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.

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                             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.




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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




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