     15-2669
     Fox v. County of Yates, et al.

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of September, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                DEBRA A. LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       PATRICIA A. FOX,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-2669
16
17       COUNTY OF YATES, JOHN C. GLEASON, both
18       individually and in his official
19       capacity as UnderSheriff Yates County,
20       RONALD G. SPIKE, both individually and
21       in his official capacity as Sheriff of
22       Yates County, CLAY RUGAR, both
23       individually and in his official
24       capacity as Jail Administrator of the
25       Yates County Jail,
26                Defendants-Appellees,
27
28       - - - - - - - - - - - - - - - - - - - -X

                                                  1
1
2    FOR APPELLANT:               JOHN J. LADUCA, (Anthony J.
3                                 LaDuca, on the brief) LaDuca Law
4                                 Firm, Rochester, New York.
5
6    FOR APPELLEES:               GERARD E. O’CONNOR, Lippman
7                                 O’Connor, Buffalo, New York.
8
9        Appeal from judgments of the United States District

10   Court for the Western District of New York (Telesca, J. and

11   Payson, M.J.).

12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.

15       Patricia A. Fox appeals from judgments of the United

16   States District Court for the Western District of New York

17   (Telesca, J. and Payson, M.J.) granting defendants’ motion

18   for summary judgment on her malicious prosecution and sex

19   discrimination claims and denying her access to secret grand

20   jury minutes.    We assume the parties’ familiarity with the

21   underlying facts, the procedural history, and the issues

22   presented for review.    We affirm on the grounds that: 1) her

23   malicious prosecution claim fails because her indictment was

24   supported by probable cause; 2) Fox has failed to make a

25   strong particularized showing of need for the grand jury

26   minutes; and 3) she failed to establish that it would have

27   been futile to apply for promotions as part of her sex

28   discrimination claim.
                                    2
1        Fox is a correctional officer for the Yates County Jail

2    (the “Jail”).   A Jail policy required employees to get a

3    supervisor’s signature to approve any overtime, even if that

4    overtime had already been completed.     In 2007, Fox’s

5    superiors discovered that she had surreptitiously added time

6    to her timecards after getting a supervisor’s signature on

7    at least four separate occasions.   A Yates County grand jury

8    indicted Fox for falsifying business records and petit

9    larceny, and at trial she was acquitted of all charges.

10       Fox claims she did in fact work the overtime that she

11   secretly added to her timecards, and her claim is borne out

12   by an administrative finding which came after her acquittal.

13   She now argues that her conduct may have violated the Jail

14   policy, but that because she actually worked the hours, she

15   did not violate New York criminal law.     She claims that the

16   defendants conflated the Jail policy and the relevant New

17   York criminal law (Penal Law § 175.10) in their testimony to

18   the grand jury, and that they did so in order to secure her

19   indictment.

20       Fox brought a malicious prosecution action against

21   defendants, and now appeals from the dismissal of her claim

22   on summary judgment.   Under New York law, probable cause

23   defeats a malicious prosecution claim. A grand jury

24   indictment creates a presumption of probable cause, and a

                                   3
1    grand jury indicted Fox.    The presumption of probable cause

2    thereby created, “may only be rebutted by evidence that the

3    indictment was procured by ‘fraud, perjury, the suppression

4    of evidence or other police conduct undertaken in bad

5    faith.’”   Savino v. City of New York, 331 F.3d 63, 72 (2d

6    Cir. 2003) (quoting     Colon v. City of New York, 60 N.Y.2d

7    78, 83 (1983)) (emphasis in original).    While we review

8    grants of summary judgment de novo and draw all factual

9    inferences in favor of the nonmoving party, Fox bears the

10   burden of proof in rebutting the presumption of probable

11   cause. Id. at 71, 73.

12       Fox contends that defendants lied when they failed to

13   draw a distinction between the Jail policy and New York

14   criminal law in their testimony that employees were not

15   entitled to overtime without supervisory approval.     It is

16   not at all clear from the record that the defendants

17   testified falsely–-Fox herself describes the statements at

18   one point as a “misleading oversimplification.”    Appellant

19   Br. at 20. Even if the witnesses did testify falsely, Fox

20   must establish that they did so intentionally in order to

21   establish the “fraud, perjury, [or] suppression of evidence”

22   needed to overcome the presumption of probable cause.

23   Savino, 331 F.3d at 72.



                                     4
1           This she cannot do.   Fox does not point to evidence

2    that the defendants were aware of the legal distinction she

3    draws, and her brief even states that at least one of the

4    defendants “did not fully understand the elements of the

5    crime(s) he was investigating.” Appellant Br. at 33.     Fox

6    also argues that one source of the confusion was defendants’

7    failure to consider the impact of the Fair Labor Standards

8    Act.    We take no position on whether Fox is correct about

9    FLSA’s effect, but a failure to consider the impact of

10   federal labor law bespeaks mistake rather than bad faith.

11          And regardless of what was said about whether failure

12   to actually work the hours was part of the crime charged,

13   the District Attorney, the defendants, and the grand jurors

14   would all have been fully justified in believing that Fox

15   did not in fact work those hours.     Fox concedes that she

16   deliberately added overtime to her timecard after approval

17   by a sergeant on four occasions.     When she appeared before

18   the grand jury, she implausibly testified that she was not

19   aware that overtime required approval by a supervisor, even

20   though she regularly got approval by supervisors for

21   overtime.    From that, one could reasonably infer that Fox

22   did not in fact work the hours and had surreptitiously added

23   time to her cards in order to take money she was not

24   entitled to.

                                     5
1        The District Attorney reviewed the evidence in the case

2    along with information provided to her by Fox’s counsel, and

3    she concluded that Fox did not work the overtime and sought

4    an indictment from the grand jury.   Fox does not allege that

5    the District Attorney conspired with the defendants.     There

6    is accordingly no genuine issue of material fact as to

7    whether the defendants procured the indictment through

8    fraud, perjury, or other police misconduct, and Fox’s

9    malicious prosecution claim was therefore properly dismissed

10   on summary judgment.

11       Fox also appeals from an order by the magistrate judge

12   denying her access to the District Attorney’s charge to the

13   grand jury, which she contends would help prove her

14   malicious prosecution claim. Given the significant public

15   interest in maintaining the secrecy of grand jury

16   proceedings, Fox must make a showing of a particularized

17   need in order to obtain the grand jury charge.   See United

18   States v. Sobotka, 623 F.2d 764, 767-68 (2d Cir. 1980);

19   Douglas Oil Co. of California v. Petrol Stops Nw, 441 U.S.

20   211, 222 (1979).

21       Fox already has access to all the grand jury testimony;

22   she now only seeks the District Attorney’s   charge.    The

23   magistrate judge found that Fox had “failed to make any

24   showing” that the District Attorney’s charge would support

                                  6
1    her malicious prosecution claim.   Fox v. County of Yates,

2    922 F. Supp. 2d 424, 433 (W.D.N.Y. 2013).   The District

3    Attorney is not a defendant; Fox has offered no facts to

4    suggest that the District Attorney conspired with the

5    defendants or acted in bad faith; and a state court already

6    reviewed the grand jury charge in camera and found it

7    legally sufficient.

8        “The discretion of a trial court in deciding whether to

9    make public the ordinarily secret proceedings of a grand

10   jury investigation is one of the broadest and most sensitive

11   exercises of careful judgment that a trial judge can make.”

12   In re Petition of Craig, 131 F.3d 99, 104 (2d Cir. 1997).

13   The magistrate judge’s ruling was well within that

14   discretion.

15       Finally, Fox appeals the grant of summary judgment

16   against her on her sex discrimination claim.   To succeed on

17   a discriminatory failure to promote claim, a plaintiff must

18   ordinarily actually apply for the promotion or position.

19   Brown v. Coach Stores, Inc., 163 F.3d 706, 709-10 (2d Cir.

20   1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

21   792, 802 (1973)).

22       Fox never applied for any position or promotion.     She

23   instead seeks to take advantage of an exception to the

24   requirement that applies when seeking a promotion would have

                                  7
1    been futile. “But the exception is narrow and does not

2    pertain simply because an employee asserts that an ‘aura of

3    discrimination’ in the workplace somehow discouraged her

4    from filing a formal application.   Rather, to be excused

5    from the specific application requirement, an employee must

6    demonstrate that (1) the vacancy at issue was not posted,

7    and (2) the employee either had (a) no knowledge of the

8    vacancy before it was filled or (b) attempted to apply for

9    it through informal procedures endorsed by the employer.”

10   Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004).

11       Fox alleges that defendants failed to post vacancies

12   for only three of the positions she claims were foreclosed

13   to her: weapons trainer, defensive tactics trainer, and

14   Court Security.   All of Fox’s claims regarding other

15   positions or promotions were therefore properly dismissed.

16   With regard to the three remaining positions, Fox has put

17   forward no evidence that she either was unaware of the

18   vacancies before they were filled or attempted to apply for

19   them through informal procedures.   Her claim regarding those

20   three positions was therefore also properly dismissed on

21   summary judgment.1


         1
          In addition, at least some of the positions Fox
     describes in her complaint confer no additional pay or
     benefits. Even if Fox had applied for those positions,
     denial of promotion would not be material enough to
                                   8
1       For the foregoing reasons, and finding no merit in

2   Fox’s other arguments, we hereby AFFIRM the judgment of the

3   district court.

4
5
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




    constitute an adverse employment action. Petrosino, 385
    F.3d at 228-29; Traylor v. Brown, 295 F.3d 783, 789 (7th
    Cir. 2002).
                                 9
