Filed: Sep. 23, 2016
Latest Update: Mar. 03, 2020
Summary: 15-2669 Fox v. County of Yates, et al. 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 “SUMMAR
Summary: 15-2669 Fox v. County of Yates, et al. 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..
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15-2669
Fox v. County of Yates, et al.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of September, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DEBRA A. LIVINGSTON,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 PATRICIA A. FOX,
13 Plaintiff-Appellant,
14
15 -v.- 15-2669
16
17 COUNTY OF YATES, JOHN C. GLEASON, both
18 individually and in his official
19 capacity as UnderSheriff Yates County,
20 RONALD G. SPIKE, both individually and
21 in his official capacity as Sheriff of
22 Yates County, CLAY RUGAR, both
23 individually and in his official
24 capacity as Jail Administrator of the
25 Yates County Jail,
26 Defendants-Appellees,
27
28 - - - - - - - - - - - - - - - - - - - -X
1
1
2 FOR APPELLANT: JOHN J. LADUCA, (Anthony J.
3 LaDuca, on the brief) LaDuca Law
4 Firm, Rochester, New York.
5
6 FOR APPELLEES: GERARD E. O’CONNOR, Lippman
7 O’Connor, Buffalo, New York.
8
9 Appeal from judgments of the United States District
10 Court for the Western District of New York (Telesca, J. and
11 Payson, M.J.).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15 Patricia A. Fox appeals from judgments of the United
16 States District Court for the Western District of New York
17 (Telesca, J. and Payson, M.J.) granting defendants’ motion
18 for summary judgment on her malicious prosecution and sex
19 discrimination claims and denying her access to secret grand
20 jury minutes. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review. We affirm on the grounds that: 1) her
23 malicious prosecution claim fails because her indictment was
24 supported by probable cause; 2) Fox has failed to make a
25 strong particularized showing of need for the grand jury
26 minutes; and 3) she failed to establish that it would have
27 been futile to apply for promotions as part of her sex
28 discrimination claim.
2
1 Fox is a correctional officer for the Yates County Jail
2 (the “Jail”). A Jail policy required employees to get a
3 supervisor’s signature to approve any overtime, even if that
4 overtime had already been completed. In 2007, Fox’s
5 superiors discovered that she had surreptitiously added time
6 to her timecards after getting a supervisor’s signature on
7 at least four separate occasions. A Yates County grand jury
8 indicted Fox for falsifying business records and petit
9 larceny, and at trial she was acquitted of all charges.
10 Fox claims she did in fact work the overtime that she
11 secretly added to her timecards, and her claim is borne out
12 by an administrative finding which came after her acquittal.
13 She now argues that her conduct may have violated the Jail
14 policy, but that because she actually worked the hours, she
15 did not violate New York criminal law. She claims that the
16 defendants conflated the Jail policy and the relevant New
17 York criminal law (Penal Law § 175.10) in their testimony to
18 the grand jury, and that they did so in order to secure her
19 indictment.
20 Fox brought a malicious prosecution action against
21 defendants, and now appeals from the dismissal of her claim
22 on summary judgment. Under New York law, probable cause
23 defeats a malicious prosecution claim. A grand jury
24 indictment creates a presumption of probable cause, and a
3
1 grand jury indicted Fox. The presumption of probable cause
2 thereby created, “may only be rebutted by evidence that the
3 indictment was procured by ‘fraud, perjury, the suppression
4 of evidence or other police conduct undertaken in bad
5 faith.’” Savino v. City of New York, 331 F.3d 63, 72 (2d
6 Cir. 2003) (quoting Colon v. City of New York,
60 N.Y.2d
7 78, 83 (1983)) (emphasis in original). While we review
8 grants of summary judgment de novo and draw all factual
9 inferences in favor of the nonmoving party, Fox bears the
10 burden of proof in rebutting the presumption of probable
11 cause.
Id. at 71, 73.
12 Fox contends that defendants lied when they failed to
13 draw a distinction between the Jail policy and New York
14 criminal law in their testimony that employees were not
15 entitled to overtime without supervisory approval. It is
16 not at all clear from the record that the defendants
17 testified falsely–-Fox herself describes the statements at
18 one point as a “misleading oversimplification.” Appellant
19 Br. at 20. Even if the witnesses did testify falsely, Fox
20 must establish that they did so intentionally in order to
21 establish the “fraud, perjury, [or] suppression of evidence”
22 needed to overcome the presumption of probable cause.
23
Savino, 331 F.3d at 72.
4
1 This she cannot do. Fox does not point to evidence
2 that the defendants were aware of the legal distinction she
3 draws, and her brief even states that at least one of the
4 defendants “did not fully understand the elements of the
5 crime(s) he was investigating.” Appellant Br. at 33. Fox
6 also argues that one source of the confusion was defendants’
7 failure to consider the impact of the Fair Labor Standards
8 Act. We take no position on whether Fox is correct about
9 FLSA’s effect, but a failure to consider the impact of
10 federal labor law bespeaks mistake rather than bad faith.
11 And regardless of what was said about whether failure
12 to actually work the hours was part of the crime charged,
13 the District Attorney, the defendants, and the grand jurors
14 would all have been fully justified in believing that Fox
15 did not in fact work those hours. Fox concedes that she
16 deliberately added overtime to her timecard after approval
17 by a sergeant on four occasions. When she appeared before
18 the grand jury, she implausibly testified that she was not
19 aware that overtime required approval by a supervisor, even
20 though she regularly got approval by supervisors for
21 overtime. From that, one could reasonably infer that Fox
22 did not in fact work the hours and had surreptitiously added
23 time to her cards in order to take money she was not
24 entitled to.
5
1 The District Attorney reviewed the evidence in the case
2 along with information provided to her by Fox’s counsel, and
3 she concluded that Fox did not work the overtime and sought
4 an indictment from the grand jury. Fox does not allege that
5 the District Attorney conspired with the defendants. There
6 is accordingly no genuine issue of material fact as to
7 whether the defendants procured the indictment through
8 fraud, perjury, or other police misconduct, and Fox’s
9 malicious prosecution claim was therefore properly dismissed
10 on summary judgment.
11 Fox also appeals from an order by the magistrate judge
12 denying her access to the District Attorney’s charge to the
13 grand jury, which she contends would help prove her
14 malicious prosecution claim. Given the significant public
15 interest in maintaining the secrecy of grand jury
16 proceedings, Fox must make a showing of a particularized
17 need in order to obtain the grand jury charge. See United
18 States v. Sobotka, 623 F.2d 764, 767-68 (2d Cir. 1980);
19 Douglas Oil Co. of California v. Petrol Stops Nw,
441 U.S.
20 211, 222 (1979).
21 Fox already has access to all the grand jury testimony;
22 she now only seeks the District Attorney’s charge. The
23 magistrate judge found that Fox had “failed to make any
24 showing” that the District Attorney’s charge would support
6
1 her malicious prosecution claim. Fox v. County of Yates,
2 922 F. Supp. 2d 424, 433 (W.D.N.Y. 2013). The District
3 Attorney is not a defendant; Fox has offered no facts to
4 suggest that the District Attorney conspired with the
5 defendants or acted in bad faith; and a state court already
6 reviewed the grand jury charge in camera and found it
7 legally sufficient.
8 “The discretion of a trial court in deciding whether to
9 make public the ordinarily secret proceedings of a grand
10 jury investigation is one of the broadest and most sensitive
11 exercises of careful judgment that a trial judge can make.”
12 In re Petition of Craig,
131 F.3d 99, 104 (2d Cir. 1997).
13 The magistrate judge’s ruling was well within that
14 discretion.
15 Finally, Fox appeals the grant of summary judgment
16 against her on her sex discrimination claim. To succeed on
17 a discriminatory failure to promote claim, a plaintiff must
18 ordinarily actually apply for the promotion or position.
19 Brown v. Coach Stores, Inc.,
163 F.3d 706, 709-10 (2d Cir.
20 1998) (citing McDonnell Douglas Corp. v. Green,
411 U.S.
21 792, 802 (1973)).
22 Fox never applied for any position or promotion. She
23 instead seeks to take advantage of an exception to the
24 requirement that applies when seeking a promotion would have
7
1 been futile. “But the exception is narrow and does not
2 pertain simply because an employee asserts that an ‘aura of
3 discrimination’ in the workplace somehow discouraged her
4 from filing a formal application. Rather, to be excused
5 from the specific application requirement, an employee must
6 demonstrate that (1) the vacancy at issue was not posted,
7 and (2) the employee either had (a) no knowledge of the
8 vacancy before it was filled or (b) attempted to apply for
9 it through informal procedures endorsed by the employer.”
10 Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004).
11 Fox alleges that defendants failed to post vacancies
12 for only three of the positions she claims were foreclosed
13 to her: weapons trainer, defensive tactics trainer, and
14 Court Security. All of Fox’s claims regarding other
15 positions or promotions were therefore properly dismissed.
16 With regard to the three remaining positions, Fox has put
17 forward no evidence that she either was unaware of the
18 vacancies before they were filled or attempted to apply for
19 them through informal procedures. Her claim regarding those
20 three positions was therefore also properly dismissed on
21 summary judgment.1
1
In addition, at least some of the positions Fox
describes in her complaint confer no additional pay or
benefits. Even if Fox had applied for those positions,
denial of promotion would not be material enough to
8
1 For the foregoing reasons, and finding no merit in
2 Fox’s other arguments, we hereby AFFIRM the judgment of the
3 district court.
4
5
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
constitute an adverse employment action. Petrosino, 385
F.3d at 228-29; Traylor v. Brown,
295 F.3d 783, 789 (7th
Cir. 2002).
9
