allegations against Carlone in May 2008, but did not file a formal 16

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internal complaint with the department concerning any alleged 1
sexual harassment. Russell filed a complaint with the CHRO in 2
September of 2008. 3
4. Reports of Carlone’s Behavior and Department 4
Investigation 5
As mentioned above, Spring, Raspardo, and Russell did not 6
initially report sexually harassing conduct by Carlone to the NBPD. 7
In late April 2008, however, another officer, Armando Elias, 8
reported that Carlone made an inappropriate racial comment to him. 9
The department immediately began an investigation of Carlone’s 10
conduct toward his subordinate officers. During the course of this 11
investigation, on May 2, 2008, Russell reported Carlone’s 12
inappropriate behavior, including the July 2007 sexual act. As a 13
result, the department consulted with the State’s Attorney’s Office, 14
and a criminal investigation into Russell’s allegations commenced. 15
Defendant Gagliardi placed Carlone on administrative leave on May 16
6, 2008, pending the outcome of the investigation. Although 17

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Raspardo did not disclose any misconduct toward her when 1
authorities initially questioned her during the Carlone investigation, 2
she eventually reported her complaints soon after Russell came 3
forward with her allegations and made an official statement to the 4
department. Spring made several statements concerning Carlone 5
during the department’s investigation, and may have attempted to 6
file an internal complaint concerning the alleged sexual harassment, 7
but she ultimately never did so. None of the plaintiffs filed a formal 8
NBPD complaint utilizing the department’s internal reporting 9
procedure. 10
In June of 2008, Defendant Gagliardi demoted Carlone from 11
sergeant to patrol officer because he found that Carlone had “used 12
[his] supervisory position as Sergeant to engage in an inappropriate, 13
offensive and demeaning pattern of conduct against at least . . . two 14
officers who were working under [his] command.” Defs.’ App. 68 ¶ 15
84, 109 ¶ 84. Although criminal charges did not result from the 16

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investigation into Russell’s allegations, Gagliardi recommended that 1
Carlone be terminated in October of 2008. Carlone retired to avoid 2
termination on January 31, 2009. 3
B. The Plaintiffs’ Claims Regarding the Other Individual 4
Defendants 5
During the period at issue, Gagliardi served as the Chief of 6
Police of the NBPD, Anthony Paventi transitioned from lieutenant to 7
captain, Thomas Steck was a lieutenant, and Kenneth Panetta was a 8
sergeant. The plaintiffs allege that each of these defendants created 9
a hostile work environment and subjected them to disparate 10
treatment on the basis of sex by punishing them more harshly than 11
they punished similarly situated male officers for minor rule 12
infractions. The plaintiffs also allege that the department’s 13
investigation into Carlone’s inappropriate behavior was delayed and 14
inadequate, and that Gagliardi was grossly negligent in his 15
supervision of his subordinate officers, particularly Carlone. 16
We discuss below the claims made by the plaintiffs against 17

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these four defendants. 1
1. Motor Vehicle Accidents 2
The plaintiffs’ primary allegations against the remaining 3
defendants focus on their punishment for motor vehicle accidents 4
involving NBPD vehicles. On February 26, 2008, Spring was 5
involved in a motor vehicle accident in which she rear‐ended 6
another vehicle. This incident was investigated by Defendant Steck 7
and various non‐defendant police officers; a non‐defendant officer 8
ultimately concluded that Spring was at fault and issued her a 9
written reprimand. As a result of this accident, the NBPD 10
suspended Spring’s motor vehicle privileges until she completed 11
further driver training. Because of her loss of driving privileges, 12
Spring was required to “walk a beat” until she completed the driver 13
training program. Spring had previously sought assignment to the 14
fourth shift, which is from six in the evening until two in the 15
morning, believing that she would be able to drive her patrol car at 16
this time; after her motor vehicle privileges were revoked, however, 17

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she was assigned to walk her fourth shift “beat.” Spring asserts that 1
she was the only officer to ever walk a beat on the fourth shift and 2
suggests that the defendants discriminated against her on the basis 3
of sex by giving her this assignment. A non‐defendant officer 4
explained in his deposition that, although some officers have been 5
assigned to “directed patrols” on the fourth shift during special 6
circumstances (for instance, when special events occur at night that 7
require increased patrolling), Spring was the only officer assigned to 8
the fourth shift without the special circumstances that justify a 9
directed patrol. Spring completed the requisite driver training 10
classes and returned to motor vehicle patrol duties on April 16, 2008. 11
Raspardo was involved in a serious motor vehicle accident on 12
March 14, 2008, which kept her out of work because of her injuries 13
until May 2, 2008. This accident resulted in severe damage to the 14
vehicles and occupants involved, including $14,000 in damage to her 15
police vehicle and substantial damage to the other vehicle, which 16

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rolled over with a mother and child inside who had to be taken to 1
the hospital for emergency treatment. The NBPD found Raspardo at 2
fault for this accident, a finding Raspardo does not appear to contest 3
in this appeal. Following the advice of her union representative, 4
Raspardo agreed to a four‐day work suspension for this accident.5 5
As with Spring, Raspardo lost her driving privileges until she 6
completed a driver training program. For reasons that are not clear, 7
Raspardo did not complete the driver training program until 8
October 10, 2008, at which time she returned to normal patrol duties. 9
In the meantime, she walked a beat on the late‐night fifth shift. 10
Raspardo, like Spring, asserts that she was the only officer ever 11
forced to walk a beat on this shift.6 Raspardo also alleges that 12
Defendant Paventi strictly monitored her to ensure that she was not 13
5 Raspardo asserted below that she only agreed to the suspension because
Gagliardi told her that if she did not, she would likely be suspended for thirty
days.
6 A non‐defendant officer also testified in his deposition that Raspardo was the
only officer required to walk a beat during that shift.

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assigned a vehicle during this time, confirmed by Raspardo’s direct 1
supervisor at the time, Lieutenant Masternak. She claims that 2
Defendant Steck took a similar interest in ensuring that she was not 3
allowed to operate a vehicle. Finally, Raspardo claims that during 4
the time she was assigned to walk her fifth shift beat, she was forced 5
to patrol on foot during a hurricane. 6
Finally, Russell describes a car accident in which she and an 7
“Officer Sloate” had a minor collision in their patrol cars. Russell 8
alleges that Carlone assisted Officer Sloate in writing and editing his 9
statement concerning the accident. She also alleges that, although 10
Officer Sloate indicated to her that he easily cleaned up the 11
superficial damage to his vehicle, Russell was “written up” and 12
given a “Supervisor’s Warning” for the accident. Russell was also 13
“incidentally” assigned to “walk the beat” at this time. It appears 14
that a “Sergeant Woodruff” investigated this accident and that no 15
defendants other than Carlone were involved. 16

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The three plaintiffs allege that male officers who were found 1
at fault for motor vehicle accidents were not disciplined as severely. 2
The comparative accident investigation reports that they presented 3
to the district court mainly involve minor incidents with no injuries 4
and limited property damage, and generally conclude by explaining 5
that a “Supervisor’s Warning” was issued or that driver retraining 6
was recommended. Most of the investigating officers who issued 7
these reports are not defendants in this case, and it is not clear from 8
the record whether the recommended punishments were actually 9
enforced. The plaintiffs also allege that it was common knowledge 10
that their NBPD superiors forced them to walk nighttime beats as 11
punishment and that other officers who were involved in similar 12
accidents were not required to walk these late patrols. 7 The 13
plaintiffs admit, however, that at least one male officer (“Officer 14
Jared Barseleau”) was required to walk a patrol following car 15
7 The defendants maintain that all patrols are “walking beats,” but an internal
NBPD memorandum demonstrates that patrol officers are assigned to use police
cruisers 83% of the time.

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accidents. 1
2. Sick Leave and Roll Call 2
Spring and Raspardo also claim that these NBPD superiors 3
treated them more harshly regarding their use of sick time and their 4
tardiness than they treated male officers for committing the same 5
infractions. For example, Spring alleges that Paventi strictly 6
enforced against her a department policy that an officer on sick leave 7
must inform the officer in charge any time the officer leaves her 8
home, and Raspardo and Spring point to several specific instances 9
where the individual defendants reprimanded the plaintiffs for 10
improper use of sick leave and miscommunications about use of sick 11
leave. These plaintiffs also assert that “[t]ardiness without discipline 12
is routine in the police department,” but that, despite this, they were 13
publicly reprimanded or “written up” for arriving ten minutes late 14
to their shifts. Defs.’ App. 135‐36 ¶¶ 104‐107, 61 ¶ 59, 107 ¶ 59. 15
They assert that similarly situated male officers were not punished 16
in this manner. They present no evidence aside from their own 17

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statements, however, that specific male officers were treated 1
differently under similar circumstances. 2
Spring and Russell also claim that Panetta and Steck 3
reprimanded and criticized them for various minor infractions 4
during roll call. For example, Panetta singled out Russell and Spring 5
for not wearing their complete uniforms. The plaintiffs again claim 6
that these defendants did not reprimand male officers for similar 7
infractions, but fail to identify particular instances in which these 8
defendants treated specific male police officers more favorably. For 9
example, Spring alleges that her superiors removed her from the 10
Domestic Violence Reduction Team as punishment for abuse of sick 11
leave and did not place her back on that squad; a male officer was 12
similarly removed from a different squad for the same reason but 13
was eventually reinstated. It is unclear from the record, however, 14
who made these decisions and whether Spring and that male officer 15
are similarly situated. 16

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The plaintiffs also make varied claims about discipline 1
imposed arbitrarily or for spurious reasons. They assert, for 2
instance, that Panetta reprimanded Russell on the radio (when other 3
officers could hear the exchange) and that Steck “wrote up” 4
Raspardo for not wearing her hat five minutes before the end of her 5
shift. They allege that male officers are not disciplined “on the air” 6
and are not “written up” for failing to wear their police hats. 7
Finally, they point to instances during which they were denied 8
“personal days” and incidents during which Paventi identified them 9
as “absent without leave” (“AWOL”) after miscommunications 10
about personal days; they assert that male officers were not treated 11
as harshly for similar infractions. Again, they do not provide 12
specific evidence concerning more favorable treatment of male 13
officers. Raspardo also complains of an incident in which her 14
superiors allegedly viewed an injury she suffered while on duty 15
with more skepticism than they viewed a similar injury suffered by 16

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Defendant Steck, and an incident in which Defendant Steck ordered 1
Spring to pick up Raspardo and for Raspardo to act as the “initial 2
officer” on all calls, even though officers usually alternate this duty. 3
3. The Carlone Investigation 4
The plaintiffs also claim that the department did not timely or 5
adequately respond to “warning signs” regarding Carlone. 6
Although the city’s liability is not before us on this appeal, these 7
claims may be relevant to the supervisory liability claim against 8
Gagliardi and provide context for the claims against the other 9
individual defendants. 10
The Department twice investigated Carlone for alleged 11
inappropriate behavior before the events involving the plaintiffs 12
occurred. First, in 2006, Lieutenant Steck (not Defendant Steck) and 13
Defendant Paventi heard reports that Carlone was “dogging”8 an 14
“Officer Hayden.” This led to an investigation in which Hayden 15
8 “Dogging” apparently encompassed spending an excessive amount of time
focusing on what Officer Hayden was doing and repeatedly going on her calls,
calling her on the radio, and asking for her location.

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told the department that she did not feel harassed by Carlone. 1
Nonetheless, Carlone’s superiors ordered him not to offer rides to 2
Officer Hayden in his patrol car unless it was an emergency. 3
In the course of this investigation, Lieutenant Steck and 4
Defendant Paventi learned that Carlone had made a joke about a 5
female officer during roll call concerning the use of a vibrator. 6
Although the female officer told the investigating officers that she 7
was not offended by the comment, they referred the incident “up the 8
chain of command,” and Gagliardi confronted Carlone about it, 9
ultimately issuing the discipline of “a verbal counseling.” Carlone 10
assured Gagliardi that he would not make similar remarks in the 11
future.9 12
The Department investigated Carlone again in December 2006 13
for misusing the MDT messaging system. This investigation, in 14
which Defendant Paventi participated, determined that Carlone had 15
9 It appears that Carlone continued to pick Officer Hayden up in his patrol
vehicle and that Paventi conducted a verbal counseling session to inform Carlone
that he should stop doing this.

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used the system to discuss personal matters with female civilian 1
dispatchers and police personnel, and on at least one occasion had 2
sent a message in which offensive language was used. Investigators 3
informed Gagliardi about Carlone’s misuse of the MDT messaging 4
system, and Gagliardi suspended Carlone for two days, forced him 5
to forfeit two days of accrued holiday leave, and informed him that 6
any further violation of department rules and regulations may result 7
in more severe discipline.10 It was during this investigation that the 8
department first learned that Carlone had referred to Spring as 9
“Brown Eye” in an MDT message, but this was not reported to 10
Spring at the time. 11
4. Gagliardi’s and Paventi’s Comments 12
The plaintiffs assert that Gagliardi and Paventi also made 13
inappropriate sexual comments to and about them. Raspardo 14
alleges that when she met with Gagliardi before being hired, 15
10 Lieutenant Steck later stated in a deposition that he believed this punishment
was insufficient and may have contributed to future misbehavior by Carlone.

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Gagliardi told her that if she was hired “he was going to have a 1
sexual harassment problem with her.” Defs.’ App. 114 ¶ 16. 2
Paventi, who appears to have been informally responsible for 3
creating nicknames for NBPD officers,11 referred to Raspardo as “J 4
Lo,” a commonly used nickname for the celebrity Jennifer Lopez, 5
which Russell and others understood to be a reference to Raspardo’s 6
buttocks. He also called Spring “Tiki,” which Spring believed was a 7
sexualized reference to the swinging hips of dashboard tiki dolls. 8
Finally, Paventi referred to Spring, and perhaps other female 9
officers, as “Rock Stars.” Spring interpreted this nickname as a 10
reference to a strip club named “Rock Star” in a nearby town. The 11
name’s meaning is somewhat unclear, however, because one of 12
Paventi’s own nicknames for himself was “Rock Star.”12 13
11 Paventi’s nicknames for female police officers who are not plaintiffs in this suit
included “Shuffler,” “Hm,” “Boom Boom,” “Spider,” and “Woo Woo,” and he
appears to have had nicknames for many of the male NBPD officers as well. Pl.
Gagliardi’s App. 334‐40.
12 At this stage, we accept the plaintiffs’ characterization.

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5. Gagliardi Denies Light Duty 1
In 2006, Spring requested to be put on “light duty” following 2
elective eye surgery and a car accident. Gagliardi denied this 3
request. Spring asserts that certain male officers were assigned to 4
“light duty” following injuries. She provides no details or specific 5
evidence concerning these officers. 6
Russell also appears to allege that Gagliardi denied her 7
request to be put on “light duty” in 2010, pursuant to the Family 8
Medical Leave Act, following her report of Carlone’s harassment. 9
She provides no details concerning this incident and does not 10
identify male officers who were treated more favorably. 11
6. Explicit Photos of Spring 12
In May 2006, a “Sergeant Saccente” reported a rumor that an 13
NBPD officer was showing sexually explicit photographs of a female 14
NBPD officer to emergency medical services (“EMS”) employees. 15
The incident was investigated in early 2007, and it was determined 16
that the photographs were of Spring and that the male officer who 17

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showed the photographs was her former boyfriend, Officer Stralzka, 1
also an officer in the NBPD. Although Paventi eventually 2
interviewed EMS employees, investigators did not ultimately take 3
any disciplinary action against Stralzka. The plaintiffs allege that 4
the NBPD’s response to these allegations was inadequate. 5
7. Use of Videos in Training 6
At a mandatory training session on April 10, 2008, a “Sergeant 7
Pearson” showed a mixed group of male and female officers, 8
including plaintiffs Russell and Spring, three sexually explicit videos 9
that were irrelevant to the session’s subject matter. None of the 10
individual defendants were present at this training session. 11
Supervisors in the department learned of the videos in the fall of 12
2008, and Defendant Paventi conducted an investigation. Paventi 13
eventually confiscated two of the videos, and it appears that they 14
were not used in future training. 15
16
17

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8. Paventi’s Investigation of Allegations of Russell’s 1
Poor Performance 2
Russell alleges that Paventi investigated alleged poor 3
performance by her and other police officers who responded to two 4
particular police calls and unfairly discredited her version of events 5
in retaliation for reporting Carlone’s sexual misconduct. She asserts 6
that in these instances, Paventi credited the accounts of the male 7
officers involved rather than accepting Russell’s explanation. It is 8
unclear from the record whether these allegations were formalized 9
in a performance evaluation or resulted in disciplinary action 10
because the allegation is made in a conclusory fashion and no other 11
materials are submitted to substantiate it. 12
9. Paventi’s Calls to Spring’s New Employer 13
Spring alleges, with no evidentiary support in the record, that 14
after she left the NBPD in 2008 to join the Torrington Police 15
Department, Paventi called her new supervisor in Torrington. She 16
asserts that Paventi informed him that Spring had called out sick 17

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31
from her duties at the NBPD in order to attend the Torrington Police 1
Department swearing‐in ceremony, that she abused sick time, and to 2
“watch out” for her because she was suing the NBPD for sexual 3
harassment. Spring does not allege that this phone call affected her 4
employment at the Torrington Police Department. 5
10. Paventi’s Allegation that Raspardo Deleted a Report 6
Raspardo alleges that in February of 2010, almost two years 7
after she reported her allegations of sexual harassment, Paventi 8
informed Defendant Steck that Raspardo purposely deleted a police 9
report she had completed, lied about deleting the report, and then 10
“undeleted” the report. Raspardo’s assertion regarding Paventi’s 11
role in this incident, however, appears to be based on speculation; 12
the incident is not substantiated in the record, and no further details 13
are given about it.13 14
13 Although Raspardo makes this claim on appeal, it was not included in her Rule
56.1 statement below. We thus do not address it further.

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11. Raspardo’s Knowledge of Spanish 1
On May 2, 2010, approximately two years after Raspardo 2
made her initial complaints concerning sexual harassment, 3
Defendant Panetta submitted a report to his superiors stating that he 4
had observed Raspardo, who previously represented that she did 5
not speak Spanish, speaking Spanish while on a call.14 He wrote in 6
this report that “there is reason to believe that she has been 7
insubordinate in lying directly to her supervisor about her ability to 8
utilize the Spanish language at work.” Pl. Gagliardi’s App. 342. 9
Panetta requested to review Raspardo’s departmental background 10
investigation in order to determine if Raspardo had any proficiency 11
in Spanish. This led to an investigation in which Gagliardi and 12
Paventi were involved. Raspardo does not appear to have been 13
disciplined for the incident, but she filed a NBPD administrative 14
complaint of harassment against Panetta and submitted a letter to 15
14 Apparently, it would have been an advantage to the NBPD to utilize officers
who spoke Spanish in certain situations.

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33
Gagliardi, alleging that Gagliardi pursued the investigation into her 1
Spanish‐speaking abilities in order to punish her for filing her sexual 2
harassment suit against the Department. The plaintiffs do not 3
provide further details regarding the incident. 4
II. Procedural History 5
After exhausting state administrative proceedings that apply 6
only to their Title VII claims,15 the plaintiffs filed suit in the United 7
States District Court for the District of Connecticut against the City 8
of New Britain, the NBPD, the police union, and the five individual 9
defendants. The plaintiffs asserted claims against the city and its 10
police department under Title VII, 42 U.S.C. § 1983, and Connecticut 11
law.16 The plaintiffs asserted claims under 42 U.S.C. § 1983 and 12
15 The plaintiffs initiated proceedings before the CHRO in September of 2008.
Like the Equal Employment Opportunity Commission, the CHRO is an avenue
for exhaustion of remedies in Connecticut, and the CHRO is authorized to issue
“right to sue” letters. Because the claims in this appeal concern 42 U.S.C. § 1983,
administrative exhaustion is not required. Annis v. Cnty. of Westchester, 36 F.3d
251, 254‐55 (2d Cir. 1994).
16 The plaintiffs failed to assert claims against the police union in their revised
amended complaint, thus removing it as a defendant.

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34
Connecticut law against the five individual defendants. 1
Carlone and the other individual defendants separately 2
moved for summary judgment as to the § 1983 claims, asserting the 3
defense of qualified immunity and arguing that the plaintiffs failed 4
to adduce evidence establishing a hostile work environment or 5
disparate treatment. As mentioned above, Carlone did not move for 6
summary judgment as to Russell’s hostile work environment claims 7
under § 1983 against him. 8
In an order dated March 29, 2012, the district court (Alvin W. 9
Thompson, J.) addressed Carlone’s motion for summary judgment. 10
The district court concluded as to Raspardo’s and Spring’s 42 U.S.C. 11
§ 1983 claims that genuine issues of material fact existed precluding 12
summary judgment on the basis of qualified immunity. The district 13
court did not identify these issues of material fact. The district court 14
did, however, grant summary judgment to Carlone on Russell’s, 15
Raspardo’s, and Spring’s state law claims on the basis that these 16

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35
claims had been withdrawn. 1
The district court also denied in a separate order the 2
remaining individual defendants’ motion for summary judgment as 3
to qualified immunity. The district court concluded that genuine 4
issues of material fact existed, but did not identify the factual issues 5
which precluded a grant of qualified immunity. The district court 6
also granted summary judgment to these defendants on the 7
plaintiffs’ state law claims because the state statutes at issue did not 8
provide causes of action against these defendants.17 9
Carlone appealed from the district court’s denial of his motion 10
for summary judgment, arguing that he was entitled to qualified 11
immunity from Raspardo’s and Spring’s hostile work environment 12
claims. The remaining individual defendants filed a similar appeal, 13
claiming qualified immunity on the plaintiffs’ § 1983 hostile work 14
17 The City of New Britain and the NBPD also moved for summary judgment on
the claims against them. That motion was granted as to certain state law claims
but denied as to the federal claims, including those brought under Title VII. That
ruling is not before us on this appeal.

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36
environment, retaliation, and disparate treatment claims.18 The 1
plaintiffs’ remaining claims, such as their Title VII claims against the 2
City of New Britain, remain pending in the district court. 3
DISCUSSION 4
The issue in this appeal is whether the five individual 5
defendants are entitled to qualified immunity from the plaintiffs’ 6
hostile work environment and disparate treatment claims under 42 7
U.S.C. § 1983. 8
We review de novo a district court’s denial of a public official’s 9
motion for summary judgment on the basis of qualified immunity. 10
Poe v. Leonard, 282 F.3d 123, 131 (2d Cir. 2002). In evaluating a 11
motion for summary judgment, “courts may not resolve genuine 12
disputes of fact in favor of the party seeking summary judgment.” 13
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). Because 14
18 Although the defendants challenged the district court’s ruling as to the
plaintiffs’ retaliation claims in their appeal, the plaintiffs failed to present any
substantive argument on retaliation in their briefs. Thus, we consider these
claims abandoned.

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37
this appeal is before us following the denial of the defendants’ 1
motions for summary judgment, the facts considered below are 2
either undisputed or resolved in favor of the plaintiffs. See id. 3
I. Qualified Immunity 4
A. Appellate Jurisdiction 5
The doctrine of qualified immunity “protects federal and state 6
officials from . . . unnecessary and burdensome discovery or trial 7
proceedings.” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) 8
(internal quotation marks omitted). Qualified immunity “is both 9
important and completely separate from the merits of the action, 10
and this question c[annot] be effectively reviewed on appeal from a 11
final judgment because by that time the immunity from standing 12
trial will have been irretrievably lost.” Plumhoff v. Rickard, 134 S. Ct. 13
2012, 2019 (2014). Thus, although denials of motions for summary 14
judgment are generally not appealable, a district court’s denial of a 15
defendant’s motion for summary judgment on the ground of 16
qualified immunity is immediately appealable under the collateral 17

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38
order doctrine if the district court’s denial of that motion turned on a 1
legal question. Id. at 2018‐19; see also Demoret v. Zegarelli, 451 F.3d 2
140, 148 (2d Cir. 2006); Poe, 282 F.3d at 131. For example, when a 3
district court rejects a defendant’s assertion of qualified immunity 4
on a motion for summary judgment because it concludes that the 5
law the defendant allegedly violated was “clearly established,” that 6
order may be appealed immediately. See Salim v. Proulx, 93 F.3d 86, 7
89 (2d Cir. 1996); cf. Johnson v. Jones, 515 U.S. 304, 313‐18 (1995) 8
(“Jones”) (holding that there is no appellate jurisdiction over a 9
district court’s denial of a defendant’s motion for summary 10
judgment where the defendant challenges whether the plaintiffs 11
have set forth sufficient evidence to create genuine issues of material 12
fact). 13
When a district court denies a defendant’s motion for 14
summary judgment because it finds that genuine factual disputes 15
preclude granting the defendant qualified immunity, immediate 16

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39
appellate review may also be available. See Behrens v. Pelletier, 516 1
U.S. 299, 312‐13 (1996) (clarifying that, even where a district court 2
denies a defendant’s motion for summary judgment on the ground 3
that material issues of fact exist precluding a grant of summary 4
judgment, such a decision is appealable when the appellate court 5
“resolve[s] a dispute concerning an ‘abstract issu[e] of law’ relating 6
to qualified immunity”); see also Scott v. Harris, 550 U.S. 372, 380 7
(2007); Terebesi v. Torreso, Nos. 12‐3867, 12‐3868, 12‐3870, 12‐3898, 12‐ 8
3903, 12‐3990, 2014 WL 4099309, at *7 (2d Cir. Aug. 21, 2014). 9
We have held that “a district court’s mere assertion that 10
disputed factual issues exist[] [is not] enough to preclude an 11
immediate appeal.” Salim, 93 F.3d at 89. Immediate appeal is 12
available from fact‐related rulings “as long as the defendant can 13
support an immunity defense on stipulated facts, facts accepted for 14
purposes of the appeal, or the plaintiff’s version of the facts that the 15
district judge deemed available for jury resolution.” Id. at 90; see also 16

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40
Terebesi, 2014 WL 4099309, at *7; Poe, 282 F.3d at 132; Jemmott v. 1
Coughlin, 85 F.3d 61, 65‐66 (2d Cir. 1996). 2
The individual defendants here contend that, even when all 3
disputed factual issues are resolved in favor of the plaintiffs, they 4
are entitled to qualified immunity. We thus need not resolve any 5
disputed facts or weigh the sufficiency of the evidence as prohibited 6
by Jones, 515 U.S. at 319‐20, to determine if the plaintiffs suffered 7
actionable sexual harassment or disparate treatment. Whether the 8
defendants’ conduct, as examined by viewing the evidence 9
presented at summary judgment in a light favorable to the plaintiffs, 10
violated the plaintiffs’ Fourteenth Amendment rights to equal 11
protection (through sexual harassment or disparate treatment) is a 12
question of law. We therefore have appellate jurisdiction to 13
determine whether the defendants violated the plaintiffs’ 14
constitutional rights based on the plaintiffs’ version of the facts. See 15
Jemmott 85 F.3d at 65‐67 (finding appellate jurisdiction over district 16

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41
court’s denial of defendants’ motion for summary judgment in 1
plaintiff’s Title VII and 42 U.S.C. § 1983 hostile work environment 2
and grossly negligent supervision claims); Poe, 282 F.3d at 132 3
(“Despite the District Court’s assertion that a genuine dispute exists 4
as to whether a reasonable supervisor would have supervised [the 5
offending party] differently, this dispute is essentially a legal one.”). 6
Although this analysis requires us to perform a “detailed evidence‐ 7
based review of the record,” Jones, 515 U.S. at 319, the Supreme 8
Court in Jones explicitly recognized that such an examination is 9
especially important for the purposes of resolving qualified 10
immunity at an early stage in the proceedings where the district 11
court has denied a defendant’s motion for summary judgment on 12
the ground of qualified immunity without explanation. Id. 13
B. The Standard for Qualified Immunity 14
In deciding “questions of qualified immunity at summary 15
judgment, courts engage in a two‐pronged inquiry.” Tolan, 134 S. 16
Ct. at 1865. The first prong “asks whether the facts, taken in the 17

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42
light most favorable to the party asserting the injury . . . show the 1
officer’s conduct violated a federal right[,] . . . [and] [t]he second 2
prong of the qualified‐immunity analysis asks whether the right in 3
question was clearly established at the time of the violation.” Id. at 4
1865‐66 (internal citations, alterations, and quotation marks 5
omitted). Officials operating under color of state law19 are thus 6
entitled to summary judgment when they can establish that either 7
“(1) a constitutional right was [not] violated or (2) the right was not 8
clearly established [at the time of the violation].” Royal Crown Day 9
Care LLC v. Depʹt of Health & Mental Hygiene of City of N.Y., 746 F.3d 10
538, 543 (2d Cir. 2014) (internal citation and quotation marks 11
omitted); see also Coollick, 699 F.3d at 219. As to the first question, if 12
the evidence construed in the light most favorable to the plaintiffs 13
fails to establish as a matter of law that the defendant violated the 14
plaintiff’s constitutional rights, qualified immunity is warranted. 15
19 It is undisputed that the individual defendants here were at all times operating
under color of state law.

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43
Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated in part on other 1
grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). If, however, 2
the evidence does demonstrate a violation of the plaintiff’s 3
constitutional rights, the second question is whether that 4
constitutional right was “clearly established” at the time the official 5
engaged in the conduct. Saucier, 533 U.S. at 201. Answering this 6
second inquiry requires determining whether a reasonable official 7
would understand that his conduct violated the constitutional right 8
in question. Id. at 202 (citing Anderson v. Creighton, 483 U.S. 635, 640 9
(1987)). A court may consider these two questions in either order, 10
and if it determines that one prong is not satisfied, it need not reach 11
the other. See Pearson, 555 U.S. at 236; see also Coollick, 699 F.3d at 12
219‐20. 13
C. Individual Liability in § 1983 Hostile Work Environment Claims 14
The first prong of qualified immunity analysis requires us to 15
determine whether a reasonable jury could conclude that the 16
evidence presented by the plaintiffs establishes that each individual 17

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44
defendant violated their constitutional right to be free from a hostile 1
work environment and disparate treatment on the basis of sex. That 2
task, in turn, requires us to determine the liability of individual 3
defendants under 42 U.S.C. § 1983, which entails an examination of 4
the intersection between Title VII sex discrimination jurisprudence 5
and § 1983’s requirement of individual liability. 6
1. Liability for Non‐Supervisory Conduct 7
Although plaintiffs frequently bring hostile work 8
environment claims against their employers under Title VII, 42 9
U.S.C. § 2000e‐5(e), which does not create liability in individual 10
supervisors and co‐workers who are not the plaintiffs’ actual 11
employers, Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010), state 12
and local officials can be held individually liable under 42 U.S.C. 13
§ 1983 for violating the Equal Protection Clause of the Fourteenth 14
Amendment by discriminatory acts against those who work under 15
them. Public employees have “a clear right, protected by the 16
Fourteenth Amendment, to be free from discrimination on the basis 17

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45
of sex in public employment.” Back v. Hastings on Hudson Union Free 1
Sch. Dist., 365 F.3d 107, 117 (2d Cir. 2004). We have held that the 2
Equal Protection Clause protects such employees from sex‐based 3
workplace discrimination, including hostile work environments and 4
disparate treatment. See Demoret, 451 F.3d at 149; Patterson v. County 5
of Oneida, 375 F.3d 206, 226 (2004); Jemmott, 85 F.3d at 67‐68. 6
To establish a hostile work environment claim under the Title 7
VII framework, a plaintiff must show that the “workplace is 8
permeated with discriminatory intimidation, ridicule, and insult that 9
is sufficiently severe or pervasive to alter the conditions of the 10
victim’s employment and create an abusive working environment.” 11
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations 12
and quotation marks omitted). This standard has both objective and 13
subjective components: the conduct complained of must be severe or 14
pervasive enough that a reasonable person would find it hostile or 15
abusive, and the victim must subjectively perceive the work 16

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46
environment to be abusive. Id. at 21‐22; Alfano v. Costello, 294 F.3d 1
365, 374 (2d Cir. 2002). The incidents complained of “must be more 2
than episodic; they must be sufficiently continuous and concerted in 3
order to be deemed pervasive.” Alfano, 294 F.3d at 374 (internal 4
quotation marks omitted). There is no “mathematically precise 5
test,” however, for deciding whether an incident or series of 6
incidents is sufficiently severe or pervasive to alter the conditions of 7
a plaintiff’s working environment. Harris, 510 U.S. at 22‐23. Instead, 8
courts must assess the totality of the circumstances, considering 9
elements such as “the frequency of the discriminatory conduct; its 10
severity; whether it is physically threatening or humiliating, or a 11
mere offensive utterance; and whether it unreasonably interferes 12
with an employee’s work performance.” Id. at 23. The effect of 13
identified incidents on the employee’s psychological well‐being is 14
also relevant, though not determinative. Id. 15
Although we have long recognized that Title VII‐based hostile 16

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47
work environment claims by government employees are actionable 1
under § 1983, see Patterson, 375 F.3d at 225‐27, we have not specified 2
in our prior decisions the role of individual responsibility required 3
for a defendant in a § 1983 case involving claims of sex‐based 4
harassment by multiple defendants, nor have we charted 5
supervisory liability in this context. 6
This case demonstrates how hostile work environment claims 7
that may readily be brought against employers under Title VII do 8
not always fit easily within the context of individual liability under 9
§ 1983. The Title VII framework often requires courts to consider the 10
workplace conduct of multiple employees and supervisors in 11
determining whether the plaintiff has experienced a hostile work 12
environment. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 13
U.S. 75, 77 (1998) (describing the harassing actions taken by 14
employees both jointly and individually which could contribute to a 15
hostile work environment in a Title VII case). Hostile work 16

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48
environment claims under Title VII thus look to the circumstances of 1
the plaintiff’s employment, and hold the employer liable when the 2
misconduct in the workplace is so severe as to alter the terms and 3
conditions of the plaintiff’s employment. See Harris, 510 U.S. at 21. 4
Section 1983, however, applies by its terms only to individual 5
“persons” responsible for violating plaintiffs’ rights.20 In order to 6
overcome a government official’s claim to qualified immunity and 7
“establish individual liability under § 1983, a plaintiff must show . . . 8
that the defendant caused the plaintiff to be deprived of a federal 9
right.” Back, 365 F.3d at 122; see also Ashcroft v. Iqbal, 556 U.S. 662, 10
676 (2009). If a defendant has not personally violated a plaintiff’s 11
constitutional rights, the plaintiff cannot succeed on a § 1983 action 12
against the defendant. 13
Our few prior decisions addressing multi‐defendant § 1983 14
20 42 U.S.C. § 1983 (imposing liability only on “person[s]” who violate plaintiffs’
constitutional rights). Monell v. Department of Social Services defines
municipalities as “persons” under § 1983. 436 U.S. 658, 690 (1978); see also
Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 42 (2d Cir. 2014). The plaintiffs’
Monell claim is not at issue in this appeal.

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49
hostile work environment cases have denied qualified immunity to 1
defendants whose conduct, considered alone, was sufficiently severe 2
or pervasive to alter the conditions of the plaintiff’s employment. 3
For example, in Patterson v. County of Oneida, we upheld qualified 4
immunity for defendants who had not participated in the acts of 5
harassment of which the plaintiff complained, but remanded for 6
trial in the case of defendants whose separate discriminatory acts 7
could be found by a jury to be “sufficiently humiliating to alter the 8
conditions of [the plaintiff’s] employment.” 375 F.3d at 229‐30. 9
Similarly, in Jemmott v. Coughlin, we recognized that “[e]ach 10
individual defendant’s alleged conduct towards [the plaintiff], if 11
proven, did [separately] amount to ‘severe and pervasive’ 12
harassment, which therefore violated [the plaintiff’s] clearly 13
established rights,” precluding a grant of qualified immunity. 85 14
F.3d at 67. 15
Thus, our prior cases have established only that when a 16

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50
plaintiff alleges that multiple individual defendants have engaged in 1
uncoordinated and unplanned acts of harassment, each defendant is 2
only liable under § 1983 when his own actions are independently 3
sufficient to create a hostile work environment. We therefore cannot 4
say that it is clearly established law that an individual defendant has 5
violated a plaintiff’s equal protection rights if he has not personally 6
behaved in such a way as to create an atmosphere of severe or 7
pervasive harassment. Accordingly, absent such behavior, an 8
individual defendant is entitled to qualified immunity.21 See also 9
Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (“In 10
order to survive a motion for summary judgment on his . . . equal 11
21 Jointly planned or perpetrated acts of harassment, of course, may be attributed
to each of the defendants. See, e.g., Dwares v. City of New York, 985 F.2d 94, 99 (2d
Cir. 1993) (permitting a § 1983 suit to proceed against defendant‐police officers
where plaintiffs alleged that the officers conspired with attackers who injured
plaintiffs), abrogated on other grounds by Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 167‐68 (1993). As plaintiffs have not
argued that the defendants acted in concert, we have no occasion here to
consider the extent of the evidence required to establish such joint action. We
caution, however, that conspiracies may exist even if their members have not
expressly agreed to engage in joint behavior, and may be inferred from the
actions of multiple parties who are aware of, and intentionally commit acts to
further, a common project.

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51
protection . . . claims, [the plaintiff] must come forward with at least 1
some credible evidence that the actions of the individual appellees 2
were motivated by racial animus or ill‐will.” (emphasis added)). But 3
cf. Reynolds v. Barrett, 685 F.3d 193, 204‐06 (2d Cir. 2012) (holding 4
that, because liability under § 1983 requires personal involvement by 5
a defendant, the “pattern‐or‐practice framework,” which 6
demonstrates that a pattern of discrimination exists in the aggregate 7
at a corporate entity, is “ill‐suited to the task of identifying which 8
individual defendants engaged in purposeful discrimination” and 9
cannot be imported into the § 1983 context).22 10
2. Supervisory Liability 11
Individual liability under § 1983 in hostile work environment 12
claims may also involve supervisory liability. In addressing the 13
“federal analog” of § 1983 Bivens actions, the United States Supreme 14
Court in Ashcroft v. Iqbal confirmed that liability for supervisory 15
22 We note that the plaintiffs sue the individual defendants in their individual
capacities only.

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52
government officials cannot be premised on a theory of respondeat 1
superior because § 1983 requires individual, personalized liability on 2
the part of each government defendant. 556 U.S. 662 (2009). 3
Instead, “[b]ecause vicarious liability is inapplicable to . . . § 1983 4
suits, a plaintiff must plead that each Government‐official 5
defendant, through the official’s own individual actions, has 6
violated the Constitution.” Id. at 676. Thus, “each Government 7
official . . . is only liable for his or her own misconduct.” Id. at 677; 8
see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d. Cir. 2003) 9
(“It is well settled . . . that the doctrine of respondeat superior 10
standing alone does not suffice to impose liability for damages 11
under section 1983 on a defendant acting in a supervisory 12
capacity.”). Prior to Iqbal, we held that: 13
The personal involvement of a supervisory defendant may 14
be shown by evidence that: (1) the defendant participated 15
directly in the alleged constitutional violation, (2) the 16
defendant, after being informed of the violation through a 17
report or appeal, failed to remedy the wrong, (3) the 18
defendant created a policy or custom under which 19

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53
unconstitutional practices occurred, or allowed the 1
continuance of such a policy or custom, (4) the defendant 2
was grossly negligent in supervising subordinates who 3
committed the wrongful acts, or (5) the defendant 4
exhibited deliberate indifference to the rights of [plaintiffs] 5
by failing to act on information indicating that 6
unconstitutional acts were occurring. 7
8
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Back, 365 9
F.3d at 127; Hayut, 352 F.3d at 753. In addition to satisfying one of 10
these requirements, a plaintiff must also establish that the 11
supervisor’s actions were the proximate cause of the plaintiff’s 12
constitutional deprivation. Poe, 282 F.3d at 134. Finally, as with 13
individual liability, in the § 1983 context, a plaintiff must establish 14
that a supervisor’s behavior constituted intentional discrimination 15
on the basis of a protected characteristic such as sex. Patterson, 375 16
F.3d at 226. 17
As relevant here, “gross negligence” denotes a higher degree 18
of culpability than mere negligence. Poe, 282 F.3d at 140 n.14, 146. It 19
is “the kind of conduct where the defendant has reason to know of 20

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54
facts creating a high degree of risk of . . . harm to another and 1
deliberately acts or fails to act in conscious disregard or indifference 2
to that risk.” Id. (internal citations, alterations, and quotation marks 3
omitted). A supervisor is protected by qualified immunity so long 4
as reasonable officials could disagree about whether the supervisor’s 5
action was grossly negligent in light of clearly established law. See 6
id. at 146 (“[T]he legal inquiry necessitated by the defense of 7
qualified immunity . . . requires that a court determine whether, 8
under the plaintiff’s version of the facts, reasonable officers in the 9
defendant’s position could disagree as to the legality of his 10
actions.”). 11
The standard of gross negligence is satisfied where the 12
plaintiff establishes that the defendant‐supervisor was aware of a 13
subordinate’s prior substantial misconduct but failed to take 14
appropriate action to prevent future similar misconduct before the 15
plaintiff was eventually injured. See, e.g., Johnson v. Newburgh 16

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55
Enlarged Sch. Dist., 239 F.3d 246, 255 (2d Cir. 2001) (“Johnson”) 1
(holding that, where complaint alleged defendant‐supervisors were 2
aware teacher assaulted students on four occasions prior to his 3
assault of the plaintiff, “a jury could find the [s]upervisors 4
personally involved in the unconstitutional deprivation on the basis 5
that they were . . . grossly negligent in supervising” the teacher); 6
Meriwether v. Coughlin, 879 F.2d 1037, 1047‐48 (2d Cir. 1989) 7
(affirming finding of supervisory liability when evidence showed 8
that supervisors knew or should have known that plaintiff‐inmates’ 9
reputations as alleged planners of a violent insurrection would 10
expose them to extreme hostility from the guards, yet took no 11
precautions for the inmates’ safety); see also Poe, 282 F.3d at 146 12
(holding that the plaintiff failed to raise a triable issue regarding the 13
defendant‐supervisor’s alleged gross negligence where the 14
supervisor failed to review his subordinate’s personnel history and 15
was aware of inappropriate, though not sexually provocative, 16

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56
demands the employee had made to other women). 1
A supervisor is not grossly negligent, however, where the 2
plaintiff fails to demonstrate that the supervisor knew or should 3
have known of a problematic pattern of employee actions or where 4
the supervisor took adequate remedial steps immediately upon 5
learning of the challenged conduct. See, e.g., Hayut, 352 F.3d at 753; 6
Colon, 58 F.3d at 873. A plaintiff pursuing a theory of gross 7
negligence must prove that a supervisor’s neglect caused his 8
subordinate to violate the plaintiff’s rights in order to succeed on her 9
claim. Poe, 282 F.3d at 140. 10
We have not yet determined the contours of the supervisory 11
liability test, including the gross negligence prong, after Iqbal. 556 12
U.S. at 676‐77; see Reynolds, 685 F.3d at 205‐06 n.14 (casting doubt on 13
the continuing vitality of each prong of the supervisory liability 14
test). We need not decide this question here because, as explained 15
below, Gagliardi did not act with gross negligence in his supervision 16

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57
of Carlone, and the other tests for supervisory liability are not 1
satisfied. 2
D. Raspardo’s and Spring’s Hostile Work Environment Claims 3
Against Carlone 4
We conclude that the first prong of the test for qualified 5
immunity with relation to Defendant Carlone is satisfied as to 6
Spring. Carlone did not create a hostile work environment for 7
Spring and therefore did not violate her constitutional right to equal 8
protection. In light of this conclusion, we need not reach the second 9
question of whether a reasonable officer would have understood 10
Carlone’s conduct as sufficient to constitute a hostile work 11
environment. Thus, we conclude that Carlone is entitled to qualified 12
immunity on Spring’s § 1983 hostile work environment claim and 13
reverse the decision of the district court. 14
Raspardo’s hostile work environment claim is more 15
substantial. Ultimately, the four principal incidents of Carlone’s 16
behavior alleged by Raspardo, including unwanted physical contact 17

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and comments of a sexual nature in front of other officers, when 1
combined with the “over ten occasions” on which Carlone allegedly 2
made comments about Raspardo’s body during the same one‐year 3
period, are sufficient to permit a jury to find a hostile work 4
environment. We also conclude that Carlone’s conduct was clearly 5
established as unlawful sexual harassment at the time of the events 6
in question and that objectively reasonable officers would not 7
disagree that Carlone’s conduct constituted sexual harassment. 8
Carlone has thus failed to establish qualified immunity as to 9
Raspardo. We therefore affirm the district court’s denial of qualified 10
immunity to Carlone on Raspardo’s hostile work environment 11
claim. 12
1. Spring’s Claims 13
Spring’s claims against Carlone rest primarily on two 14
incidents. The first is the 2007 police call concerning a naked 15
woman. As mentioned, Carlone sent Spring a message saying she 16
would “be perfect” for the call and then sent additional messages 17

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that Spring found offensive. Spring did not respond directly to the 1
messages and had no issues with Carlone at the scene. Second, 2
throughout her time under Carlone’s supervision, Carlone gave 3
Spring rides in his police cruiser while she was walking a patrol. On 4
these occasions, Carlone would sometimes ask Spring about her 5
dating history, which she found uncomfortable, but she did not 6
otherwise perceive Carlone’s actions to be inappropriate. Spring 7
subsequently learned that Carlone had been instructed not to pick 8
up female officers in his cruiser, but she did not regard these 9
interactions as inappropriate at the time. Finally, Carlone referred to 10
Spring as “Brown Eyes” on a number of occasions. 11
This conduct falls short of the standard required for a hostile 12
work environment claim. While Carlone’s comments in the MDT 13
message may have been offensive, they appear to have been isolated 14
and were not as substantial as events that we have found sufficient 15
to create a hostile work environment in prior decisions. Compare 16

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Alfano, 294 F.3d at 374 (noting that, as a general rule, “episodic” 1
incidents will not be sufficient to establish a hostile work 2
environment), with Howley v. Town of Stratford, 217 F.3d 141, 149, 154 3
(2d Cir. 2000) (finding that a single incident created a hostile work 4
environment when the plaintiff’s co‐worker went on a lengthy, 5
vulgar tirade against the plaintiff in the presence of a large group of 6
co‐workers). Spring did not regard Carlone giving her rides in his 7
cruiser as inappropriate at the time. As a matter of law, these 8
incidents, as well as the use of the nickname, spread over more than 9
a year, were not “sufficiently severe or pervasive to alter the 10
conditions of [Spring’s] employment and create an abusive working 11
environment.” Alfano, 294 F.3d at 373 (internal quotation marks 12
omitted). 13
Spring supports her claim by also pointing to various 14
comments Carlone made to others about her body or dating life 15
outside of Spring’s presence. However, Spring admits that she did 16

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not learn of any of these comments until after Carlone had been 1
placed on administrative leave and Spring had resigned from the 2
NBPD. Had Spring learned of these comments while she was 3
employed at the NBPD and while Carlone was still her supervisor, 4
perhaps they would have supported Spring’s hostile work 5
environment claim against Carlone. 6
That Spring never learned of these remarks while employed 7
by the NBPD makes her situation unlike others involving comments 8
made outside the plaintiff’s presence. See Schwapp v. Town of Avon, 9
118 F.3d 106, 111 (2d Cir. 1997) (“[T]he fact that a plaintiff learns 10
second‐hand of a racially derogatory comment or joke by a fellow 11
employee or supervisor . . . can impact the work environment.”); 12
Torres v. Pisano, 116 F.3d 625, 633 (2d Cir. 1997) (“The fact that many 13
of [the plaintiff’s supervisor’s] statements were not made in [the 14
plaintiff’s] presence is, in this case, of no matter; an employee who 15
knows that her boss is saying things of this sort behind her back may 16

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reasonably find her working environment hostile.”). 1
Construing the incidents cited by Spring generously in her 2
favor, we hold as a matter of law that Carlone’s behavior did not 3
create a sufficiently abusive working environment for Spring. Thus, 4
Carlone is entitled to qualified immunity as to her hostile work 5
environment claim. 6
2. Raspardo’s Claims 7
Raspardo cites four principal incidents to support her hostile 8
work environment claim against Carlone. In 2007, Carlone asked 9
Raspardo if she was “planning to go out drinking or have sex with 10
[her] boyfriend,” another officer in the department, told Raspardo 11
that her uniform should be more “form fitting,” and attempted to 12
massage Raspardo’s shoulders. In early 2008, Carlone showed 13
Raspardo a suggestive photograph of a woman wearing tactical gear 14
in a magazine which was focused on the woman’s buttocks and 15
passed the photo around to other male officers who were also 16
present, saying that the woman’s buttocks looked like Raspardo’s. 17

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Raspardo told Carlone that his comments were not funny or ignored 1
him and left immediately during these incidents. 2
Raspardo also stated in a sworn statement to the NBPD 3
during its investigation of Carlone that Carlone, her direct 4
supervisor at the time, “made references [of a sexual nature] to [her] 5
body parts on at least over ten occasions,” particularly concerning 6
her buttocks, often in front of other officers, which made her “feel 7
disrespected, angry, and embarrassed.” Pl. Carlone’s App. 4‐5. She 8
reiterated these allegations in her later deposition testimony and 9
interrogatory answers. 10
The four principal incidents, including unwanted touching 11
and vulgar comments in front of other officers, when combined with 12
the “over ten” additional comments about Raspardo’s body, all over 13
a period of just one year, would be amply sufficient to permit a jury 14
to find a sexually hostile work environment. See Raniola v. Bratton, 15
243 F.3d 610, 618‐20 (2d Cir. 2001) (observing that numerous 16

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incidents of vulgar name calling and workplace sabotage could 1
create a hostile work environment); Carrero v. N.Y.C. Housing Auth., 2
890 F.2d 569, 578 (2d Cir. 1989) (holding a supervisor’s constant 3
unwelcome attempts to touch and kiss the plaintiff sufficient to 4
establish a hostile work environment). The evidence presented by 5
Raspardo, if true, demonstrates that Carlone violated her 6
constitutional right to equal protection through this sexual 7
harassment. 8
Raspardo’s right to be free from severe or pervasive sexual 9
harassment was also clearly established at the time of Carlone’s 10
conduct in 2007 and 2008. This Court has repeatedly held that 11
public employees have the right to be free from discrimination based 12
on their sex, and we have made Title VII hostile work environment 13
claims available under § 1983. See Demoret, 451 F.3d at 149; Patterson, 14
375 F.3d at 226; Back, 365 F.3d at 117; Jemmott, 85 F.3d at 66‐67. We 15
also cannot accept Carlone’s contention that an objectively 16

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reasonable police officer would believe that this conduct was not 1
clearly sexual harassment. See Jemmott, 85 F.3d at 67; see also Royal 2
Crown Day Care LLC, 746 F.3d at 545. Carlone has failed to establish 3
either that he did not violate Raspardo’s constitutional right to equal 4
protection or that the right was not clearly established at the time of 5
his conduct; he is thus not entitled to qualified immunity. We 6
therefore affirm the district court’s denial of Carlone’s motion for 7
summary judgment on the basis of qualified immunity as to 8
Raspardo’s hostile work environment claim. 9
E. The Hostile Work Environment Claims of Russell, Raspardo, and 10
Spring Against the Remaining Defendants 11
Carlone’s conduct was clearly sex‐based. By contrast, the 12
plaintiffs’ evidence against the remaining four individual 13
defendants presents conduct that, with few exceptions, does not 14
appear to be tied to the plaintiffs’ sex. Thus, in addition to 15
considering whether the acts of a particular defendant were 16
sufficient to create a hostile work environment for a particular 17

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plaintiff, we must consider whether the plaintiffs have alleged and 1
presented evidence from which a reasonable jury could conclude 2
that the conduct was caused by intentional discrimination based on 3
sex. See Patterson, 375 F.3d at 226 (“[A]lthough in certain 4
circumstances a Title VII claim may be established through proof of 5
a defendant’s mere negligence, without a showing of discriminatory 6
intent, a plaintiff pursuing a . . . denial of equal protection under 7
§ 1983 must show that the discrimination [based on a protected 8
characteristic] was intentional.” (internal citation omitted)); Back, 365 9
F.3d at 118 (“To make out . . . a claim [for sex discrimination in 10
violation of the Fourteenth Amendment under § 1983], the plaintiff 11
must prove that she suffered purposeful or intentional 12
discrimination on the basis of gender.”). 13
We must also apply supervisory liability analysis to Gagliardi, 14
who was the Chief of the NBPD at the time of the plaintiffs’ alleged 15
harassment, to determine whether he violated the plaintiffs’ 16

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constitutional rights on that basis.23 See Hayut, 352 F.3d at 753; Colon, 1
58 F.3d at 873; see also Iqbal, 556 U.S. at 676. 2
For the reasons that follow, we conclude that the remaining 3
individual defendants, including Gagliardi, are entitled to qualified 4
immunity on all of the plaintiffs’ hostile work environment claims. 5
Because the first prong of the qualified immunity test is satisfied 6
with respect to these defendants, we need not reach the question of 7
whether reasonable officers would have perceived each individual 8
defendant’s conduct as objectively sufficient to create a hostile work 9
environment for the plaintiffs. 10
1. Claims Against Steck and Panetta 11
The plaintiffs’ evidence against defendants Steck and Panetta 12
23 The other defendants are also supervisors, but the plaintiffs have not clearly
asserted supervisory‐based claims as to them. Although the plaintiffs suggest in
their brief that Defendant Paventi was grossly negligent in his supervision of
Carlone, both their briefs and the record focus on Gagliardi’s supervisory
negligence as Chief of Police and provide minimal substantive arguments, few
allegations, and little evidence concerning Paventi’s supervision of Carlone; we
thus only perform the applicable supervisory liability analysis with relation to
Gagliardi.

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requires only brief discussion. The plaintiffs assert that each of these 1
two defendants reprimanded them for tardiness, not properly 2
maintaining their uniforms, and miscommunications over their use 3
of sick leave and personal days. Raspardo also alleges that Panetta 4
initiated an investigation into whether she lied to the NBPD about 5
her inability to speak Spanish after he heard her speak Spanish to a 6
child while on a call,24 and Russell alleges that Panetta reprimanded 7
her over the radio when other officers could hear the exchange. The 8
plaintiffs claim generally, without providing much detail, that Steck 9
and Panetta did not act similarly toward male officers who 10
committed the same offenses. 11
We cannot conclude that the defendants’ conduct was 12
motivated by the plaintiffs’ sex. We have previously recognized that 13
plaintiffs may present circumstantial proof that “adverse treatment 14
that was not explicitly sex‐based was, nevertheless, suffered on 15
24 Raspardo does not deny that she spoke in Spanish to the child. Rather, she
asserts that she only spoke a few basic words—the limit of her knowledge.

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account of sex.” Raniola, 243 F.3d at 621‐22; see also Moll v. Telesector 1
Res. Grp., Inc., Nos. 12‐4688‐cv, 13‐0918‐cv, 2014 WL 3673357, at *4 2
(2d Cir. July 24, 2014) (holding, in the Title VII context, that the 3
district court erred in failing to consider sex‐neutral conduct in light 4
of facially sex‐based conduct); Alfano, 294 F.3d at 377 (holding, in the 5
Title VII context, that “to the extent that the plaintiff relies on facially 6
neutral incidents to create the quantum of proof necessary . . . she 7
must have established a basis [at trial] from which a reasonable fact‐ 8
finder could infer that those incidents were infected by 9
discriminatory animus”). 10
Here, however, the only evidence the plaintiffs offer to 11
connect Steck’s and Panetta’s reprimands to the plaintiffs’ sex is the 12
plaintiffs’ own affidavits, which provide one‐sentence descriptions 13
of occasions on which male officers (often not identified by name) 14
allegedly committed similar infractions without a reprimand. Even 15
construing this evidence generously in favor of the plaintiffs, their 16

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comparisons fail to establish that Steck and Panetta singled out the 1
plaintiffs for adverse treatment based on their sex. See Scott, 550 U.S. 2
at 380. Steck and Panetta did not individually violate the plaintiffs’ 3
constitutional rights by creating a hostile work environment. 4
Therefore, they are entitled to qualified immunity on the plaintiffs’ 5
hostile work environment claims. 6
2. Claims Against Paventi 7
Defendant Paventi presents a closer case. Unlike Steck and 8
Panetta, the plaintiffs present evidence that Paventi engaged in some 9
conduct that was facially sex‐based. He used the nickname “J Lo” 10
for Raspardo, which Russell and others took as a reference to the 11
celebrity Jennifer Lopez and Raspardo’s buttocks, and he called 12
Spring “Tiki,” which Spring and other unidentified members of the 13
department believed was a sexualized reference to the swinging 14
hips of dashboard tiki dolls. Paventi also referred to Spring and 15
other female officers as “Rock Stars” or “Rock Star,” which Spring 16
interpreted as a reference to a strip club named “Rock Star” in a 17

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nearby town. While the meaning of these nicknames is subject to 1
dispute, for purposes of this appeal we must accept the plaintiffs’ 2
interpretation. See Jemmott, 85 F.3d at 66. Paventi’s use of these 3
nicknames means it would be possible to conclude that his actions 4
were based on the plaintiffs’ sex. See Raniola, 243 F.3d at 621‐23. 5
Nonetheless, Paventi is entitled to qualified immunity because 6
Paventi’s behavior toward the plaintiffs was not sufficiently severe 7
or pervasive to violate clearly established law. Spring and Russell 8
have presented few specific allegations and minimal facts 9
concerning actions taken by Paventi against them, and the few 10
instances they have cited, such as reprimanding Spring for misusing 11
sick leave, crediting other officers’ complaints of Russell’s poor 12
performance, and identifying them as “absent without leave” after 13
miscommunications about personal days, are insufficient as a matter 14
of law to establish a hostile work environment. See Demoret, 451 15
F.3d at 150 (holding that a supervisor’s close monitoring of 16

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plaintiff’s work, mild rudeness to her, failure to take advantage of all 1
of her abilities, and reassignment of some of plaintiff’s 2
responsibilities to other employees was not so severe as to be 3
abusive). 4
The plaintiffs make several other unrelated claims against 5
Paventi, including failing to timely investigate a complaint that an 6
NBPD officer was showing sexually explicit photographs of Officer 7
Spring to EMS employees, being aware of inappropriate videos used 8
during training but failing to take timely action, being involved in 9
an investigation of whether Raspardo spoke Spanish, and making 10
negative comments about Spring to her new employer. These 11
isolated incidents, even when construed generously in the plaintiffs’ 12
favor, are insufficient as a matter of law to create a hostile work 13
environment. 14
Raspardo and Spring claim that Paventi took a 15
disproportionate interest in ensuring that they not operate police 16

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73
vehicles while their driving privileges were suspended following car 1
accidents for which non‐defendant officers found them at fault and 2
assigned them to driver retraining.25 We see no basis upon which to 3
conclude that these actions by Paventi created a hostile work 4
environment. See Demoret, 451 F.3d at 150 (holding that a 5
supervisor’s close monitoring of plaintiff’s work “was not so severe 6
as to be abusive”). Paventi was merely enforcing disciplinary orders 7
that plaintiffs concede were justified. Therefore, even in light of this 8
evidence, Paventi is entitled to qualified immunity on their hostile 9
work environment claims. 10
3. Claims Against Gagliardi 11
The plaintiffs’ claims against then‐Chief of the NBPD, 12
Gagliardi, raise somewhat different issues. They bring claims 13
against Gagliardi alleging that his individual actions created a 14
25 Spring and Raspardo both lost driving privileges following automobile
accidents in which they were found to be at fault, but neither has presented
evidence that Paventi was involved in the evaluation of their fault in the
accidents or their loss of driving privileges.

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hostile work environment, and they also claim that he failed to 1
properly supervise or investigate the conduct of subordinate police 2
officers who allegedly sexually harassed them, particularly Carlone. 3
As described above, a supervisor cannot be held liable under a 4
theory of respondeat superior for the constitutional torts of his 5
subordinates; he must be personally involved in a constitutional 6
violation in order to generate liability under § 1983. Iqbal, 556 U.S. at 7
676. Prior to Iqbal, we held that “personal involvement” included, as 8
relevant here, “direct participation in the alleged violation[,] . . . 9
gross negligence in the supervision of subordinates who committed 10
the wrongful acts[,] and failure to take action upon receiving 11
information that constitutional violations are occurring.” Patterson, 12
375 F.3d at 229; see also Back, 365 F.3d at 127 (citing Colon, 58 F.3d at 13
873); Hayut, 352 F.3d at 753. We conclude that, even viewing the 14
relevant evidence produced by the plaintiffs generously, Gagliardi is 15
not individually liable for violating the plaintiffs’ rights under § 16

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1983. He neither created a hostile work environment through his 1
own direct actions nor was grossly negligent in his supervision or 2
investigation of subordinate officers who allegedly harassed the 3
plaintiffs on the basis of sex. 4
Although the plaintiffs claim that Gagliardi created a hostile 5
work environment through his direct actions, the record is devoid of 6
specific allegations or evidence. The only meaningful conduct 7
involves Raspardo. Gagliardi suspended Raspardo for four days 8
following a car accident in which she admitted to being at fault. 9
Gagliardi was also apparently involved—though Raspardo does not 10
explain how—in the investigation into whether Raspardo had lied 11
about her knowledge of Spanish. Finally, Gagliardi told Raspardo 12
when she was first interviewed that if she were hired by the NBPD, 13
“he was going to have sexual harassment problems with [her].” 14
Defs.’ App. 207. These three incidents are not sufficient to create a 15
genuine dispute as to whether he created a hostile work 16

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environment. Gagliardi is thus entitled to qualified immunity on the 1
plaintiffs’ direct claims. 2
The plaintiffs’ primary allegation against Gagliardi, however, 3
is that he allowed other NBPD officers, particularly Carlone, to 4
sexually harass the plaintiffs. This claim reaches a substantially 5
broader range of conduct because it encompasses treatment of the 6
plaintiffs, and others in the NBPD, by Gagliardi’s subordinates. 7
Gagliardi may not be held liable under § 1983 for grossly 8
negligent supervision of his subordinates unless those subordinates 9
have actually violated a plaintiff’s constitutional rights. Poe, 282 10
F.3d at 134 (“Because the establishment of both the violation and the 11
defense depend upon evaluating the harm inflicted and the 12
individual responsibility of the accused public official, both the 13
subordinate’s and the supervisor’s actions (or lack thereof) are 14
relevant.”). We concluded above that Steck, Panetta, and Paventi 15
did not sexually harass the plaintiffs. We also held, on the basis of 16

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the evidence presented, that a jury could conclude that Carlone 1
sexually harassed Raspardo and presumably Russell,26 but not 2
Spring. Even if Carlone’s misconduct did not amount to sexual 3
harassment, however, his treatment of all NBPD officers and 4
personnel is relevant to the extent Gagliardi was aware of it with 5
respect to Spring and any other female officers and personnel, not 6
just Russell and Raspardo. We nonetheless conclude, as explained 7
below, that Gagliardi is entitled to qualified immunity because 8
Gagliardi did not, as a matter of law, violate the plaintiffs’ 9
constitutional rights by failing to adequately supervise Carlone’s 10
interactions with them or by failing to adequately investigate and 11
respond to reports concerning Carlone’s allegedly improper 12
behavior prior to his sexual harassment of Russell and Raspardo. 13
Under our pre‐Iqbal case law, a failure to supervise 14
subordinates and adequately inquire into complaints concerning 15
26 This assumption is necessary where, as here, Carlone did not move for
summary judgment with respect to Russell’s claim of sexual harassment against
him.

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their behavior can yield supervisory liability in certain 1
circumstances. Id. at 141. As we have explained, “for a supervisor 2
to be liable under section 1983 for his failure to inquire, he must first 3
have been on notice that his subordinate was prone to commit some 4
unconstitutional or unacceptable behavior. Such notice could be 5
actual (for example, awareness of prior [constitutional] deprivations 6
in a related context), or it could be constructive . . . .” Id. In order to 7
defeat a police supervisor’s claim of qualified immunity, a plaintiff: 8
must allege sufficient facts to raise a triable issue of fact as 9
to whether [the supervisor] knew or should have known 10
that there was a high degree of risk that [the harasser] 11
would behave inappropriately with a woman during his 12
assignment, but either deliberately or recklessly 13
disregarded that risk by failing to take action that a 14
reasonable supervisor would find necessary to prevent 15
such a risk, and that failure caused a constitutional injury. 16
17
Id. at 142. The issue on appeal from a denial of qualified immunity 18
then, is whether a plaintiff “has . . . proffer[ed] sufficient evidence to 19
meet this standard.” Id. 20
The only evidence Russell and Raspardo identify suggesting 21

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that Gagliardi had reason to know that Carlone may have posed a 1
risk of sexually harassing them is that the department previously 2
investigated Carlone following allegations concerning improper 3
comments and behavior toward female officers and personnel. 4
However, the department’s 2006 investigation into allegations that 5
Carlone was harassing Officer Hayden concluded when Hayden 6
explained that she did not feel that Carlone had behaved 7
inappropriately. During the course of this investigation, it was also 8
discovered that Carlone made an inappropriate joke about a female 9
officer during roll call. Upon further investigation, the woman 10
officer confirmed that Carlone had made the inappropriate comment 11
but stated that she did not feel offended by it. Gagliardi and Paventi 12
disciplined Carlone through verbal counseling after these 13
investigations, and Paventi ordered Carlone not to pick up female 14
officers in his patrol vehicle. When Carlone continued to do so, 15
Paventi gave him another verbal warning. A December 2006 16

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80
investigation also revealed that Carlone inappropriately used the 1
MDT messaging system, an infraction for which Gagliardi 2
suspended Carlone for two days and ordered Carlone to surrender 3
two days of accrued holiday time. 4
These prior incidents of misconduct by Carlone were not 5
sufficient to put Gagliardi on notice that Carlone was likely to 6
sexually harass Russell and Raspardo. Cf. Johnson, 239 F.3d at 255 7
(holding that supervisors’ knowledge of four assaults by a teacher 8
prior to his assault of the plaintiff could constitute grossly negligent 9
supervision). The nature of these incidents and of Gagliardi’s 10
response would not permit a reasonable jury to find “gross 11
negligence or deliberate indifference,” or to conclude that 12
Gagliardi’s response created “a high risk that [Carlone] would 13
violate [Russell’s and Raspardo’s] constitutional rights.” Poe, 282 14
F.3d at 140. Russell and Raspardo also suggest that Carlone should 15
have been disciplined more harshly after these incidents and 16

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81
conclude that the lack of such discipline ultimately led to Carlone’s 1
sexual harassment of them. The fact that Gagliardi did not fire 2
Carlone earlier surely permitted Russell’s and Raspardo’s 3
harassment to occur, but this is an insufficient basis to conclude that 4
Gagliardi was grossly negligent in not terminating Carlone earlier or 5
imposing other discipline. 6
There is also no evidentiary basis to conclude that Gagliardi 7
knew that Carlone was sexually harassing Russell or Raspardo and 8
impermissibly allowed this harassment to continue. The plaintiffs 9
did not report sexual harassment of them by Carlone until after 10
Gagliardi had already placed Carlone on administrative leave. 11
Indeed, neither Russell nor Raspardo claims that Gagliardi was 12
aware of Carlone’s behavior toward her before that time. Nor have 13
they presented any evidence suggesting that Gagliardi created or 14
allowed to continue any policy of sexual harassment or otherwise 15
witnessed or approved of acts of sexual harassment of other female 16

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82
officers by Carlone. 1
It is undisputed that once Gagliardi became aware of 2
allegations of Carlone’s improper racial remarks to Officer Elias, he 3
placed Carlone on administrative leave until the conclusion of that 4
investigation. Gagliardi began a broader investigation into 5
Carlone’s conduct and contacted the prosecutor’s office once he 6
learned of Carlone’s sexual misconduct involving Russell. Finally, 7
shortly after the investigation began, Gagliardi demoted Carlone 8
from Sergeant to Patrol Officer on the ground that he “used [his] 9
supervisory position . . . to engage in an inappropriate, offensive and 10
demeaning pattern of conduct against at least . . . two officers who 11
were working under [his] command.” Defs.’ App. 68 ¶ 84, 109 ¶ 84. 12
After the investigation concluded, Gagliardi recommended that 13
Carlone be terminated. 14
Gagliardi’s response to Carlone’s behavior prior to the events 15
complained of by the plaintiffs was not grossly negligent as a matter 16

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of law, nor was his later investigation and ultimate discipline of 1
Carlone. See, e.g., Hayut, 352 F.3d at 753; Colon, 58 F.3d at 873. In 2
any event, “[r]easonable supervisors confronted with the 3
circumstances faced by [Gagliardi] could disagree as to the legality 4
of his inaction.” Poe, 282 F.3d at 146. Although Carlone’s behavior 5
toward Russell and Raspardo is surely offensive and regrettable, 6
“[t]o find [Gagliardi] ineligible for immunity solely because 7
[Carlone] acted unlawfully seems patently unfair as well as 8
illogical.” Id. at 134. 9
Gagliardi thus did not violate the plaintiffs’ constitutional 10
rights either directly or as a supervisor. He is entitled to qualified 11
immunity on the plaintiffs’ direct and supervisory liability claims of 12
sexual harassment. 13
F. The Plaintiffs’ Disparate Treatment Claims 14
Finally, the plaintiffs assert disparate treatment claims under 15
§ 1983 against the individual defendants other than Carlone. Such a 16
§ 1983 claim for sex discrimination is analyzed under the burden‐ 17

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shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 1
(1973), utilized in Title VII claims. See Demoret, 451 F.3d at 150‐51. 2
The plaintiff must first establish a prima facie case by showing that: 3
“(1) she is a member of a protected class; (2) her job performance 4
was satisfactory; (3) she suffered adverse employment action; and 5
(4) the action occurred under conditions giving rise to an inference 6
of discrimination.” Id. at 151 (citing McDonnell Douglas, 411 U.S. at 7
802). Once the plaintiff makes such a showing, the burden shifts to 8
the defendant employer to provide a legitimate, non‐discriminatory 9
reason for the action. Id. If the defendant is able to make such a 10
showing, “the burden shifts back to the plaintiff to prove 11
discrimination, for example, by showing that the employer’s 12
proffered reason is pretextual.” Id. Notably, in disparate treatment 13
cases brought pursuant to § 1983, “liability for an Equal Protection 14
Clause violation . . . requires personal involvement by a defendant, 15
who must act with discriminatory purpose.” Reynolds, 685 F.3d at 16

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204. 1
Individual liability under § 1983 for disparate treatment 2
requires us to examine each individual defendant’s actions to 3
determine whether he treated the plaintiffs disparately on the basis 4
of sex. See id. at 204‐06. This task is especially difficult here where 5
the plaintiffs’ allegations are not entirely clear as to which 6
supervisors disciplined them at particular times and for particular 7
conduct. Because most of the plaintiffs’ allegations do not assert 8
adverse employment actions, however, we find it unnecessary to 9
examine each defendant separately and instead conclude that most 10
of the plaintiffs’ claims fail on the third prong of the McDonnell 11
Douglas prima facie case. 12
As to that prong, “[a] plaintiff sustains an adverse 13
employment action if he or she endures a ‘materially adverse 14
change’ in the terms and conditions of employment.” Galabya v. 15
N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A materially 16

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adverse change in working conditions “must be more disruptive 1
than a mere inconvenience or an alteration of job responsibilities.” 2
Id. (internal citation and quotation marks omitted). Examples of 3
actionable adverse employment actions include termination of 4
employment, a demotion evidenced by a decrease in wage or salary, 5
a less important title, a loss of important benefits, or significantly 6
reduced responsibilities. See id.; see also Demoret, 451 F.3d at 151. 7
With the possible exception of the administrative discipline 8
Raspardo and Spring suffered as a result of their motor vehicle 9
accidents, none of the treatment complained of constitutes an 10
adverse employment action. Compare Galabya, 202 F.3d at 640‐41 11
(holding that assignment to a different school or classroom was not 12
an adverse employment action), and Wanamaker v. Columbian Rope 13
Co., 108 F.3d 462, 466 (2d Cir. 1997) (determining that loss of an 14
office and phone privileges was not a materially adverse 15
employment action), with Terry v. Ashcroft, 336 F.3d 128, 142‐45 (2d 16

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Cir. 2003) (deciding that a reasonable factfinder could conclude that 1
loss of firearm privileges and driving privileges for a law 2
enforcement officer was an adverse employment action). The 3
plaintiffs’ remaining claims of unequal treatment, such as minor 4
reprimands for tardiness, improper attire, and miscommunications 5
regarding use of sick leave and personal days, are not adverse 6
actions and cannot give rise to a § 1983 claim on a theory of 7
disparate treatment. 8
Assuming that Raspardo’s and Spring’s claims regarding their 9
loss of driving privileges and requirement to walk their nighttime 10
patrols constitute adverse employment actions, see Terry, 336 F.3d at 11
145, they ultimately fail on the fourth prong of the McDonnell 12
Douglas prima facie case. So, too, with Russell’s sanction concerning a 13
motor vehicle collision, a showing of disparate treatment “is a 14
recognized method of raising an inference of discrimination for the 15
purposes of making out a prima facie case.” Ruiz v. Cnty. of Rockland, 16

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609 F.3d 486, 493 (2d Cir. 2010). Raising such an inference, however, 1
requires the plaintiff to show that the employer treated him or her 2
“less favorably than a similarly situated employee” outside of the 3
protected group. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 4
2000); see also Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 5
2003) (“A plaintiff relying on disparate treatment evidence must 6
show she was similarly situated in all material respects to the 7
individuals with whom she seeks to compare herself.” (internal 8
quotation marks omitted)). 9
A similarly situated employee is one “similarly situated in all 10
material respects” to the plaintiff. Graham, 230 F.3d at 39 (internal 11
quotation marks omitted). This does not mean that the plaintiff and 12
the compared co‐employees must be identical. Id. at 40. In the 13
context of employee discipline, however, the plaintiff and the 14
similarly situated employee must have “engaged in comparable 15
conduct,” that is, conduct of “comparable seriousness.” Id. (internal 16

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quotation marks omitted). 1
Here, the plaintiffs assert that male officers who were 2
involved in similar car accidents were treated more favorably 3
because the male officers were not disciplined as harshly as the 4
plaintiffs. We address each plaintiff’s allegations concerning her 5
alleged unequally harsh treatment in turn. 27 6
Russell claims that she was treated unfairly after a minor 7
collision with an “Officer Sloate.” She maintains that her patrol car 8
27 We acknowledge that this Court has at times described the issue of whether an
alleged comparator is sufficiently similarly situated to a plaintiff in the Title VII
context as “a question of fact for the jury.” Mandell, 316 F.3d at 379. As such, it is
unsettled whether we can review a district court’s determination that genuine
disputes of material fact preclude granting summary judgment on a plaintiff’s
disparate treatment claims because of a lack of comparator evidence. Cf.
Plumhoff, 134 S. Ct. at 2019 (“[D]eciding legal issues . . . is a core responsibility of
appellate courts, and requiring appellate courts to decide such issues is not an
undue burden.”). We note again that Title VII frameworks do not always fit
neatly into § 1983 claims. In the context of § 1983 claims, denying appellate
review of the “factual question” of whether an alleged comparator is sufficiently
similar to a plaintiff for the purposes of a disparate treatment claim would
effectively insulate all such claims from review, exposing government officials to
discovery and trial on only these claims. Thus, we may address it on appeal.
Here, the complete absence of symmetrical comparator evidence compels the
grant of summary judgment on these claims. See Scott, 550 U.S. at 380 (holding
that this Court may resolve the legal question concerning the alleged
constitutional violation, even if such resolution relies on a fact‐bound inquiry,
and need not accept plaintiffs’ allegations where they are contradicted by the
record).

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did not collide with Officer Sloate’s patrol car, and alleges that 1
Carlone assisted Officer Sloate in writing and editing his statement 2
concerning the accident. She admits that she received a 3
“Supervisor’s Warning” from an Officer Woodruff, not a defendant 4
in this case, who investigated the accident. Defs.’ App. 56 ¶ 47, 105‐ 5
106 ¶ 47. Russell does not allege that Officer Woodruff acted 6
improperly in his investigation or imposition of discipline, and this 7
type of punishment appears consistent with the other punishments 8
meted out for similar accidents. Russell also failed to file a grievance 9
concerning discipline imposed following this incident. Russell 10
appears to claim only that Carlone engaged in disparate treatment 11
by assisting Officer Sloate in writing and editing his statement. This 12
conduct does not constitute an adverse action, and there is no 13
allegation or evidence that Carlone failed to assist other officers in 14
writing and editing statements and thus acted disparately toward 15
Russell. Therefore, Russell has not established that Carlone treated 16

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her disparately on the basis of sex in this instance.28 Liability cannot 1
be imputed to Gagliardi without an underlying constitutional 2
violation. See Poe, 282 F.3d at 134, 142. Thus, the defendants have 3
not violated Russell’s constitutional right to equal protection on this 4
basis and are entitled to qualified immunity. 5
As to Raspardo’s claim, the undisputed evidence is that her 6
motor vehicle accident was extremely severe. The accident caused 7
$14,000 of damage to her police vehicle and substantial damage to 8
the other vehicle involved, whose occupants were a mother and 9
child taken to the hospital for emergency care, and kept Raspardo 10
out of work with injuries until May 2, 2008. Raspardo does not 11
appear to contend on appeal that she was not at fault for this 12
accident or that the damage caused by the accident was not extreme; 13
instead, she argues that the suspension of her driving privileges and 14
requirement that she walk a beat constituted disparate treatment. 15
28 We offer no conclusion as to this behavior in the context of Russell’s sexual
harassment claim against Carlone, which continues in the district court.

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Raspardo has set forth no similarly situated comparator to permit 1
this Court to conclude that the defendants treated Raspardo 2
disparately on the basis of her sex following her car accident. The 3
accident reports submitted by plaintiffs delineating other incidents 4
describe accidents that occurred at low speeds and resulted in 5
minimal property and automobile damage and no injuries. The 6
accident reports presented, and the discipline for the officers 7
involved, are not sufficiently similar to Raspardo’s serious accident 8
to support disparate treatment.29 Raspardo has thus failed to 9
identify a sufficiently similar comparator to establish as a matter of 10
law that she was disparately treated following her accident. Because 11
there was no underlying constitutional violation, liability cannot be 12
29 Raspardo alleges that an “Officer Bleau” drove through a red light, “totaling
another car that had a family inside [the vehicle],” but that he never had to go to
driver retraining or was disciplined. We cannot conclude from this vague
statement that “Officer Bleau” was sufficiently similarly situated to Raspardo.
Additionally, there is no evidence substantiating this claim in the record.
Although we must view the facts in the light most favorable to the plaintiffs and
take the allegations and facts as adduced by the plaintiffs, we need not accept
conclusory allegations that are either contradicted by or lack support in the
record. See Scott, 550 U.S. at 380.

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imputed to Gagliardi or imposed on the other individual 1
defendants. Therefore, the defendants have not violated Raspardo’s 2
constitutional rights and are entitled to qualified immunity on this 3
claim. 4
Spring’s claim presents the closest case. Spring admits that 5
she was involved in an accident in her patrol car in February of 2008 6
when she struck the rear of a vehicle. After a “Sergeant Portalatin” 7
investigated the accident and determined (with the help of Spring’s 8
own admission) that Spring was at fault for the accident, a “Captain 9
Beatty” issued Spring a written reprimand and informed her that 10
she must participate in driving training administered by the 11
department.30 Spring admits that, after Beatty’s reprimand, she 12
“could not operate a police car until that training was completed” 13
and that, “[a]s a result of being unable to operate a police car, [she] 14
had to walk a beat.” Defs.’ App. 61 ¶ 56, 107 ¶ 56. Spring does not 15
30 It appears that Defendant Steck had limited involvement in this investigation
and ensuing disciplinary action; Spring does not cite his behavior as
objectionable.

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appear to challenge the findings of fault, which were made by 1
officers who are not defendants. She instead contends that she was 2
forced to walk a patrol on the fourth shift in an area of high crime 3
and that her supervisors repeatedly ensured that she did not use a 4
police vehicle. She attributes this alleged punishment to Defendant 5
Paventi, who the evidence indicates gave specific instructions to the 6
supervisory staff that they would walk beats if post‐accident beat 7
officers were found in patrol cars, and her direct supervisor, not a 8
defendant in this case, who interpreted Paventi’s instruction as 9
applying to Spring. She emphasizes that she was the only officer 10
ever required to walk a beat on the late‐night fourth shift. Because 11
Spring concedes that an “Officer Beatty” assigned the punishment in 12
this case and specifically told Spring that she would not be 13
permitted to drive a police vehicle and would have to walk a beat 14
until she completed driver retraining, we understand her to be 15
making a claim of unequal enforcement of penalties against Paventi. 16

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Spring has failed, though, to identify a sufficiently similarly 1
situated male comparator with whom to compare Paventi’s penalty 2
enforcement. Spring has identified no male officer who was 3
specifically admonished, as she admits she was, by a non‐defendant 4
officer not to ride in a police vehicle and required to walk a beat, and 5
who was subsequently specifically permitted by Paventi to avoid 6
this punishment. Indeed, the alleged similar comparators, for the 7
most part, were not even supervised by Paventi, and Spring does 8
not claim that Paventi failed to enforce their punishments against 9
them or otherwise generally permitted post‐accident officers to ride 10
in police vehicles during this time. Thus, even viewing the evidence 11
most favorably to Spring, Spring has failed to establish that Paventi 12
treated her more harshly with respect to enforcing her driver 13
retraining and walking a beat penalties assigned by another officer.31 14
31 Although the plaintiffs allege generally on appeal that male officers were not
required to walk beats following car accidents, this assertion is partially
contradicted by Spring’s own admission that at least one male officer (“Officer
Jared Barseleau”) was required to walk a beat after being in car accidents, and

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As such, Paventi did not violate Spring’s constitutional rights and is 1
entitled to qualified immunity. Because we have held that there was 2
no underlying constitutional violation, there is also no supervisory 3
liability. See Poe, 282 F.3d at 134. Thus, Gagliardi is entitled to 4
qualified immunity on these claims. 5
Because the plaintiffs have not established that the individual 6
defendants treated the plaintiffs differently than they treated 7
similarly situated male officers, the defendants have not violated the 8
plaintiffs’ constitutional rights as a matter of law, and the plaintiffs’ 9
disparate treatment claims fail. The defendants are therefore 10
entitled to qualified immunity on these claims.32 11
CONCLUSION 12
For the foregoing reasons, we AFFIRM in part and REVERSE 13
the undisputed evidence that beat officers were assigned police vehicles 83% of
the time.
32 Because Russell and Spring have failed to provide any information about
allegedly similarly situated comparators with reference to Gagliardi’s denial of
their requests for light duty, they have failed to establish disparate treatment on
that basis and we need not address these allegations further.

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in part the district court’s denial of the individual defendants’ 1
motions for summary judgment and REMAND for proceedings 2
consistent with this opinion. Except for Raspardo’s hostile work 3
environment claim against Carlone, the five individual defendants 4
are entitled to qualified immunity on the § 1983 claims. 5
It is worth noting, once again, that this appeal only considers 6
the hostile work environment and disparate treatment claims 7
against the individual defendants under 42 U.S.C. § 1983. The 8
claims against the City of New Britain and its police department 9
under Title VII and § 1983 continue before the district court. 10
Russell’s hostile work environment claim against Carlone under 11
§ 1983 also remains pending in the district court as Carlone did not 12
seek summary judgment as to that claim. 13

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