
    Arline MAGNUSSON, Plaintiff-Appellant, v. COUNTY OF SUFFOLK, Kevin Spence, Robert Beck, each in their individual and official capacities, Defendants-Appellees.
    16-1876-cv
    United States Court of Appeals, Second Circuit.
    May 11, 2017
    FOR PLAINTIFF-APPELLANT: Alexander T. Coleman, Michael J., Borrelli, Pooja Bhutani, Borrelli & Associates, PLLC, Great Neck, NY.
    FOR DEFENDANTS-APPELLEES: Dennis M. Brown, Suffolk County, Attorney, Luz Adriana Lopez, Assistant, County Attorney, for the County of Suffolk, Haup-pauge, NY.
    
      PRESENT: José A. Cabranes, Raymond J. Lohier, Jr., Circuit Judges. Katherine B. Forrest, District Judge.
    
    
      
       Judge Katherine B. Forrest, of the United States District Court for the Southern District of New York, sitting by designation.
    
   SUMMARY ORDER

Arline Magnusson (the “Plaintiff’), a custodial worker in the Suffolk County Department of Public Works (“DPW”), appeals from a May 17, 2016 decision of the district court granting summary judgment to the County of Suffolk (the “County”), Kevin Spence, and Robert Beck (collectively, the “Defendants”). On appeal, she argues that the district court erred in granting summary judgment on her Title VII hostile work environment claim against the County and her Equal Protection Clause claim against the Defendants pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

STANDARD

We review de novo orders granting summary judgment pursuant to Rule 56 of the Federal Rules Civil Procedure. Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). A genuine dispute of material fact exists “where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s favor.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (internal quotation mark omitted). We are required to resolve all ambiguities and draw all inferences in favor of the nonmov-ing party. Id.

DISCUSSION

As an initial matter, we agree with the district court that Plaintiffs claims that are premised on sexual harassment are timely under both Title VII and § 1983. See Special App’x at 13-15. We also agree that that the Plaintiffs claims that are premised on sexual orientation harassment are timely under Title VII and untimely under § 1983. See id. We address only the Plaintiffs timely claims on this appeal.

A. Title VII Claim

We need not reach the question of whether the County’s conduct constitutes sex discrimination that would be covered under Title VII because the Plaintiff failed to follow the County’s internal grievance procedures. “An employer may defend against [a hostile work environment claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.” Pa. State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

As the district court explained, the County maintained, a sexual harassment policy for the entire term of the Plaintiffs employment. Special App’x at 20. The Plaintiff received documents instructing her on the DPW’s sexual harassment reporting procedures from both the DPW and her own union. Id. And Plaintiff never provided appropriate County employees with any notice of the alleged incidents of harassment before initiating the EEOC action. Id. Accordingly, even if the Plaintiff had an otherwise viable hostile work environment claim, the County is protected from Title VII liability under this affirmative defense.

There are instances where an employee’s failure to report sexual harassment can be excused if the employee has a credible fear of retaliation or believes that the complaint would be futile. See, e.g., Leopold v. Baccarat, 239 F.3d 243, 246 (2d Cir. 2001). On this record, we conclude that Plaintiff’s conclusory assertions that she feared retaliation or that complaining would be futile “fail as a matter of law to constitute sufficient evidence to establish that her fear was ‘credible.’” Id. (quoting Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (1999)).

B. Equal Protection Claim

We also agree with the district court that the Plaintiff does not have a viable hostile work environment claim under § 1983.. The incidents in 2003 and 2012, while inappropriate, occurred nine years apart, and the Plaintiff'has not presented evidence that these incidents unreasonably interfered with her job performance, see Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), or were “sufficiently severe .,. to alter the conditions of [the Plaintiffs] employment and create an abusive working environment, ” Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015).) Accordingly, we conclude that the Plaintiff does not have a viable hostile work environment claim under 42 U.S.C. § 1983.

CONCLUSION

We have considered all of the arguments raised by Plaintiff and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court. 
      
      . The Plaintiff has abandoned her retaliation and adverse employment action claims.
     