16-945-cv
Pamela Marcotte v. City of Rochester

                               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 27th day of January, two thousand seventeen.

PRESENT:         JOSÉ A. CABRANES,
                 ROSEMARY S. POOLER,
                 GERARD E. LYNCH,
                              Circuit Judges.


PAMELA MARCOTTE,

                          Plaintiff-Appellant,                    16-945-cv

                          v.

CITY OF ROCHESTER,

                          Defendant-Appellee.



FOR PLAINTIFF-APPELLANT:                              Karen Sanders, Harris, Chesworth,
                                                      Johnstone & Welch, LLP, Rochester, NY.


FOR DEFENDANT-APPELLEE:                               Brian F. Curran (Patrick Beath on the brief),
                                                      Corporation Counsel for the City of
                                                      Rochester, Rochester, NY.




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     Appeal from the judgment of the United States District Court for the Western District of
New York (Michael A. Telesca, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-Appellant Pamela Marcotte (the “Plaintiff”) appeals the March 1, 2016 Decision
and Order of the District Court, dismissing the Plaintiff’s Complaint and Proposed Amended
Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(c). On appeal, the Plaintiff
argues that the District Court erred in: (1) applying the doctrine of res judicata to the Title VII
retaliation claim and (2) dismissing the Fair Labor Standards Act (“FLSA”) retaliation claim. For the
reasons set forth in the District Court’s thorough opinion, we find both arguments to be without
merit. We assume the parties’ familiarity with the underlying facts, procedural history of the case,
and issues on appeal.

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         We review de novo a district court's dismissal pursuant to Federal Rule of Civil Procedure
12(c) under “the same de novo standard applicable to dismissals pursuant to Fed. R. Civ. P. 12(b)(6).”
Morris v. Schroder Capital Mgmt. Int'l, 445 F.3d 525, 529 (2d Cir. 2006). We “constru[e] the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff's favor.” Chase Grp. All. LLC v. N.Y.C. Dep't of Fin., 620 F.3d 146, 150 (2d
Cir. 2010); Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted).

I. The Doctrine of Res Judicata

         First, we hold that the Title VII retaliation claim was barred by the doctrine of res judicata or
claim preclusion. “The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were or could
have been raised in that action.’” Monahan v. N.Y.C. Dep 't of Corrs., 214 F.3d 275, 284-85 (2d Cir.
2000) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Neither party disputes that the Decision and
Order dated May 29, 2013 was a valid “judgment on the merits.” See Marcotte v. City of Rochester, No.
12-CV-6416 CJS (MWP), 2013 WL 2385163 (W.D.N.Y. May 29, 2013) (“Marcotte I”). Instead, the
Plaintiff argues that new facts, emerging after the filing and amendment of the complaint in Marcotte
I, give rise to a Title VII claim that could not have been made in Marcotte I. We disagree.

       Proceeding now on a theory of retaliation under Title VII, rather than disparate treatment
under Section 1983 or the Fourteenth Amendment’s Equal Protection Clause or Monell liability, as

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the Plaintiff asserted in Marcotte I, does not preclude the application of res judicata in this case. See L-
Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir.1999) (per curiam) (“Even claims
based upon different legal theories are barred provided they arise from the same transaction or
occurrence.”). The Plaintiff’s Title VII claim arises from the same occurrence at issue in Marcotte I:
the purported sex discrimination by McIntosh and her email to McIntosh asserting that she had
been subjected to discrimination and requesting that he take remedial action. As the District Court
explained: “The subsequent disparate treatment of the male successor to Plaintiff's position as
Managing Architect is not a new transaction giving rise to a new claim, and Plaintiff is not pursuing
a later arising cause of action based on this event.” Marcotte v. City of Rochester, No. 6:14-CV-
6128(MAT), 2016 WL 792497 at *5 (W.D.N.Y. Mar. 1, 2016) (“District Court Opinion”). Moreover,
to the extent that Plaintiff now seeks to pursue a retaliation claim rather than a discrimination claim,
newly-discovered evidence of disparate treatment would no generate her new theory in any event.
The assertion of a new legal theory does not alter this result.

         Even if the claim is barred by the doctrine of res judicata, the Plaintiff alternatively argues that
we should consider the “unusual circumstances as to the conduct and competence of prior counsel,
[weighing] the interests of justice dictate against the imposition of the doctrine.” Pet. Br. 17. This
court has never granted such an exception to the doctrine of res judicata based on allegations of
ineptitude on the part of prior counsel, nor do we intend to do so here. Teltronics Servs., Inc. v. L M
Ericsson Telecomms., Inc., 642 F.2d 31, 36 (2d Cir. 1981) (“[N]o case has been cited or discovered
where relief from res judicata principles has been granted simply because the plaintiff was
represented by inexperienced counsel…In our jurisprudence, each party is deemed bound by the
acts of his lawyer-agent.”). Accordingly, the District Court properly determined that the Plaintiff’s
Title VII claim was barred by the doctrine of res judicata.

II. The FLSA Retaliation Claim

         Second, the Plaintiff’s FLSA retaliation claim was also properly dismissed. The FLSA’s anti-
retaliation provision makes it “unlawful for any person...to discharge or in any other manner
discriminate against any employee because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under [the FLSA].” 29 U.S.C. § 215(a)(3). In the instant
appeal, the Plaintiff is not protected by, and has no rights arising under, the FLSA. See 29 U.S.C.
§ 213 (listing categories of employees exempt from the protections of the FLSA). Rather, she
contends that her FLSA complaint was brought in good faith and the City cannot retaliate against
her for that complaint. We find this argument to lack merit. No reasonable employer could have
believed that the Plaintiff’s complaint about using her paid leave account was a genuine assertion of
rights under the FLSA.

        It is possible to state an anti-retaliation claim under the FLSA without proving an actual
violation of the FLSA. See, e.g., Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590,
593 (2d Cir. 1988). To do so, however, the claimant must show that that “a reasonable employer”

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could find that her complaint would fall under the scope of the FLSA’s protection. See Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011) (“To fall within the scope of the [FLSA’s]
antiretaliation provision, a complaint [by an employee] must be sufficiently clear and detailed for a
reasonable employer to understand it, in light of both content and context, as an assertion of rights
protected by the statute and a call for their protection.”). In Greathouse v. JHS Sec. Inc., 784 F.3d 105,
115-16 (2d Cir. 2015), this court reiterated that standard and held that oral complaints to an
employer afford an employee protection from retaliation under section 215(a)(3) of the FLSA “when
a reasonable, objective person would have understood the employee to have put the employer on
notice that the employee is asserting statutory rights under [the FLSA].” Id. at 115-16.

         We agree with District Court that “[t]he facts pleaded in Plaintiff’s Complaint and Proposed
Amended Complaint do not permit the inference of anything more than the merest possibility of
wrongful conduct under the FLSA.” District Court Opinion at *8. Neither Marcotte’s email to her
supervisor on March 7, 2012 alleging sex discrimination nor Marcotte’s protest about using accrued
sick days or personal days provide sufficient evidence of a good faith assertion of statutory rights
that a reasonable employer would have understood as an assertion of rights under the FLSA. The
FLSA was enacted to remedy “labor conditions detrimental to the maintenance of the minimum
standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. §
202(a). The Plaintiff cites no cases to support her view: that complaining about having to use
accumulated sick days or personal days to cover an unexcused absence is a valid assertion of FLSA
rights by a non-covered employee such that a reasonable person would have understood it to put an
employer on notice as an assertion of rights under the FLSA. Accordingly, we conclude that the City
reasonably concluded that the Plaintiff’s complaint was not an assertion of statutory rights under the
FLSA. Therefore, the District Court properly dismissed the Plaintiff’s retaliation claim.

                                           CONCLUSION

        We have considered all of appellant’s claims on appeal and found them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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