12-3622-cv
Moccio v. Cornell Univ.



                            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 13th
day of May, two thousand thirteen.

PRESENT:

                    PIERRE N. LEVAL,
                    JOSÉ A. CABRANES,
                    BARRINGTON D. PARKER,

                                Circuit Judges.

_____________________________________

FRANCINE MOCCIO,

                               Plaintiff-Appellant,

                    v.                                                  No. 12-3622-cv

CORNELL UNIVERSITY, NEW YORK STATE
SCHOOL OF INDUSTRIAL AND LABOR
RELATIONS, HARRY C. KATZ,

                     Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                  STEPHEN BERGSTEIN, Bergstein & Ullrich,
                                                          LLP, Chester, NY.



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FOR DEFENDANTS-APPELLEES:                                          WENDY E. TARLOW (Nelson E. Roth, Valerie
                                                                   Cross Dorn, on the brief), Office of University
                                                                   Counsel, Cornell University, Ithaca, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Paul A. Engelmayer, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.1

         Plaintiff-appellant Francine Moccio—a former Senior Extension Associate at Cornell
University’s School of Industrial and Labor Relations (“ILR”), and the director of the Institute for
Women and Work—brought this suit against defendants-appellees Cornell University, the New
York State School of Industrial and Labor Relations, and Dean of ILR Harry C. Katz
(“defendants”), alleging sex discrimination, unlawful retaliation, breach of contract, defamation,
“false light” invasion of privacy, and breach of contract, based on events surrounding the
termination of her employment. In an opinion and order dated July 21, 2009, Judge Gerard E.
Lynch dismissed Moccio’s defamation and invasion of privacy claims pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Moccio v. Cornell Univ., No. 09 cv 3601 (GEL), 2009 WL
2176626 (S.D.N.Y. July 21, 2009). After extensive documentary and testimonial discovery,
defendants moved for summary judgment on the remaining claims. In an opinion and order dated
August 27, 2012, Judge Engelmayer—to whom the case had been reassigned—granted the
defendants’ motion. See Moccio v. Cornell Univ., 889 F. Supp. 2d 539 (S.D.N.Y. 2012).

        Moccio appeals the District Court’s orders granting both the defendants’ motion to dismiss
and the defendants’ motion for summary judgment. She limits her arguments on appeal to her
defamation, retaliation, and breach of contract claims. We assume the parties’ familiarity with the
facts and procedural history of this case.

        Our review of the District Court’s decision to grant the motion to dismiss under
Rule 12(b)(6) is de novo, accepting all well-pleaded facts in the complaint as true, and drawing all
reasonable inferences in favor of the plaintiff. See Taveras v. UBS AG, 708 F.3d 436, 442 (2d Cir.
2013). We also review de novo the District Court’s grant of summary judgment, drawing all factual
inferences in favor of the non-moving party. Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 92
(2d Cir. 2013). Summary judgment is appropriate 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.


    1 Judge Leval respectfully dissents. While as a factfinder he would unhesitatingly support a verdict in favor of the

defendants rejecting plaintiff’s claims of discrimination and retaliation, he believes the evidence presented to the District
Court was legally sufficient to sustain a verdict in plaintiff’s favor.

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Civ. P. 56(a). “A genuine issue exists for summary judgment purposes 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.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012)
(citation and quotation marks omitted).

        Having conducted a de novo review of the dismissal of Moccio’s defamation claim under
Rule 12(b)(6), we affirm the judgment entered by the District Court for substantially the reasons
stated in the District Court’s well-reasoned opinion and order of July 21, 2009. See Moccio v. Cornell
Univ., 2009 WL 2176626, at *4 (noting that “it is beyond dispute that Katz’s November 2008 letter
does not refer to Moccio in any way, much less impute to her disreputable conduct or reprehensible
character”).

         With respect to Moccio’s retaliation claim under federal, state, and local law, we have
reviewed the record and the pertinent legal issues de novo and affirm for substantially the reasons
stated in the District Court’s thorough and well-reasoned opinion and order of August 27, 2012.
Even assuming that Moccio has presented a prima facie case for retaliation, “there is overwhelming
evidence that the [School of Industrial and Labor Relations] terminated Moccio’s employment not
because of factors particular to her, but as part of a broader workforce reduction caused by
budgetary constraints which resulted in the elimination of the entire eight-member [Workforce
Industry and Economic Development (“WIED”)] group, of which Moccio was a part.” Moccio v.
Cornell Univ., 889 F. Supp. 2d at 591. Accordingly, “[d]efendants have put forward a neutral, and
indeed amply corroborated, justification for Moccio’s termination,” and “[t]here is no evidence, and
Moccio cannot credibly argue, that the WIED layoffs were motivated by a desire to retaliate for her
earlier protected activities.”2 Id.

        Finally, having reviewed de novo the District Court’s grant of summary judgment to the
defendants with respect to Moccio’s breach of contract claim, we agree with the Court’s conclusion
that undisputed facts undercut her claim. Moccio’s breach of contract claim relies on a letter
purportedly granting her a five-year contract but making her employment subject to “‘available
funds, satisfactory performance, and available work.’” Id. at 593 (quoting letter of March 21, 2007).
Even assuming this letter granted Moccio a “for cause” rather than “at will” employment contract,
the undisputed evidence presented to the District Court demonstrates that the “available funds” and


    2  Moccio presented evidence tending to show that her supervisors also wished particularly to terminate her
employment because of the difficulty that others had working with her, see, e.g., Moccio, 889 F. Supp. 2d at 562 (quoting
one administrator’s comment, referring to Moccio, that “[t]his long festering sore needs to be dealt with”), but none of
this evidence created a genuine question of fact regarding the actual reason for her termination, which was the
disbandment of the entire program with which she was associated. See id. at 591 (“Moccio’s suggestion that these
16 other people were all terminated as pretext to camouflage defendants’ true intention—to rid themselves of Moccio, in
retaliation for her prior protected activities—is utterly uncorroborated and defies credibility.”).


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“available work” upon which her position depended were no longer extant. In particular,
uncontested evidence shows that the units in which Moccio worked were experiencing massive
budgetary shortfalls, and that the termination of these units meant that the defendants no longer had
a reason to continue Moccio’s employment. See id. Accordingly, we need not consider whether
Moccio’s employment could be terminated “at will,” because the conditions purportedly necessary
to terminate her “for cause” were demonstrated by uncontested evidence.

                                         CONCLUSION

       We have reviewed all of Moccio’s arguments and find them to be without merit.
Accordingly, the judgment is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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