Kern v. City of Rochester

Decision Date15 August 1996
Docket NumberNo. 1499,D,1499
Citation93 F.3d 38
Parties71 Fair Empl.Prac.Cas. (BNA) 1391 Wendy L. KERN, Plaintiff-Appellant, v. CITY OF ROCHESTER, Fire Department, of the City of Rochester, Police Department, of the City of Rochester, Rochester Firefighters Association, Inc., Local 1071 IAFF; International Association of Firefighters, Daniel Cavuoto, Individually and as President of Local 1071, IAFF and as a Full Time City of Rochester Employee and Lt. in the City of Rochester Fire Department, Charles D. Ippolito, Individually and as Chief of the City of Rochester Fire Department and Lloyd Eldridge, Defendants-Appellees. ocket 95-9107.
CourtU.S. Court of Appeals — Second Circuit

Emmelyn Logan-Baldwin, Rochester, NY, for Plaintiff-Appellant.

Charles D. Steinman, Rochester, NY (Linda S. Kingsley, Corporation Counsel, Rochester, NY, of counsel), for Defendants-Appellees City of Rochester, Fire Department of the City of Rochester, Police Department of the City of Rochester, and Charles D. Ippolito.

Bradley A. Sherman, Culley, Marks, Tanenbaum, Capell and Pezzulo, Rochester, NY, for Defendant-Appellee Rochester Firefighters Association, Inc., Local 1071 IAFF.

Erick J. Genser, Washington, DC (Thomas A. Woodley, Mulholland & Hickey, Washington, DC, of counsel), for Defendant-Appellee International Association of Firefighters.

Before: MESKILL and MINER, Circuit Judges, and LASKER, District Judge. *

MINER, Circuit Judge:

Plaintiff-appellant Wendy L. Kern appeals from a judgment entered in the United States District Court for the Western District of New York (Telesca, C.J.) denying her motions to amend her complaint and dismissing the complaint for failure to state claims upon which relief can be granted. Kern alleged in the complaint, inter alia, that defendants-appellees City of Rochester (the For the reasons that follow, we affirm the judgment of the district court.

"City"), the Fire Department of the City of Rochester (the "RFD"), Daniel Cavuoto, and Charles Ippolito (together, the "City Defendants") were liable, pursuant to 42 U.S.C. § 1983, for unconstitutional employment discrimination. In her first proposed amended complaint, Kern repleaded her § 1983 claims against the City Defendants and added a cause of action for employment discrimination against the City Defendants and defendant-appellee Rochester Firefighters Association, Inc., Local 1071 IAFF ("Local 1071") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In the first of three Decisions and Orders, the district court found that Kern failed to state a claim under § 1983, and that it would be futile to allow Kern to amend her complaint to add a Title VII action because she could not sustain a Title VII action against either the City Defendants or Local 1071. In her second proposed amended complaint, Kern alleged Title VII violations as her sole federal cause of action. In two subsequent Decisions and Orders, the district court again found that it would be futile to allow Kern to add a Title VII action and therefore denied Kern's motion to amend her complaint. On October 5, 1995, judgment was entered dismissing Kern's complaint.
BACKGROUND

In September of 1992, Kern began her employment as a secretary for Local 1071. Local 1071 is the Rochester branch of the International Association of Firefighters and is the collective bargaining agent of the firefighters employed by the City. Kern's immediate supervisor was Cavuoto, the president of Local 1071. Cavuoto was a Lieutenant in the RFD, 1 and he also operated a private business known as "Life Safety" with his partner, Lloyd Eldridge. The Life Safety offices were located in the same building as the offices of Local 1071.

In her complaint, Kern alleged that Cavuoto sexually harassed her on numerous occasions between September and December of 1992. The alleged harassment initially consisted of Cavuoto's attempts to engage Kern in conversations of a sexual nature, but culminated in Cavuoto's physical assault of Kern on December 30, 1992. On that day, according to the complaint, Cavuoto and Eldridge invited Kern to "have a holiday drink" with them in the Life Safety offices. After consuming some wine, Kern claims that she began to feel "drunk and out of control." She excused herself and went to the bathroom located in the Local 1071 offices. Shortly thereafter, Cavuoto entered the bathroom and pushed Kern against the bathroom sink. Kern resisted Cavuoto's advances and then lost consciousness. According to Kern, when she regained consciousness, she was partially disrobed and lying on the office floor with Cavuoto standing above her naked below the waist. Kern immediately dressed and left the office. The next day, Kern reported the incident to the Rochester Rape Crisis Center.

Following the assault, Kern sought the assistance of the Rochester Police Department (the "RPD") and Local 1071. On January 19, 1992, Kern met with John McMenemy, who was the treasurer of Local 1071 and a lieutenant in the RFD, to discuss the alleged assault. McMenemy prepared a report of Kern's allegations, which was signed by Kern and McMenemy. McMenemy then provided the report to the City's Corporation Counsel, the executive board of Local 1071, and Ippolito, who at that time was the Chief of the RFD.

On February 24, 1993, Kern and her attorney met with representatives of the RPD to file a criminal complaint against Cavuoto. Kern was introduced to Detective D'Ambrosio and Investigator Ruvio, who told Kern that they would investigate her allegations. Although the detectives commenced an investigation, the record does not indicate that Cavuoto was charged with any crime.

In March of 1993, McMenemy discussed Kern's allegations against Cavuoto with Ippolito. According to Kern, Ippolito told McMenemy that he was "in big trouble" for reporting Kern's allegations to the executive board of Local 1071, and that, not only was his career in the RFD in jeopardy, but also his union position would be lost if "the members [found] out what [he] did." Two days later, McMenemy was denied promotion to Captain in the RFD.

On June 28, 1993, Kern commenced the action giving rise to this appeal. In her complaint, Kern alleged, inter alia, that the City Defendants were liable under § 1983 for violating her rights to equal protection, due process, and free speech. According to Kern, Cavuoto was liable under § 1983 because he sexually harassed and assaulted her during her employment as his secretary, and therefore deprived her of her right to equal protection. Kern further claimed that the City was liable under § 1983 because it had knowledge of Cavuoto's "womanizing," but failed to take any action to discipline him and therefore deprived Kern of her rights to equal protection and due process. Finally, Kern alleged that the RFD and Ippolito were liable under § 1983 because they retaliated against her for complaining of Cavuoto's sexual harassment by denying McMenemy a promotion to Captain in the RFD, and thus deprived her of her First Amendment right to free speech.

On August 13, 1993, Kern moved to amend her complaint. In the proposed amended complaint, Kern added a cause of action under Title VII against the City Defendants and Local 1071. Kern also repleaded her § 1983 claims against the City Defendants. Thereafter, the City Defendants and Local 1071 moved, under Fed.R.Civ.P. 12(b)(6), to dismiss the complaint.

By a Decision and Order dated November 23, 1993, the district court granted the motions of the City Defendants and Local 1071 to dismiss Kern's complaint. The district court found that Kern failed to state a claim under § 1983 against the City or the RFD because she was unable to plead any facts indicating that the deprivation of her civil rights was the result of a policy or custom. The district court also found that Kern failed to state a § 1983 claim against Cavuoto because she failed to show "that any alleged wrongful actions attributed to Mr. Cavuoto were committed under color of state law." Finally, the district court dismissed Kern's retaliation claims, finding that she did not have standing to assert that McMenemy had been deprived of his civil rights on account of her complaint against Cavuoto.

The district court also denied Kern's motion to amend her complaint. The court found that the amendment would be futile because her Title VII claims would fail, since neither the City nor Local 1071 was an employer for purposes of Title VII. However, the district court granted Kern leave to move to file an amended complaint setting forth a valid cause of action under Title VII.

On January 19, 1994, Kern again moved to amend her complaint and also moved for reconsideration of the November 23, 1993 order. Her second proposed amended complaint differed from the original complaint in that she did not allege any violations of § 1983 and her sole federal cause of action was under Title VII. By a Decision and Order dated December 1, 1994, the district court denied Kern's motion to amend her complaint to add a Title VII cause of action against the City Defendants, but found that a hearing was necessary to determine whether Kern could sustain a Title VII cause of action against Local 1071. The district court also denied Kern's motion for reconsideration of the November 23, 1993 Decision and Order.

On August 14, 1995, an evidentiary hearing was held to determine whether Kern could maintain a Title VII claim against Local 1071. The only issue at the hearing was whether Local 1071 had the requisite number of employees to be considered an employer for purposes of Title VII. By a Decision and Order dated October 5, 1994, the district court found that Local 1071 did not have the requisite number of employees to be considered an employer for purposes of Title VII, and thus concluded that Kern could not make out a Title VII cause of action against Local 1071. Accordingly, a final judgment was...

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