Burns v. City of Utica , 590 F. App'x 44 ( 2014 )


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  • 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.
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    Julianne Burns,
    Plaintiff-Appellant,
    Christopher Burns,
    Plaintiff,
    -v.-                                      No. 14-706-cv
    City of Utica, Linda Fatata, Armond Festine,
    and Michael Knapp,
    Defendants-Appellees.*
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    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
    4
    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
    5
    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’
    6
    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
    8
    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
    10
    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
    14