Burns v. City of Utica

14-706-cv
Burns v. City of Utica
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal
Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the
Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not
represented by counsel.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 7th day of November, two thousand fourteen.
PRESENT:
Ralph K. Winter,
John M. Walker, Jr.,
José A. Cabranes,
Circuit Judges.
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Julianne Burns,
Plaintiff-Appellant,
Christopher Burns,
Plaintiff,
-v.- No. 14-706-cv
City of Utica, Linda Fatata, Armond Festine,
and Michael Knapp,
Defendants-Appellees.*
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FOR PLAINTIFF-APPELLANT: Frank Policelli, Utica, NY
FOR DEFENDANTS-APPELLEES
CITY OF UTICA, LINDA FATATA,
ARMOND FESTINE: Zachary C. Oren, Utica, NY
*
We direct the Clerk of Court to amend the caption as noted.
FOR DEFENDANT-APPELLEE
MICHAEL KNAPP: Ronald G. Dunn, Albany, NY
Appeal from a judgment of the United States District Court
for the Northern District of New York (Frederick J. Scullin,
Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff Julianne Burns appeals from the District Court’s
February 20, 2014, judgment granting defendants’ motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and
(6). Specifically, Burns appeals the dismissal of six claims:
(1) a claim under New York State Executive Law § 296; (2) a Title
VII sexual harassment claim against the City of Utica, see 42
U.S.C. §§ 2000e et seq.; (3) a Title VII retaliation claim
against the City of Utica; (4) a Section 1983 gender
discrimination claim against defendant Michael Knapp, see 42
U.S.C. § 1983; (5) a Section 1983 gender discrimination claim
against the City of Utica; and (6) a Section 1985 claim,
asserting that the individual defendants and others conspired to
violate Burns’s constitutional rights, see 42 U.S.C. § 1985.1
The District Court dismissed the N.Y. Exec. Law § 296 claim under
Rule 12(b)(1) and all other claims under Rule 12(b)(6).
1
Burns chose not to appeal the dismissal of several other claims asserted in
her Complaint.
2
BACKGROUND
The City of Utica (“City”) has employed Burns as a
firefighter since June 3, 2002. Burns alleges that, in the
spring of 2010, another firefighter, Michael Knapp, sexually
assaulted her in her workplace. On September 8, 2010, Burns
filed a formal complaint with Russell Brooks, Chief of the Utica
Fire Department. The City’s Office of Corporation Counsel
conducted an investigation into the incident. At the time of the
investigation, defendant Linda Fatata was the City’s Corporation
Counsel, and defendant Armond Festine was Assistant Corporation
Counsel. Andrew LaLonde was hired as a Special Assistant
Corporation Counsel.
In the fall of 2010, Dr. Julia Grant, Ph.D., diagnosed Burns
as suffering from Post-Traumatic Stress Disorder (“PTSD”) caused
by the assault. On October 12, 2010, Burns applied for
disability benefits pursuant to § 207(a) of the New York General
Municipal Law. On January 26, 2011, at the City’s request, Dr.
Lawrence Farago conducted a psychiatric evaluation of Burns. Dr.
Farago concluded that Burns did not suffer from PTSD and that she
could return to work. On February 23, 2011, Burns’s claim for
disability benefits under § 207(a) was denied by the City. Burns
demanded, pursuant to § 10 of the Collective Bargaining
Agreement, to have an independent arbitrator review the denial.
3
On March 12, 2012, the arbitrator issued his opinion and award,
which upheld the denial of § 207(a) benefits.
Meanwhile, the City pursued disciplinary charges against
Knapp. On September 17, 2010, shortly after Burns filed her
complaint, Chief Brooks placed Knapp on administrative leave.
Under the Collective Bargaining Agreement, Knapp was entitled to,
and asked for, a hearing before an independent arbitrator to
adjudicate the allegations made against him by Burns. On March
31, 2012, the arbitrator concluded that the City had failed to
meet its burden to prove by a preponderance of the evidence that
Knapp had sexually assaulted Burns. Accordingly, Knapp was
restored to his position with the Fire Department. On August 10,
2012, the City directed Burns to return to work. Burns asserts
that, once she returned to work, she suffered multiple anxiety
attacks as a result of coming into contact with Knapp during the
course of her duties.
DISCUSSION
The District Court’s dismissal of a complaint under Fed. R.
Civ. P. 12(b)(1) or 12(b)(6) is reviewed de novo. See Jaghory v.
N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
Dismissal of a case for lack of subject matter jurisdiction under
Rule 12(b)(1) is proper “when the district court lacks the
statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a
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Rule 12(b)(6) motion to dismiss, the complaint must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Title VII Sexual Harassment
The District Court dismissed Burns’s Title VII sexual
harassment claim against the City under Rule 12(b)(6). The
alleged harasser in this case, Knapp, was Burns’s co-worker.
“Where an employee is the victim of sexual harassment, including
harassment in the form of a hostile work environment, by non-
supervisory co-workers, an employer’s vicarious liability depends
on the plaintiff showing that the employer knew (or reasonably
should have known) about the harassment but failed to take
appropriate remedial action.” Petrosino v. Bell Atl., 385 F.3d
210, 225 (2d Cir. 2004); see also Kotcher v. Rosa & Sullivan
Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992) (an employer
may only be held liable for harassment by a co-worker when the
employer “either provided no reasonable avenue for complaint or
knew of the harassment but did nothing about it”).
Appellant’s complaint fails to plausibly allege that the
City failed to act conscientiously in response to her complaint.
It is undisputed that the City suspended Knapp, albeit with pay,
soon after receiving Burns’s complaint of harassment. Knapp
returned to work only after the independent arbitrator appointed
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pursuant to the Collective Agreement concluded that the City had
failed to prove the charges against Knapp. Appellant’s complaint
attacks this decision as against the evidence and the product of
a conclusorily-alleged conspiracy against her involving Fatata,
Festine, LaLonde, and Farago. However, neither the face of the
arbitration decision nor the facts alleged in the complaint
plausibly support this claim. In fact, the City charged Knapp
with, inter alia, sexually assaulting Burns, presented evidence
of the assault, but lost the arbitration.
Appellant asserts that the City’s efforts were illusory and
that the disciplinary hearing against Knapp was “irreparably
flawed by the conflict of interest of Festine, who had everything
to gain by disproving” Burns’s allegation of sexual harassment.
Burns attacks Festine’s role as the City representative both at
Burns’s disability hearing and Knapp’s disciplinary hearing, his
alleged animosity toward her husband, and his earlier
representation of Farago in a divorce proceeding.
None of these supposed conflicts is sufficient to constitute
a failure by the City to respond appropriately to appellant’s
claims of sexual harassment. In fact, the City brought charges
against Knapp and sought his termination. Only two facts are
alleged in support of the claim of an illusory response by the
City. First, Burns alleges that during his opening statements in
both the Knapp and disability hearings, Festine questioned Burns’
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credibility.2 However, in Knapp’s disciplinary hearing, the
City called Burns as a witness and argued for Knapp’s
termination. See id. 175. The City also argued that Knapp was
not credible. Id. 174 (“While Firefighter Knapp has denied the
incident it is evident from his evasive and untruthful responses
. . . that an incident took place . . . .”). Second, Burns
alleges that Festine failed to interview her during the
investigation. However, the City had both her complaint and the
tape of Burns’s recorded call to Knapp that is alleged to have
incriminated him and was the strongest evidence against him.
Burns has pointed to no evidence alleged to have been undisclosed
as a result of the City’s failure to interview.
While Festine represented the City at both arbitration
hearings, Burns does not plausibly allege that this resulted in
the lack of a conscientious response by the City. Both the
disability and disciplinary proceedings were ultimately decided
by neutral arbitrators. Burns alleges at length that the
arbitrators disregarded the evidence in both cases, but this
action is not the forum in which to challenge arbitration
decisions. See, e.g., Boguslavsky v. Kaplan, 159 F.3d 715, 720
(2d Cir. 1998) (collateral estoppel precludes relitigation of
issues decided in arbitration).
2
Burn’s credibility was contested in the Knapp proceeding because she was the
principal witness against Knapp and had not reported the assault, which
occurred in the Spring, until the Fall.
7
Accordingly, Burns has failed to plead sufficient facts to
support the claim that the City conducted a “sham” investigation
of her claims of sexual harassment and, therefore, “failed to
take appropriate remedial action.” Id. at 65.
B. Title VII Retaliation
The District Court also dismissed, under Rule 12(b)(6),
Burns’s Title VII retaliation claim against the City. Such
claims are analyzed under the burden-shifting analysis set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which
requires that, to establish a prima facie case, the plaintiff
must show: “(1) participation in a protected activity; (2) that
the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the
protected activity and the adverse employment action.” Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation
marks omitted). Although Burns’s burden at the first stage is de
minimis, the District Court dismissed the retaliation claim on
the grounds that Burns had failed to plead facts that would
“plausibly suggest” that the City “took any adverse action
against her.”
An adverse employment action is a “materially adverse change
in the terms and conditions of employment.” Sanders v. N.Y. City
Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (internal
quotation marks omitted). “To be materially adverse, a change in
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working conditions must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.”
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008).
“Examples of such a change include termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to
a particular situation.” Id.; see also Williams v. R.H.
Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004).
While it is undisputed that Burns was not terminated or
demoted, Burns asserts that she suffered other adverse actions.
These other actions, however, are neither adverse under Title
VII, nor attributable to any action taken by the City. Burns
asserts that she was: (1) directed to return to work under
unsuitable conditions in April 2011, which resulted in her taking
an unwanted, unpaid leave of absence from the Fire Department;
(2) placed in a “negative sick leave situation” as a result of
the City’s denial of her disability claim; and (3) required to
undergo “a certain amount of remedial training before returning
to work. But Burns was required to return to work at her
previous position only after an independent arbitrator determined
that she was not disabled. That decision was not an adverse
employment action under Title VII. Moreover, the fact that Burns
lost sick leave pay was not the result of any retaliation by the
9
City -- the days of work she missed were not covered by sick
leave because the arbitrator determined that Burns was not
disabled. Finally, the fact that Burns was required to undergo
remedial training after missing so much work was not an adverse
action. Rather, requiring such training was a reasonable safety
precaution to ensure that Burns could perform her duties as a
firefighter after being absent from work for several months.
C. Section 1983 Claim Against Knapp
The District Court also dismissed, under Rule 12(b)(6),
Burns’s Section 1983 claim against Knapp on the grounds that
Knapp was not acting under color of state law when he allegedly
assaulted Burns. “To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by persons acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). “[G]enerally, a
public employee acts under color of state law while acting in his
official capacity or while exercising his responsibilities
pursuant to state law.” Id. at 50.
Burns asserts that the fact that Knapp and Burns were
working at the firehouse the night of the alleged assault is
sufficient to establish that Knapp was acting under the color of
state law. However, “[i]t is axiomatic that under color of law
means pretense of law and that acts of officers in the ambit of
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their personal pursuits are plainly excluded.” Monsky v.
Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (internal quotation
marks excluded); see also Wyatt v. Cole, 504 U.S. 158, 161 (“The
purpose of § 1983 is to deter state actors from using the badge
of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such
deterrence fails.” (emphasis added)). Because “there is no
bright line test for distinguishing personal pursuits from
activities taken under color of law,” we look to “the nature of
the officer’s act” to determine whether he acted under color of
state law, not just his “status” of being on or off official
duty. Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994)
(internal quotation marks omitted).
Here, Knapp’s alleged sexual assault of Burns, if proven,
was palpably a personal pursuit entirely unrelated to his duties
as a firefighter. Because the conduct alleged was therefore not
committed under the color of state law, the District Court’s
dismissal of Burns’s Section 1983 claim against Knapp is
affirmed.
D. Section 1983 Claim Against the City
The District Court also dismissed, under Rule 12(b)(6),
Burns’s Section 1983 claim against the City. To state a Section
1983 claim against a municipality, a plaintiff must allege that a
governmental custom, policy, or usage caused her injury. See
11
Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658,
694 (1978); see also Jones v. Town of E. Haven, 691 F.3d 72, 80
(2d Cir. 2012). “[I]t is not enough for a § 1983 plaintiff
merely to identify conduct properly attributable to the
municipality. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the moving force
behind the injury alleged.” Bd. of Cnty. Comm’rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 404 (1997).
Here, Burns asserts that the flawed investigation conducted
by defendants Festine and Fatata into her sexual assault claim
was a violation of her rights under the Equal Protection Clause.
However, as discussed, she has not sufficiently alleged that the
investigation into her assault claim was flawed, and, therefore,
cannot plausibly suggest that a governmental custom, policy, or
usage on the part of the City of Utica injured her.
E. Section 1985 Claim
The District Court also dismissed Burns’s Section 1985 claim
against the individual defendants. The complaint names Festine,
Fatata, Farago, and LaLonde as co-conspirators in a plan to
conduct a purposely inadequate investigation into Burns’s sexual
harassment claim.
The District Court correctly stated that Burns’s claim would
fail because the complaint recites only legal conclusions and
does not allege “facts that plausibly suggest that Defendants
12
engaged in any conspiracy to violate her right to the equal
protection of the laws.” The complaint alleges no specific
interactions among the supposed co-conspirators to suggest that
they had an agreement to deprive Burns of her rights. Moreover,
as discussed above, the complaint also fails to sufficiently
suggest that the alleged co-conspirators engaged in conduct
amounting to an equal protection violation. See 42 U.S.C. §
1985(3) (a claim under this subsection must show an overt act in
furtherance of a conspiracy to deprive a person of equal
protection of the laws).
F. N.Y. Exec. Law § 296
The District Court dismissed Burns’s claim under N.Y. Exec.
Law § 296 sua sponte for lack of subject matter jurisdiction, on
the grounds that Burns already pursued that claim with the New
York State Division of Human Rights (“NYSDHR”) and therefore,
under New York law, could not bring the same claim in federal
court. See Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d
Cir. 2013). The jurisdictional bar does not apply if the NYSDHR
dismissed the claim for administrative convenience, untimeliness,
or annulment of the election of remedies. See N.Y. Exec. Law §
297(9).
As Burns points out, the NYSDHR did, in fact, dismiss her
complaint for administrative convenience on May 10, 2012.3
3
Neither party filed the dismissal order with the district court, and
defendants did not raise the jurisdictional question in their motion to
dismiss.
13
Hence, the District Court’s order dismissing Burns’s § 296 claim
was based on an incorrect factual premise. However, the § 296
claim is a question of state law and lacks an independent basis
for federal jurisdiction. Because we affirm the dismissal of
Burns’s federal claims, we now decline to exercise supplemental
jurisdiction over her § 296 claim. See 28 U.S.C. § 1367(c)(3).
CONCLUSION
We have reviewed the record and the parties’ arguments on
appeal. For the reasons set out above, the District Court’s
Order dismissing Burns’s complaint is affirmed.
FOR THE COURT,
Catherine O’Hagan Wolfe
Clerk of Court
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