McMenemy v. City of Rochester

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7199
• Citation: 241 F.3d 279
• Parties: (2nd Cir. 2001) LAURIE McMENEMY, as administrator of the estate of JOHN McMENEMY, Plaintiff-Appellant, v. CITY OF ROCHESTER, CITY OF ROCHESTER FIRE Department, CHARLES D. IPPOLITO, Individually and as Former Fire Chief of the City of Rochester Fire Department, DAVID GRIFFITH, Individually and as Fire Chief of the City of Rochester, THOMAS P. RYAN, JR., Individually and as Former Mayor of the City of Rochester, LOUIS N. KASH, Individually and as Former Corporation Counsel of the City of Rochester, WILLIAM JOHNSON, Individually and as Mayor of the City of Rochester, and MUNICIPAL CIVIL SERVICE COMMISSION, Defendants-Appellees, NANCY B. ABRAMS, Defendant
• Court: U.S. Court of Appeals — Second Circuit

Page 279

241 F.3d 279 (2nd Cir. 2001)

LAURIE McMENEMY, as administrator of the estate of JOHN McMENEMY, Plaintiff-Appellant, v. CITY OF ROCHESTER, CITY OF ROCHESTER FIRE Department, CHARLES D. IPPOLITO, Individually and as Former Fire Chief of the City of Rochester Fire Department, DAVID GRIFFITH, Individually and as Fire Chief of the City of Rochester, THOMAS P. RYAN, JR., Individually and as Former Mayor of the City of Rochester, LOUIS N. KASH, Individually and as Former Corporation Counsel of the City of Rochester, WILLIAM JOHNSON, Individually and as Mayor of the City of Rochester, and MUNICIPAL CIVIL SERVICE COMMISSION, Defendants-Appellees, NANCY B. ABRAMS, Defendant.

Docket No. 00-7199

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 30, 2000

Decided: March 02, 2001

Appeal from an order of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) granting summary judgment to the defendants on the plaintiff's claims under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law. We hold that the district court properly dismissed the plaintiff's §1983 due process claim because the plaintiff alleges no cognizable property interest in a promotion or a fair promotional examination. But we hold that the district court erred in dismissing the Title VII and New York Human Rights Law retaliation claims on the ground that the investigation of a sexual harassment complaint was not a "protected activity." Accordingly, we affirm in part, vacate in part, and remand.

MARY MAGEE and ALICE MESSINA, Office of Corporation Counsel (Linda S. Kingsley, of counsel), Rochester, N.Y., for Appellee.

BRAD ROSEN, Culley, Marks, Tanenbaum & Pezzulo, LLP (Glenn E. Pezzulo, of counsel), Rochester, N.Y., for Appellant.

Before: McLAUGHLIN and SACK, Circuit Judges, and CHATIGNY,^* District Judge.

SACK, Circuit Judge:

This action was brought by John McMenemy, a former Rochester, N.Y. firefighter on January 14, 1994, in the United States District Court for the Western District of New York. The complaint asserts causes of action under 42 U.S.C. §1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ("Title VII"), and the New York Human Rights Law against the City of Rochester and several of its employees. On October 30, 1999, after the district court granted summary judgment to the defendants, McMenemy died. The plaintiff, Laurie McMenemy, became the administrator of John McMenemy's estate, litigating the remaining proceedings before the district court and initiating this appeal.

The complaint alleges that McMenemy was passed over for promotion by the City in retaliation for his investigation of a sexual harassment complaint by the secretary of the local firefighters' union against the president of the union. The district court (Charles J. Siragusa, Judge) granted the defendants' motion for summary judgment. See McMenemy v. City of Rochester, 63 F. Supp. 2d 309 (W.D.N.Y. 1999). The court dismissed the Title VII and New York Human Rights Law retaliation claims on the ground that McMenemy had not engaged in a "protected activity" under those statutes because he had been investigating an employer different from the employer who took the adverse employment action. The district court dismissed the §1983 due process claim, holding that McMenemy had no property interest in a promotion or a competitive promotional examination and therefore had not been deprived of an interest protected by the Constitution. In addition to challenging these determinations, the plaintiff appeals the denial of discovery sanctions against the defendants for alleged destruction of documents.

BACKGROUND

The facts necessary to decide this appeal are not substantially in dispute.

John McMenemy was a Rochester City Fire Lieutenant and the treasurer of his union, Rochester Firefighters Association, Inc., Local 1071 IAFF (the "Union"). He alleged that in December 1992, Charles Ippolito, then-Chief of the Rochester Fire Department, promised that he would promote McMenemy to the rank of captain in the spring of 1993, after the anticipated retirement of another captain. McMenemy also alleged that it became known among the members of the department that he would be promoted, and several firefighters congratulated him on his imminent promotion.

In January 1993, Wendy Kern, a secretary for the Union but not a City employee, told McMenemy that Daniel Cavuoto, a City firefighter and president of the Union, had sexually assaulted and sexually harassed her. McMenemy alleged that his "contacts with the EEOC and the New York State Division of Human Rights" indicated that he was obligated to investigate the complaint, which he did. Kern subsequently sued the City and the Union for the alleged assault and harassment in both state and federal court. See Kern v. City of Rochester, 254 A.D.2d 757, 678 N.Y.S.2d 206 (4th Dep't 1998); Kern v. City of Rochester, 93 F.3d 38 (2d Cir. 1996), cert. denied, 520 U.S. 1155 (1997).

On February 26, 1993, at the suggestions of police officers investigating Kern's complaint, McMenemy informed Chief Ippolito and Deputy Chief David Griffith of the allegations. McMenemy's complaint alleged that Ippolito, who is "a friend, ally, and supporter of [Union] President Cavuoto," scolded McMenemy for not informing Ippolito of the allegations earlier. On March 19, 1993, Chief Ippolito published the captain promotion list and McMenemy's name was not on it. According to the complaint, the promotion that had been promised to McMenemy was given instead to a person who was not eligible for it. Chief Ippolito allegedly told McMenemy that "[w]ith all the things going on right now, I don't think you're qualified."

The complaint also alleges that McMenemy was again denied a promotion in June 1994 because of his investigation of Kern's complaint. The promotion was given instead to a person ranked lower on the civil service list. Eligibility for this promotion and the March 1993 promotion was based in part upon the results of a 1990 civil service exam. McMenemy took additional exams in 1994 and 1997 and he alleged various problems with those exams, including improper content and grading.

McMenemy commenced this action in 1994 and twice amended his complaint to include his allegations regarding the 1994 and 1997 exams. The complaint asserts five causes of action: (1) retaliation for McMenemy's investigation of Kern's sexual harassment complaint in violation of Title VII; (2) retaliation for McMenemy's investigation of Kern's sexual harassment complaint in violation of the New York Human Rights Law; (3) violation of 42 U.S.C. § 1983 for failure to promote McMenemy and for failure to provide a fair examination; (4) violation of the New York Civil Service Law for promoting persons other than McMenemy; and (5) defamation.

The defendants made a motion for summary judgment which the district court granted on September 14, 1999. The court dismissed the Title VII and New York Human Rights Law claims on the ground that McMenemy's investigation of Kern's sexual harassment complaint against the Union's president did not constitute a "protected activity" for purposes of a retaliation claim. See McMenemy, 63 F. Supp. 2d at 317-18. The court also granted the defendant's motion for summary judgment on the § 1983 claim, rejecting the plaintiff's substantive and procedural due process theories. The court held that McMenemy had no substantive due process right to a promotion or to a competitive civil service examination. See id. at 313-15. With respect to McMenemy's procedural due process argument, the court concluded that candidates for promotion have no property interest in a fair examination and that, in any event, McMenemy was afforded due process because he had an adequate state post-deprivation remedy. See id. at 315-17. McMenemy withdrew the defamation claim, and the court declined to exercise jurisdiction over the remaining state-law claim alleging violation of New York's Civil Service Law. See id. at 319-20.

Before the defendants moved for summary judgment, McMenemy moved to strike the defendants' answers for allegedly destroying documents relating to the 1994 and 1997 examinations. After granting summary judgment to the defendants, the district court denied the motion as moot.

The plaintiff appeals the district court's decisions with respect to (1) the Title VII and New York Human Rights Law claims; (2) the § 1983 claim; and (3) the denial of discovery sanctions.

DISCUSSION

I. Title VII and New York Human Rights Law Retaliation Claims

Title VII prohibits an employer from "discriminat[ing] against any of its employees... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of such retaliation, 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. See Gordon v. New York City Bd. of Educ., 232 F.3d 111 113 (2d Cir. 2000).¹

In holding that McMenemy's investigation of Kern's sexual harassment allegation against the president of the Union did not constitute a "protected activity," the district court relied on Wimmer v. Suffolk Co. Police Dep't, 176 F.3d 125 (2d Cir.), cert. denied, 528 U.S. 964 (1999), in which we examined the scope of protected activities for Title VII retaliation claims. We held in Wimmer that the employment practices opposed by the plaintiff need not have "actually amounted to a violation of Title VII." Id. at 134. Rather, the plaintiff...