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IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

ANDREA VASZQUEZ,

Plaintiff-Appellant,v.

EMPRESS AMBULANCE SERVICE, INC.,

Defendant-Appellee,and

TYRELL GRAY, individually,

Defendant.

>> >>

BRIEF FOR DEFENDANT-APPELLEE

Debra Lynne Wabnik

STAGG, TERENZI, CONFUSIONE

& WABNIK, LLP

Attorneys for Defendant-Appellee401 Franklin Avenue, Suite 300

Garden City, New York 11530

516-812-4500

On Appeal from the United States District Courtfor the Southern District of New York (New York City)

15-3239-CVCase 15-3239, Document 47, 02/05/2016, 1700225, Page1 of 44

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTIONAL STATEMENT .......................................................................... 1

COUNTER-STATEMENT OF THE ISSUE PRESENTED ..................................... 1

PRELIMINARY STATEMENT ............................................................................... 1

COUNTER-STATEMENT OF FACTS .................................................................... 5

A. For More Than Two Months, Plaintiff Was Harassed

By Gray Without Empress’s Knowledge ..................................................... 5

B. Upon Notice, Empress Immediately Investigated Plaintiff’s

Complaint of Harassment ............................................................................. 6

C. Gray Fabricated Evidence and Tricked Empress

Into Believing Plaintiff Took Part in Consensual

Sexual Banter ............................................................................................... 7

D. The District Court Properly Dismissed the Complaint

Against Empress ........................................................................................... 9

E. Plaintiff Raises New Theory On This Appeal ........................................... 12

ARGUMENT ........................................................................................................... 13

POINT I

THE DISTRICT COURT CORRECTLY HELD THAT

EMPRESS CANNOT BE LIABLE UNDER THE

CAT’S PAW THEORY ............................................................................. 13

POINT II

EMPRESS CANNOT BE HELD VICARIOUSLY

LIABLE UNDER A NEGLIGENCE THEORY

FOR ITS PERSONNEL DECISIONS ....................................................... 19

Case 15-3239, Document 47, 02/05/2016, 1700225, Page2 of 44

ii

A. Plaintiff Waived the Argument That Empress Can Be Held

Liable for Gray’s Actions Under A Negligence Theory ............................ 19

B. Empress Cannot Be Held Liable For A Personnel Decision

Under Plaintiff’s New Negligence Theory ................................................ 21

C. Even If Employer Liability For Personnel Decisions

Is Expanded To Negligence, Plaintiff Fails To State

A Claim ...................................................................................................... 25

D. Employer Liability In Making Personnel Decisions Should

Not Be Expanded to Negligence ................................................................ 28

CONCLUSION ........................................................................................................ 35

CERTIFICATE COMPLIANCE ............................................................................. 36


iii

TABLE OF AUTHORITIES

Page

Cases

Adia v. MTA Long Island R.R. Co.,

2006 U.S. Dist. LEXIS 51045 (E.D.N.Y. July 26, 2006) ................................. 23

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .......................................................................................... 13

Askins v. Sergeant John Doe #1,

727 F.3d 248 (2d Cir. 2013) .............................................................................. 19

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .......................................................................................... 13

Browning Debenture Holders’ Committee v. DASA Corp.,

524 F.2d 811 (2d Cir. 1975) ........................................................................ 28, 29

Burlington Indus., Inc. v. Ellerth,

524 U.S. 742 (1998) ........................................................................ 16, 17, 18, 30

Burlington v. New Corp.,

55 F. Supp. 3d 723, 738-39 (E.D. Pa. 2014) ..................................................... 30

Byrne v. Telescetor Resources Group,

339 Fed. Appx. 13 (2d Cir. 2009) ..................................................................... 22

Chambers v. Time Warner, Inc.,

282 F.3d 147 (2d Cir. 2002) .............................................................................. 13

Cifarelli v. Village of Babylon,

93 F.3d 47 (2d Cir. 1996) .................................................................................. 23

Costello v. St. Francis Hosp.,

258 F. Supp. 2d 144 (E.D.N.Y. 2003) .............................................................. 22

Cox v. Onondaga,

760 F.3d 139 (2d Cir. 2014) .............................................................................. 33


iv

Davis v. State Univ. of New York,

802 F.2d 638 (2d Cir. 1986) .............................................................................. 22

Duch v. Jakubek,

588 F.3d 757 (2d Cir. 2009) .............................................................................. 30

Evans v. N.Y. Botanical Garden,

2002 U.S. Dist. LEXIS 16434 (S.D.N.Y. Sept. 4, 2002) .................................... 8

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) .............................................................................. 17, 18, 30

Finn v. New York State Office of Mental Health,

2011 U.S. Dist. LEXIS 115950 (S.D.N.Y. Oct. 6, 2011) ................................. 23

Gomez v. City of New York,

2014 U.S. Dist. LEXIS 113674 (S.D.N.Y. Aug. 14, 2014) .................. 14, 15, 18

Gorley v. Metro-North Commuter R.R.,

2000 U.S. Dist. LEXIS 18427 (S.D.N.Y. Dec. 21, 2000) ................................ 23

Greene v. United States,

13 F.3d 577 (2d Cir. 1994) ................................................................................ 19

Gregory v. Daly,

243 F.3d 687 (2d Cir. 2001) .............................................................................. 13

Hardage v. CBS Broadcasting, Inc.,

427 F.3d 1177 (9th Cir. 2005)........................................................................... 34

Hodges v. Rensselaer Hartford Graduate Ctr., Inc.,

2008 U.S. Dist. LEXIS 22228 (D. Conn. Mar. 20, 2008) ................................ 22

In re Enron Corp.,

379 B.R. 425 (S.D.N.Y. 2007) ............................................................................ 8

In Re Fiorano Tile Imports, Inc.,

619 Fed. Appx. 33 (2d Cir. 2015) ............................................................... 20, 21

In Re Nortel Networks Corp. Securities Litigation,

539 F.3d 129 (2d Cir. 2008) .............................................................................. 20


v

Kalisch-Jarcho, Inc. v. City of New York,

58 N.Y.2d 377 (1983) ....................................................................................... 23

Kramer v. Time Warner, Inc.,

937 F.2d 767 (2d Cir. 1991) ................................................................................ 8

Kregler v. City of N.Y.,

987 F. Supp. 2d 357 (S.D.N.Y. 2013), aff’d, 604 F. App’x 44

(2d Cir. 2015) .................................................................................. 14, 15, 17, 18

L.A. v. Lyons,

461 U.S. 95 (1983) ............................................................................................ 28

Lindner v. International Bus. Mach. Corp.,

2008 U.S. Dist. LEXIS 47599 (S.D.N.Y. June 18, 2008) .................................. 8

Malik v. Carrier Corp.,

202 F.3d 97 (2d Cir. 2000) ................................................................................ 34

Maturine v. American Int’l Group, Inc.,

2006 U.S. Dist. LEXIS 80933........................................................................... 22

McPherson v. New York City Dep’t of Ed.,

457 F.3d 211 (2d Cir. 2006) ............................................................ 22, 23, 24, 34

Meritor Savs. Bank v. Vinson,

477 U.S. 57 (1986) ................................................................................ 16, 17, 30

Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth.,

415 Fed. Appx. 264 (2d Cir. 2011) ................................................................... 28

Muhammad v. N.Y. City Transit Auth.,

450 F. Supp. 2d 198 (E.D.N.Y. 2006) ................................................................ 8

Nagle v. Marron,

663 F.3d 100 (2d Cir. 2011) .............................................................................. 15

Nealy v. Berger,

2009 U.S. Dist. LEXIS 20939 (E.D.N.Y. Mar. 16, 2009) .................................. 8


vi

North Carolina v. Rice,

404 U.S. 244 (1971) .......................................................................................... 28

Norton v. Sam’s Club,

145 F.3d 114 (2d Cir. 1998) .............................................................................. 22

S. Jackson & Son v. Coffee, Sugar & Cocoa Exch.,

24 F.3d 427 (2d Cir. 1994) ................................................................................ 29

Simmons v. Roundup Funding, LLC,

622 F.3d 93 (2d Cir. 2010) ................................................................................ 13

Snell v. Suffolk County,

782 F.2d 1094 (2d Cir. 1986) ................................................................ 30, 31, 34

Spellacy v. Airline Pilots Ass’n,

156 F.3d 120 (2d Cir. 1998) .............................................................................. 23

Staub v. Proctor Hosp.,

562 U.S. 411 (2011) ...................................................................................passim

Subaru Distrib. Corp. v. Subaru of Am., Inc.,

425 F.3d 119 (2d Cir. 2005) ................................................................................ 8

United States Postal Service Bd. of Governors v. Aikens,

460 U.S. 711 (1983) .......................................................................................... 24

Vance v. Ball State Univ.,

__ U.S. __, 133 S. Ct. 2434 (2013) ................................................................... 30

Rules

Federal Rule 12(b)(6) ........................................................................................... 5, 13

Other Authorities

Black’s Law Dictionary 149 (8th ed. 1999) ............................................................ 24

Black’s Law Dictionary 1061 (8th ed. 1999) .......................................................... 23


vii

Restatement (Second) of Agency, § 219(2)(d) (1957) ...................................... 17, 18

U.S. Const. art. III, § 2, cl. 1 .................................................................................... 28


JURISDICTIONAL STATEMENT

Defendant-Appellee Empress Ambulance Service, Inc. (“Empress”) accepts

the jurisdictional statement in Plaintiff-Appellant Andrea Vasquez’s (“Plaintiff”)

opening brief.

COUNTER-STATEMENT OF THE ISSUE PRESENTED

Was the District Court (J. Buchwald) correct in dismissing Plaintiff’s First

Amended Complaint against Empress? Empress submits that the Court’s decision

was correct.

PRELIMINARY STATEMENT

Plaintiff’s complaint alleged that her co-worker, former Defendant Tyrell

Gray (“Gray”),1 harassed her by sending her sexual texts. Plaintiff notified

Empress, and Empress commenced an immediate investigation. During the

investigation, Gray provided Empress with texts demonstrating that the sexual text

exchange was consensual. After analyzing the evidence produced by Gray and

confronting Plaintiff with that evidence, Empress discharged both Plaintiff and

Gray.

Plaintiff alleges that Gray falsified the text exchange to make it seem as

though Plaintiff was a willing participant, in retaliation for Plaintiff’s reporting his

harassment. Plaintiff conceded that Empress did not harbor any discriminatory or

1 Plaintiff voluntarily discontinued all claims against Gray.


2

retaliatory animus toward her, but claimed that Gray’s retaliatory animus should be

imputed onto Empress based on the “Cat’s Paw” theory of liability. The District

Court, following the reasoning of the United States Supreme Court and this

Circuit, granted Empress’s motion to dismiss, holding that the Cat’s Paw theory

did not apply because Gray was not an agent of Empress, i.e., he was not a

supervisor, a manager, delegated any authority by Empress, or in a relationship or

position with Empress that engendered trust and confidence. (A. 34-38.)2 The

District Court further held that Gray was simply a low-level employee who, upon

Empress’s inquiry, provided information in response to Plaintiff’s harassment

complaint, and thus his retaliatory intent could not be transferred to Empress under

the Cat’s Paw theory. (Id.)

On appeal, Plaintiff ignores the claims she made in the complaint and

arguments presented to the District Court about Gray’s intent being imputed onto

Empress through the Cat’s Paw theory. Instead, she presents the completely new

theory that this Court should expand employer liability with regard to personnel

decisions to negligence, as courts have done in hostile work environment cases.

This Court should not even consider Plaintiff’s new theory of liability

because she failed to raise it on the underlying motion to dismiss (the “Motion”).

Moreover, Plaintiff’s argument is antithetical to Second Circuit precedent which

2 The Appendix filed by Plaintiff in this appeal will be referred to as “A.”


3

does not recognize employer liability in negligence for personnel decisions unless

the employer’s motivation, intent or purpose is improper. In other words, as long

as an employer makes a personnel decision in good faith, without discriminatory or

retaliatory intent, it cannot be held liable, even if the decision is incorrect or

unwise.

Even if this Court were to adopt this expansion of liability for personnel

decisions, it would not impact the outcome here and therefore is not ripe for

adjudication. There was no allegation that Empress knew or should have known

that Gray harbored retaliatory animus against Plaintiff. Indeed, when Empress

approached Gray about Plaintiff’s harassment complaint, it believed this was the

first time he was being notified of Plaintiff’s complaint. Therefore, when he

immediately provided evidence of a consensual relationship, Empress had no

reason to believe that it was fabricated, as he would not have had motive or an

opportunity to do so.

Finally, there are strong policy reasons for allowing negligence in hostile

work environment cases that are not present in the context of an employer’s

personnel decisions. For example, holding employers liable for standing idle when

they are presented with actual complaints of harassment encourages employers to

maintain anti-discrimination and harassment policies, develop a complaint

procedure for harassment victims, and provide corrective action to stop the


4

harassment. Plaintiff fails to provide any such policy reasons for expanding

negligence liability to personnel decisions. Indeed, doing so would provide an

impediment for employers to make personnel decisions, cause them to be liable for

a personnel decision even if they did not possess a discriminatory motive, and

place a new and onerous burden on employers to investigate employees who

provide information relevant to make a personnel decision. It would further force

the courts to assess employers’ personnel decisions, not for illicit motive, but for

the sufficiency of the investigation involving a personnel decision. This Court has

already rejected being placed in a position of “super-employer” in which it would

have to determine the wisdom of personnel decisions.

The Court correctly dismissed the complaint under present Second Circuit

precedent. It should not expand employer’s liability for personnel decisions to

negligence, and even if it does, it will not result in liability for Empress here. As

such, the District Court’s Judgment dismissing the complaint against Empress

should be affirmed.


5

COUNTER-STATEMENT OF FACTS3

A. For More Than Two Months, Plaintiff Was Harassed

By Gray Without Empress’s Knowledge

Empress is a family-run business providing emergency and non-emergency

medical transport services. On or about July 15, 2013, Empress hired Plaintiff as

an Emergency Medical Technician, working on an ambulance crew. (A. 8, ¶ 13.)

Gray worked as a dispatcher for Empress. (A. 9, ¶ 14.) Gray and Plaintiff

met in or about October 2013, and Gray began pursuing Plaintiff romantically. (A.

9, ¶ 14.) They exchanged cell phone numbers. (A. 9, ¶¶ 14-15.)

From in or about October 2013 through January 8, 2014, Gray flirted with

Plaintiff. (A. 9, ¶ 16.) He asked her out on dates, put his arm around her and sent

her texts on occasion. (A. 9, ¶¶ 16-17.) Plaintiff rejected Gray’s advances and told

him that she was not interested in him. (A. 9, ¶ 16.) Plaintiff did not report any of

this conduct to Empress, rather she tried to ignore him, hoping his advances would

stop. (A. 9, ¶ 16.)

3 Because Empress brought its motion to dismiss pursuant to Federal Rule 12(b)(6), it accepts,

for the purposes of this appeal only, the truthfulness of Plaintiff’s allegations set forth in the First

Amended Complaint.


6

B. Upon Notice, Empress Immediately Investigated

Plaintiff’s Complaint of Harassment__________

On or about January 8, 2014, Plaintiff and Gray were both working at

Empress’s offices. (A. 9, ¶ 18.) Gray told Plaintiff that he could make her leave

her boyfriend, and that he was going to send her something. (A. 9, ¶ 18.)

At or about midnight on January 9, 2014, Gray sent a text of a picture of his

penis to Plaintiff. (A. 9-10, ¶ 19.) She claims that she did not respond to this text,

and became very distressed and upset. (A. 10, ¶¶ 19-20.)

At the end of Plaintiff’s shift at approximately 6:45 a.m., she told Michael

Blecker, one of Empress’s field officers, what Gray did. (A. 10, ¶ 20.) Blecker

immediately told Plaintiff, “We’re going to deal with this.” (A. 10, ¶ 21.) Blecker

brought Plaintiff into an office, and instructed her to write a complaint and send it

to Elizabeth Shephard (Empress’s Human Resources Manager), Scott Holland

(Plaintiff’s supervisor) and Sheri Baia (Plaintiff’s other supervisor). (A. 10, ¶ 21.)

Gray then entered the room and saw Plaintiff crying and typing at a

computer. (A. 10, ¶ 22.) Plaintiff believed that Gray realized that she was writing

a complaint about him. (A. 10, ¶ 22.) Gray twice entered and left the room, and

on one occasion asked Plaintiff if she was reporting him to Empress. (A. 10-11, ¶

23.) According to Plaintiff, as Gray left the office, he spoke with Almairis Zapata,

another emergency medical technician, and asked her to tell Empress that Plaintiff

and Gray were in a relationship. (A. 11, ¶¶ 24-25.) Gray told Zapata that he sent a


7

picture of his penis to Plaintiff and was worried that he would lose his job. (A. 11,

¶ 25.)

At approximately 6:58 a.m. on January 9, 2014, Plaintiff emailed Shephard,

Holland and Baia a complaint against Gray. (A. 11, ¶ 26.) Plaintiff stated that

Gray sent her a picture of his “private parts” and that she felt disgusted, violated

and disrespected. (Id.) She further stated that she felt uncomfortable, and did not

believe that she could continue to go to work with Gray there. (Id.)

That same morning, Baia and Shephard arrived at Empress’s offices at 9:00

a.m. and met with Plaintiff. (A. 12, ¶ 27.) Plaintiff told them what occurred with

Gray. (A. 12, ¶ 27.) Shephard stated, “Thank you for coming in and telling your

story. We don’t tolerate this sort of behavior here.” (A. 12, ¶ 27.) Both Shephard

and Baia told Plaintiff that they will “sort the situation out.” (A. 12, ¶ 27.)

C. Gray Fabricated Evidence and Tricked

Empress Into Believing Plaintiff Took

Part in Consensual Sexual Banter

During that same morning of January 9, 2015, Gray manipulated a sexual

text exchange he had with another woman to make it appear as though he had

engaged in consensual sexual banter with Plaintiff. (A. 12, ¶¶ 29-30.) Plaintiff

alleges that after reviewing Plaintiff’s allegations against Gray, Empress’s

management questioned Gray, and Gray presented Empress with screen shots of

this manipulated sexual text exchange. (A. 12, ¶¶ 27, 31.) However, Gray actually


8

showed his phone to Empress immediately upon being asked. (SA. 42.)4 Shephard

confirmed the phone number on the exchange matched Plaintiff’s phone number of

record. (Id.)

Later that morning, Plaintiff met with Rahily, Minerva and Shephard. (A.

12-13, ¶ 32.) Shephard told Plaintiff that she had spoken with Gray about the

allegations, and that Gray provided her with pictures and text messages, including

the picture Plaintiff sent to Gray of herself in a racy pose, which demonstrated that

the sexual text exchange between Gray and Plaintiff was consensual. (A. 13, ¶ 34.)

Plaintiff denied that she participated in the sexual text conversation with Gray. (A.

13, ¶ 35.) Shephard responded that she, Rahily and Minerva examined the racy

photograph sent to Gray and determined that it was Plaintiff.5 (A. 13, ¶ 35.)

4 The EEOC filings between the parties were proper for consideration on the Motion. On a

motion to dismiss, the Court may take judicial notice of documents that are integral to or referred

to in the complaint. See, e.g., Subaru Distrib. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d

Cir. 2005). The Court may also take judicial notice of documents filed in related litigation or in

other courts by a party. Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991); see,

e.g., Nealy v. Berger, 2009 U.S. Dist. LEXIS 20939, at *2-3- (E.D.N.Y. Mar. 16, 2009) (taking

judicial notice of court filings); In re Enron Corp., 379 B.R. 425, 431 n.18 (S.D.N.Y. 2007)

(appropriate to take judicial notice of public records such as court filings). Courts regularly take

notice of EEOC filings related to claims in employment discrimination actions under Title VII.

See, e.g., Lindner v. International Bus. Mach. Corp., 2008 U.S. Dist. LEXIS 47599, at *2-3, n.1

(S.D.N.Y. June 18, 2008) (taking judicial notice of EEOC and New York Department of Human

Rights filings); Muhammad v. N.Y. City Transit Auth., 450 F. Supp. 2d 198, 204-05 (E.D.N.Y.

2006) (taking judicial notice of plaintiff’s EEOC charge and the agency's determination); Evans

v. N.Y. Botanical Garden, 2002 U.S. Dist. LEXIS 16434, at *(SA. 6-44) (S.D.N.Y. Sept. 4,

2002) (taking judicial notice of documents issued by the New York State Department of Human

Rights). Exhibits 1 and 2 to Wabnik’s Declaration were part of the EEOC filings in this matter.

(SA. 6-44.)

5 In the Complaint, Plaintiff does not deny that the photo sent to Gray was of her. (A. 13, ¶ 36.)

Rather, she alleges that the photograph “was by no means unequivocally of Plaintiff” and that


9

Plaintiff asked to see the photograph, but according to Plaintiff, Shephard refused.

(A. 13, ¶ 35.) Plaintiff offered her phone to prove she was not involved in the

sexual texting with Gray, but Shephard, Rahily and Minerva refused to look at it.

(A. 13, ¶ 37.) They discharged Plaintiff in light of the evidence presented by Gray.

(A. 14, ¶ 38.)6

Plaintiff claims that by doctoring his iPhone to make it appear as if Plaintiff

engaged in consensual sexual banter with him, Gray manipulated Empress and

influenced Empress’s decision to discharge Plaintiff. (A. 14, ¶ 40.) Plaintiff

contends that Gray possessed retaliatory animus against Plaintiff, that Empress was

simply a conduit to Gray’s retaliatory prejudice, and Empress was duped by Gray’s

presentation of the manipulated evidence. (A. 14-17, ¶¶ 40-49.) There is no

allegation that Empress maintained any discriminatory or retaliatory animus

against Plaintiff, but only that Gray’s discriminatory or retaliatory animus, under

the Cat’s Paw theory, should be imputed onto Empress. (A. 15-16, ¶¶ 44-47.)

D. The District Court Properly Dismissed

the Complaint Against Empress

Empress moved to dismiss the Amended Complaint (the “Motion), arguing

that the Cat’s Paw theory did not apply because Gray was not Plaintiff’s supervisor

because the photograph shows a small fraction of a face, it cannot be concluded that it was

Plaintiff. (A. 13, ¶ 36.) Although the skin tone of the person in the picture is light brown,

Plaintiff somehow concludes that the picture is of an African American woman, and not a Latina

such as Plaintiff. (A. 13, ¶ 36.)

6 Empress similarly discharged Gray for violating its policies.


10

or otherwise delegated with any authority to make him an agent of Empress, and

thus his alleged retaliatory intent could not be transferred to Empress. (SA. 55-

59.)7 Empress also addressed Plaintiff’s claim that its investigation was

inadequate, citing authority that a private at-will employer cannot be liable for a

wrongful termination as long as its investigation and determination was made in

good faith. (SA. 60-63..)

Plaintiff opposed Empress’s Motion on two grounds: (1) Gray’s status as a

non-supervisor was irrelevant to the Cat’s Paw theory of liability, and the

discriminatory or retaliatory intent of any employee should automatically transfer

to the decision maker, and (2) Empress’s investigation into the matter was not

sufficiently independent to prevent Gray’s retaliatory intent from being transferred

to the final decision-maker under the Cat’s Paw theory. (SA. 77-86.) On the

second point, all of Plaintiff’s cited authority addressed whether an employer’s

investigation was sufficiently independent to “cut off” the biased employee’s intent

from being transferred to the employer under the Cat’s Paw theory. (SA. 82-85.)

Plaintiff did not make an argument or any cite authority holding that an employer

should be liable under a negligence theory for its personnel decisions. (SA. 71-

93.)

7 The Supplemental Appendix filed by Empress in this appeal will be referred to as “SA.”


11

In reply, Empress emphasized that for Gray’s alleged discriminatory or

retaliatory intent to transfer to it under Cat’s Paw theory, Gray had to have been a

supervisor or at least someone to whom it delegated authority or with whom it had

a relationship of trust and confidence so as to be an agent. (SA. 97-101.) Empress

further explained that Plaintiff’s second point also involved application of the Cat’s

Paw theory, and argued that regardless of the sufficiency of its investigation,

Gray’s alleged retaliatory intent still could not be imputed to Empress because he

was not an agent. (SA. 102-03.)

Oral argument of the Motion mainly focused on whether an agency

relationship between Gray and Empress was necessary for Gray’s alleged

retaliatory animus to be transferred to Empress under the Cat’s Paw theory. (SA.

113-125.) Empress argued that it cannot be held liable for a personnel decision,

even if the decision was wrong, unless it was made in bad faith. Plaintiff, in one

conclusory sentence, stated that Empress’s investigation should be subject to a

reasonableness inquiry under a negligence standard. (SA. 114.) Plaintiff later

clarified that she was not arguing what Empress could have or should have done

during the investigation, but rather that such investigation should not immunize

Empress and the Cat’s Paw theory should allow Gray’s retaliatory animus to

transfer to Empress. (SA. 123-25.) Specifically, Plaintiff argued that the Cat’s

Paw theory is based on the transfer of improper intent from the non-decision maker


12

to the final decision maker, and that only an independent investigation can cleanse

the improper intent. (SA. 125.) Empress argued that Gray’s intent did not (and

cannot) transfer under the Cat’s Paw theory because he was not an agent of

Empress. (SA. 115-16, 118, 120-22.)

The Court addressed the arguments discussed by the parties, and correctly

determined that the Cat’s Paw theory was inapplicable, as a matter of law, because

Gray’s status did not allow for his retaliatory intent to be transferred to Empress

under agency principles. (A. 33-37.) The Court explained that under both of

Plaintiff’s arguments, Gray needed to be in a position of authority or confidence,

and thus an agent of Empress, for his intent to transfer to Empress. (A. 36.)

E. Plaintiff Raises New Theory On This Appeal

On appeal, Plaintiff scraps all of her arguments made in the Motion, and

instead posits an entirely new theory of liability, i.e., that Empress must be held

vicariously liable for Gray’s alleged retaliatory conduct under negligence theory.

(Pl. App. Br., 13-23.) To support this new theory, Plaintiff cites new authority,

wholly absent from her opposition to the underlying Motion, and thus this theory

was not before the District Court. (Id. at 17.)


13

A R G U M E N T

This Court “review[s] a district court’s grant of a motion to dismiss under

Rule 12(b)(6) de novo.” Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d

Cir. 2010).

To sufficiently plead a claim, a complaint must allege facts that, if accepted

as true, "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Plaintiffs must plead facts that “nudge their claims across the line from

conceivable to plausible.” Bell Atl. Corp., 550 U.S. at 570; Ashcroft, 556 U.S.

662. If the complaint, with all reasonable inferences drawn in favor of Plaintiff,

asserts no claim, it should be dismissed. Chambers v. Time Warner, Inc., 282 F.3d

147, 152 (2d Cir. 2002); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).

Viewing the Complaint in a light most favorable to Plaintiff, no claim was asserted

against Empress, and thus Plaintiff’s claims against Empress were properly

dismissed.

POINT I

THE DISTRICT COURT CORRECTLY HELD THAT EMPRESS

CANNOT BE LIABLE UNDER THE CAT’S PAW THEORY

An employer may be held vicariously liable under the Cat’s Paw theory

when an employee cloaked with authority from the employer provides false


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14

information about another employee intending to cause the employer to take

adverse action against that employee, and the employer’s final decision maker

relies on that tainted information to make that personnel decision. See Staub v.

Proctor Hosp., 562 U.S. 411, 422 (2011). In that scenario, the biased employee

must be an agent of the employer for the discriminatory or retaliatory intent of the

biased employee to transfers to the employer. Staub, 562 U.S. at 422; Gomez v.

City of New York, 2014 U.S. Dist. LEXIS 113674, at *13 (S.D.N.Y. Aug. 14,

2014); Kregler v. City of N.Y., 987 F. Supp. 2d 357, 368 (S.D.N.Y. 2013), aff’d,

604 F. App’x 44 (2d Cir. 2015).

The Cat’s Paw theory was created to prevent an employer from wholly

insulating itself from liability simply because the employer’s final decision maker

did not harbor discriminatory animus. See Staub, 562 U.S. at 420-21 (employer

not immune from liability if the biased supervisory employee’s input was a casual

factor of adverse action instituted by the final decision maker.); Kregler, 987 F.

Supp. 2d at 365-66 (same). Recognizing that there are often multiple agents

supervising and evaluating an employee, the Cat’s Paw theory may allow the

discriminatory intent of a supervisor, manager or other person of authority to be

transferred to a final decision maker who relied on the evaluation or information

provided by the biased supervisor, manager or person of authority. See Staub, 562

U.S. at 420-21; Kregler v. City of N.Y., 987 F. Supp. 2d at 368 (for Cat’s Paw


15

theory to apply, the biased employee, by virtue of his position of relationship with

the employer or decision maker, must “occupy a position of sufficient

confidence… to be able to corrupt the determination as issue”).

In the underlying Motion, Plaintiff argued that Empress should be held

vicariously liable for Gray’s alleged retaliatory intent regardless of his low-level

status with Empress. (SA. 79-80.) The District Court correctly rejected that

argument, and determined that Gray’s alleged retaliatory intent cannot transfer to

Empress because he was neither a supervisor, nor an employee who maintained a

position of confidence or authority so as to be deemed an agent of Empress. (A.

36-37.) The District Court’s decision is supported by all applicable legal authority.

See Staub, 562 U.S. at 422 (liability to employer under Cat’s Paw theory only

when a supervisor is the biased employee); Nagle v. Marron, 663 F.3d 100, 117

(2d Cir. 2011)(acknowledging Cat’s Paw theory based on discriminatory animus of

employer’s agent); Gomez, 2014 U.S. Dist. Lexis 113674, at *13 (Cat’s Paw

theory inapplicable because biased employer was not plaintiff’s supervisor and

thus not an agent of employer); Kregler, 987 F. Supp. 2d at 368 (Cat’s Paw theory

premised on the bad actor having a personal or official relationship with decision

maker such that the decision maker places reliance and trust in the tainted

recommendation of bad actor).


16

Plaintiff accuses the District Court of only addressing employer liability for

employee conduct occurring within the scope of employment, and not addressing

liability of out-of-scope conduct through traditional agency principles. (Pl. App.

Br., 18-19.) However, the District Court expressly addressed both scenarios,

holding that “[e]ither of these possibilities [in scope actions or out-of-scope actions

through traditional agency principles] requires that the biased person, by virtue of

his position or relationship with the employer or decision maker, ‘occupy a

position of sufficient confidence… to be able to corrupt the determination as

issue.’” (internal citation omitted). (A. 36.) Indeed, all of the authority cited by

Plaintiff regarding agency principles supports the District Court’s holding that

under the Cat’s Paw theory an employer cannot be liable for the out-of-scope

conduct of an employee unless that employee has an agency relationship with

employer. (Pl. App. Br., 15-17.) In determining who is an “agent” of an

employer, the United States Supreme Court held that Congress intended “to place

some limits on the acts of employees for which employers under Title VII are to be

held responsible.” Meritor Savs. Bank v. Vinson, 477 U.S. 57, 72 (1986); see also

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760, 763 (1998). To determine

those limits for conduct occurring outside the scope of employment, the United

States Supreme Court used the “tort by the existence of the agency relation”

principle set forth in the Restatement (Second) of Agency, and held that an


17

employer can be held vicariously liable for out-of-scope conduct under that

principle only when the bad actor has an “agency relation” with the employer.

Burlington, 524 U.S. at 758, quoting Restatement (Second) of Agency, § 219(2)(d)

(1957); see also Faragher v. City of Boca Raton, 524 U.S. 775, 802 (1998) (“aided-

by-agency relation principle” considered in determining whether employer

vicariously liable for harassment conducted by plaintiff’s supervisor). Burlington

held that “the aided in agency relation standard … requires the existence of

something more than the employment relation itself,” specifically, that the bad

actor had supervisory authority over the plaintiff. Burlington, 524 U.S. at 760,

763-65 (emphasis added); see Faragher, 524 U.S. at 792 and 802-03; Meritor Savs.

Bank, 477 U.S. at 72.

Accordingly, in applying the “aided in agency relation standard” to the Cat’s

Paw theory, for the employer to be vicariously liable for the retaliatory intent of a

biased employee, i.e., for the retaliatory intent to be transferred to the employer,

the biased employee must be someone with supervisory authority, or at least

someone to whom the employer delegated authority, or with whom the employer

had a relationship of trust and confidence, so as to deem that employee to be an

agent of the employer. See Burlington, 524 U.S. at 763-65; Faragher, 524 U.S. at

792 and 801-04; see also Staub, 562 U.S. at 422 (limiting Cat’s Paw liability to

acts of supervisors); Kregler, 987 F. Supp. 2d at 368.


18

Here, given that Gray’s alleged actions of fabricating evidence clearly

occurred outside of the scope of his employment,8 his intent can only be transferred

to Empress if he was deemed to be an agent of Empress. See Burlington, 524 U.S.

at 758, quoting Restatement (Second) of Agency § 219(2)(d) (1957); Faragher, 524

U.S. at 802. It is undisputed that Gray was nothing more than a dispatcher with

Empress—a low-level employee with no supervisory or management authority.

(Pl. App. Br., 6; A. 9, ¶ 14.) Plaintiff did not (and cannot) allege that Gray

supervised her, or that Empress delegated to him any authority to manage or

evaluate Plaintiff (or any employee for that matter). (A. 7-20.) Plaintiff did not

(and cannot) allege that Gray was in a position of trust or special confidence with

Empress that would give his opinion any special weight. (Id.) Rather, he was a

low-level employee who responded to the questions posed to him during

Empress’s investigation about the allegations against him. Accordingly, the

District Court correctly held that because Gray did not have any authority or

position of confidence with Empress, his alleged retaliatory intent cannot transfer

to Empress under the Cat’s Paw theory. See Staub, 562 U.S. at 422 (limiting Cat’s

Paw liability to acts of supervisors); Kregler, 987 F. Supp. 2d at 368; see also

Gomez, 2014 U.S. Dist. LEXIS 113674, at *13. Indeed, Plaintiff does not even

8 It is well settled that harassment and falsification of information are actions that are outside the

scope of employment. Burlington, 524 U.S. at 757; Faragher, 524 U.S. at 793. Plaintiff

conceded that point. (Pl. App. Br., 16.)


19

argue that Gray’s discriminatory intent should be transferred to Empress based on

the “existence of an agency relation with Empress.” Thus, the District Court’s

decision should be affirmed.

POINT II

EMPRESS CANNOT BE HELD VICARIOUSLY LIABLE UNDER

A NEGLIGENCE THEORY FOR ITS PERSONNEL DECISIONS

A. Plaintiff Waived the Argument That

Empress Can Be Held Liable for

Gray’s Actions Under A Negligence Theory

For the first time on this appeal, Plaintiff argues that Empress should be held

liable for its personnel decision based on negligence. Specifically, Plaintiff argues

that Empress should be liable for Gray’s action because it should have known that

he harbored retaliatory animus against Plaintiff and, based on this retaliatory

animus, provided false information about Plaintiff with the intention of causing

Empress to discharge her. (Pl. App. Br., 17-19.) That argument should be deemed

waived because it was not raised in the underlying Motion.

“It is a well-established general rule that an appellate court will not consider

an issue raised for the first time on appeal.” Greene v. United States, 13 F.3d 577,

586 (2d Cir. 1994); see Askins v. Sergeant John Doe #1, 727 F.3d 248, 252 (2d

Cir. 2013). Although this Court may exercise discretion to consider waived

arguments to avoid manifest injustice, the “circumstances normally ‘do not militate

in favor of exercise of discretion to address… new arguments on appeal’ where


20

those arguments were ‘available to the [parties] below’ and they ‘proffer no reason

for their failure to raise the arguments below.’” In Re Fiorano Tile Imports, Inc.,

619 Fed. Appx. 33, 33 (2d Cir. 2015), quoting In Re Nortel Networks Corp.

Securities Litigation, 539 F.3d 129, 133 (2d Cir. 2008).

In opposition to Empress’s Motion, Plaintiff argued that Gray’s retaliatory

animus should have been transferred to Empress under the Cat’s Paw theory. (SA.

77-82.) Nowhere in her memorandum of law or complaint did she assert that

Empress should be liable for negligence.

Even in response to Empress’s argument that it cannot be liable for

incorrectly discharging Plaintiff unless its investigation was conducted in bad faith,

Plaintiff failed to raise the negligence theory. Rather, she argued that Empress

cannot be immunized from liability “by virtue of merely undertaking an

independent investigation irrespective of its sufficiency,” and that Gray’s intent

should be imputed onto Empress under the Cat’s Paw theory. (SA. 83.) Indeed,

when discussing Empress’s investigation, she cited Staub for the proposition that

the Cat’s Paw theory should apply regardless of Empress’s investigation. (SA. 83.)

All of the legal authority cited by Plaintiff discussed the Cat’s Paw theory—when

the biased employee’s intent can be imputed to the employer, not negligence. (SA.

84-86.)


21

On this appeal, however, Plaintiff argues for the first time that Empress

should be liable for negligence based on its decision to discharge Plaintiff. (Pl.

App. Br., 17-22.) Plaintiff cites new authority (although none from the U.S.

Supreme Court or Second Circuit), which expanded the liability of personnel

decisions to negligence. (Id. at 17.) That argument is nowhere to be found in

Plaintiff’s Motion papers or the Complaint, and Plaintiff only alluded to it in one

sentence during oral argument before the District Court. Thus, contrary to

Plaintiff’s contention, the District Court addressed all of the arguments raised in

the underlying Motion, which is why Plaintiff had to cite new authority here to

support her negligence argument.

There was no reason why Plaintiff could not have raised this issue during the

underlying Motion. Accordingly, the current issue before this Court was not raised

until this appeal, and thus, should be deemed waived by Plaintiff. See In Re

Fiorano Tile Imports, Inc., 619 Fed. Appx. At 33.

B. Empress Cannot Be Held Liable For A Personnel

Decision Under Plaintiff’s New Negligence Theory

Plaintiff argues that Empress should be held liable for its decision to

discharge her based on negligence theory. (Pl. App. Br., 17-19.) In other words,

she argues that an employer should be liable, under Title VII, for careless or

unwise personnel decisions even when the employer made the decision in good


22

faith and did not possess improper intent or motivation. (Id.) However, this

Circuit has flatly rejected this theory of liability.

When it comes to an employer’s personnel decisions, e.g., whether to

discharge, suspend or promote an employee, the Second Circuit focuses

exclusively on the intent and motivation of the employer. See Byrne v. Telescetor

Resources Group, 339 Fed. Appx. 13, 17 (2d Cir. 2009)(regarding personnel

decisions employer liable only if conduct is discriminatory); McPherson v. New

York City Dep’t of Ed., 457 F.3d 211, 216 (2d Cir. 2006)(department’s belief that

plaintiff had used corporal punishment against students, regardless of whether the

allegations were true, constituted legitimate, nondiscriminatory basis for teacher’s

termination); Norton v. Sam’s Club, 145 F.3d 114, 120 (2d Cir. 1998) (employer

cannot be held liable for “stupid or even wicked things,” only for discriminating);

Davis v. State Univ. of New York, 802 F.2d 638, 641 (2d Cir. 1986).9

For an employer to be liable under Title VII for a personnel decision, it must

have a discriminatory or retaliatory intent; an employer cannot be held liable for a

personnel decision made in good faith, even if unwise or careless. See Byrne, 339

9 See also Hodges v. Rensselaer Hartford Graduate Ctr., Inc., 2008 U.S. Dist. LEXIS 22228, at

*22 (D. Conn. Mar. 20, 2008) (“the Court should not second-guess the defendant’s business

decisions, however unwise, so long as they are not made for discriminatory reasons”); Maturine

v. American Int’l Group, Inc. , 2006 U.S. Dist. LEXIS 80933, at 22 (S.D.N.Y. Nov. 6, 2006 (the

court should not second guess non-discriminatory decisions by employer even if unwise,

unreasonable or wrong); Costello v. St. Francis Hosp., 258 F. Supp. 2d 144, 155-56 (E.D.N.Y.

2003) (defendant’s belief that plaintiff falsified timesheets constituted a legitimate basis for her

termination, regardless of the fact that she offered evidence indicating that the belief was

incorrect).


23

Fed. Appx. at 17 (employer will not be liable if the reasons for the decision were

nondiscriminatory, as a court cannot second-guess the wisdom of a business

decision); McPherson, 457 F.3d at 216 (reliability of evidence supporting

employer’s discharge decision irrelevant in assessing employer liability under Title

VII); Finn v. New York State Office of Mental Health, 2011 U.S. Dist. LEXIS

115950, at *39 (S.D.N.Y. Oct. 6, 2011)(“…if the employer relied upon [reporting

employee’s] complaints in good faith, there is no violation of the employee’s

rights, even if the complaints turn out to be wrong or inaccurate.”); Adia v. MTA

Long Island R.R. Co., 2006 U.S. Dist. LEXIS 51045, at *26 (E.D.N.Y. July 26,

2006)(same); Gorley v. Metro-North Commuter R.R., 2000 U.S. Dist. LEXIS

18427, at *24 (S.D.N.Y. Dec. 21, 2000)(same).

The culpability involved with negligence does not include the wrongdoer’s

motivation, intent or purpose, but rather is the failure to exercise the standard of

care that a reasonably prudent person would have exercised in a similar situation.

Black’s Law Dictionary 1061 (8th ed. 1999). On the other hand, good faith is the

absence of an improper intent, purpose or motive, such as discrimination, fraud or

dishonesty; bad faith (the mirror image of good faith) requires a state of mind or

culpability beyond negligence. See Spellacy v. Airline Pilots Ass’n, 156 F.3d 120,

126 (2d Cir. 1998); Cifarelli v. Village of Babylon, 93 F.3d 47, 52 (2d Cir. 1996);

Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384, n.5 (1983)(“Bad


24

faith, the mirror image of good faith, connotes a dishonest purpose.”); Black’s

Law Dictionary 149 (8th ed. 1999) (“bad faith, n. 1. [d]ishonesty of belief or

purpose.”) The Second Circuit in McPherson summed up the measure by which it

judges an employer’s personnel decision, holding that “[i]n a discrimination [or

retaliation] case…we are decidedly not interested in the truth of the allegations

against plaintiff. We are interested in what ‘motivated the employer.’” 457 F.3d at

216, quoting United States Postal Service Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983). Plaintiff failed to cite any U.S. Supreme Court or Second Circuit

authority that questions or challenges the law of this Circuit. Thus, this Court

should follow the well-settled law of this Circuit, which places the focus on the

employer’s motivations when assessing employer liability for personnel decisions

under Title VII.

It is undisputed that Empress acted in good faith when it discharged

Plaintiff. Plaintiff does not allege that Empress’s management possessed any

discriminatory or retaliatory intent. (A. 7-20.) It is undisputed that Empress’s

management comforted Plaintiff when she made her harassment complaint,

encouraged her to submit a written complaint detailing the alleged harassment,

investigated the matter and analyzed the evidence. (A. 10-13, ¶¶ 20-21, 26-28, 31-

35.) When Gray presented Empress with the evidence demonstrating that the

sexual texting was consensual, it allowed Plaintiff to respond. (A. 13, ¶¶ 33-35.)


25

Although Plaintiff claims Empress got it wrong by not discovering that Gray

altered the evidence, it is undisputed that Empress made its decision to discharge

Plaintiff free of any discriminatory or retaliatory intent, i.e., in good faith. (A. 14,

¶ 40.) As such, Empress is free from liability for its decision to terminate Plaintiff.

C. Even If Employer Liability For Personnel Decisions

Is Expanded To Negligence, Plaintiff Fails To State A Claim

This simply is not an appropriate case for this Court to consider expanding

an employer’s liability for personnel decisions to negligence. For Empress to be

negligent under Plaintiff’s proposal, she would need to allege that Empress should

have known that Gray harbored retaliatory animus against Plaintiff and provided

the information and evidence during the investigation for the purpose of retaliating

against Plaintiff. Plaintiff did not (and cannot) make those allegations.

Plaintiff alleged that while she was typing up the complaint against Gray in

Empress’s offices at about 6:45 a.m., Gray entered the room and surmised that

Plaintiff was making a complaint against him. (A. 10, ¶¶ 20-22.) Plaintiff asserted

that Gray manipulated his text messages to make it appear as if he and Plaintiff

engaged in consensual sexual banter and presented those altered texts to Empress

when Empress confronted Gray about Plaintiff’s allegations. (A. 12, ¶¶ 29-31.)

Empress analyzed the evidence presented by Gray, confronted Plaintiff with the

evidence, and discharged both Plaintiff and Gray. (A. 13, ¶¶ 34-35, 38.)


26

Based on those allegations, when Empress confronted Gray and immediately

received the altered texts, it had no knowledge that Gray had allegedly surmised

two or three hours earlier that Plaintiff made a sexual harassment complaint against

him. As gleaned from Plaintiff’s Complaint, Empress believed that Gray first

learned of Plaintiff’s accusations when it confronted Gray, and therefore had no

reason to believe that the texts were altered to retaliate against Plaintiff, as he

would not have had the opportunity to alter the texts.

In addition, the evidence presented by Gray to Empress was compatible with

Plaintiff’s complaint. Plaintiff complained that Gray sent a picture of his penis to

her, and the evidence presented by Gray fit neatly into a reasonable scenario that

he sent the picture as part of consensual sexual banter. (SA. 29-40) Gray did not

deny sending Plaintiff inappropriate texts. Nothing in the evidence presented by

Gray informed Empress that his motivation behind presenting the evidence was

tainted with retaliatory animus.

Plaintiff also had a chance to respond to Gray’s evidence, and did not tell

Empress that Gray allegedly knew she made a complaint against him two hours

earlier and must have manipulated the texts to retaliate against her. Instead, she

just denied that she was involved in that text exchange. (A. 13, ¶ 35.) There was

no other evidence before Empress that reasonably should have caused it to believe

that Gray altered the texts to retaliate against Plaintiff. Instead, Plaintiff just


27

alleges that Empress should have figured out that the texts were altered if it

investigated more thoroughly, and in turn, would have realized his illicit

motivations. (A. 16, ¶ 46.) Specifically, Plaintiff claims that Empress should have

discovered a discrepancy in the time of the texts. However, Empress did conduct a

reasonable investigation by viewing Gray’s phone that contained the text exchange

and comparing the number in the text exchange with Plaintiff’s cell number on file;

the numbers matched. (SA. 42.).) In addition, Shephard and Rahily both believed

the racy photograph contained in the text exchange was Plaintiff. (A. 13, ¶ 35.)

That is certainly sufficient, especially given that Gray immediately presented his

phone to Empress when it asked for it.10

(Id.) Empress cannot be required to

conduct a perfect and endlessly thorough investigation if there is nothing obvious

to demonstrate that Gray fabricated the evidence or presented the evidence with a

retaliatory motive. Plaintiff alleges that Empress was wrong to conclude that she

engaged in consensual sexual banter with Gray, but Empress’s assessment of the

evidence was reasonable, and it should not be held negligent under this factual

scenario.

10

Plaintiff’s theory that she did not have time to take the racy photo of herself in response to the

photo of Gray’s penis disregards the simple fact that she could have taken the picture at any time

and had it in her phone to send to Gray. (Pl.’s App. Br. 20-21.) Plaintiff’s alternate theory that it

would be “bizarre” for her to complain about Gray if she was a willing participant ignores basic

human behavior and, again, improperly requires Empress to delve into the psyche of an

employee. (Id. at 21.) Similarly, an examination of Plaintiff’s phone would not demonstrate

anything as she could easily delete her communications with Gray or manipulate them, just as

she accuses Gray of doing. (Id. at 22.)


28

Thus, even if this Court extends vicarious liability under the Cat’s Paw

theory to negligence of the employer, i.e., Empress should have known that Gray’s

retaliatory animus infected the information he provided to it, Plaintiff’s allegations

fail to state a claim and the District Court’s dismissal of Plaintiff’s complaint

should be affirmed.

D. Employer Liability In Making Personnel

Decisions Should Not Be Expanded to Negligence

Because Empress cannot be held liable even under negligence theory as

described in Point II(C), this Court should not even determine whether personnel

decisions should be subject to negligence. In this appeal, Plaintiff requests that this

Court issue an opinion that will have no implications of practical enforcement

upon the parties, in violation of the Actual Case or Controversy Clause of the

Constitution. See U.S. Const. art. III, § 2, cl. 1; Browning Debenture Holders’

Committee v. DASA Corp., 524 F.2d 811, 817 (2d Cir. 1975); Mitskovski v.

Buffalo & Fort Erie Pub. Bridge Auth., 415 Fed. Appx. 264, 266-67 (2d Cir.

2011). Under this Clause, federal courts are prohibited from issuing advisory

opinions and may only adjudicate live cases and controversies in which a

plaintiff’s actual and personal injury is capable of redress by the court. See L.A. v.

Lyons, 461 U.S. 95, 128-29 (1983). If the controversy before a federal court is not

live and continuing but is instead moot, it must be dismissed. See North Carolina

v. Rice, 404 U.S. 244, 246 (1971); Mitskovski, 415 Fed. Appx. At 266-67;


29

Browning Debenture Holders’ Committee, 524 F.2d at 817; S. Jackson & Son v.

Coffee, Sugar & Cocoa Exch., 24 F.3d 427, 431 (2d Cir. 1994).

Here, Plaintiff seeks to expand employer liability for making personnel

decisions from requiring discriminatory intent to negligence, an addition that has

never been considered in this Circuit before. However, this proposed expansion,

even if adopted, would not affect the outcome of this case because, as explained

above, Empress would still not be liable under the expanded theory. Since the

adoption of the expanded theory would have no affect on the parties in this case,

the issue is moot and must be dismissed. See Browning Debenture Holders’

Committee, 524 F.2d at 817 (“When … the remedy sought is a mere declaration of

law without implications for practical enforcement upon the parties, the case is

properly dismissed”). Accordingly, Appellant’s request that this Court to exceed

the bounds of its Constitutional jurisdiction and issue an advisory opinion that will

have no affect on the parties should be disregarded and the motion court’s

dismissal should be affirmed.

Plaintiff argues that this Circuit should adopt her proposed expansion of

employer liability in making personnel decisions to negligence, and reject its long

standing precedent. The only authority cited by Plaintiff to support her argument

is an outlier case from a District Court of the Third Circuit. (Pl. App. Br., 17.)

That case reasoned that because an employer may be vicariously liable for a hostile


30

work environment created by an employee under negligence theory, such liability

should be expanded to personnel decisions. Burlington v. New Corp., 55 F. Supp.

3d 723, 738-39 (E.D. Pa. 2014). That decision, however, wholly ignored the

policy considerations involved when courts expanded employer liability in hostile

work environment cases to negligence, and failed to assess the negative

ramifications of expanding employer liability of personnel decisions to negligence.

(Id.)

Title VII was created in part to facilitate conciliation of employee disputes,

rather than litigation, by encouraging employers to create anti-harassment and

discrimination policies and develop grievance procedures. See Burlington Indus.,

Inc., 524 U.S. at 764. When the courts expanded liability under Title VII to

negligence for hostile work environment claims,11

it was premised on policy

considerations consistent with the intentions of Title VI: (1) it incentivized and

encouraged employers to maintain an anti-harassment and discrimination policies;

(2) it encouraged employees to report harassment; and (3) it encouraged the

employer to resolve workplace harassment issues before they became severe and

pervasive. See id.; Meritor Savs. Bank, 477 U.S. at 71; Snell v. Suffolk County,

782 F.2d 1094, 1103-04 (2d Cir. 1986). The expansion into negligence for hostile

11

For hostile work environment claims an employer can be held liable if it knew or should have

known about the harassment of an employee, and failed to take remedial action to stop the

harassment. See Vance v. Ball State Univ., __ U.S. __, 133 S. Ct. 2434, 2440-41 (2013);

Faragher, 524 U.S. at 789; Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009).


31

work environment cases is beneficial to the individual being harassed (encourages

employer to remedy the harassment), the overall workplace environment

(encourages employer to maintain a workplace free of discrimination and

harassment), and the employer (allows employer to avoid liability for employee

conduct if it takes an active role in remedying harassment). That expansion made

sense because in hostile work environment situations, the employer is presented

with concrete complaints of harassment for which it can take clear action. See

Snell, 782 F.2d at 1104 (duty based on fact that employer is aware of

discriminatory atmosphere and can take reasonable steps to remedy it; the

employer cannot change the personal beliefs of its employees, but it can enforce a

policy to stop harassment).

The benefits of holding an employer liable for negligence in hostile work

environment cases do not apply to personnel decisions. Rather, liability under a

negligence theory for personnel decisions places a new and onerous burden on the

employer to conduct investigations into the motivations of employees who provide

information about another employee that result in an adverse action. When an

employee provides such information about another employee, the employer will be

forced to question and investigate the motives of the employee who provided the

information, which may include inquiry into his or her psychological state, an

analysis of his or her e-mails, and/or a review of his or her personal interactions


32

with other employees, to ensure that he or she does not harbor some sort of bias

against the other employee. Forcing an employer to question and investigate the

reporting employee’s motivations, communications and psychology engenders a

workplace of distrust and resentment.

The proposed expansion of liability will also place the Courts in a position

of a “super-employer,” charged with evaluating an employer’s personnel decisions,

not for discriminatory motives as is currently the standard, but as to the sufficiency

of its investigations regarding personnel decisions to determine if an employer

should have known about some sort of illicit bias held by one of its employees.

That new burden, placed on both employers and the Courts, runs contrary to the

policy that rejects having courts scrutinize the wisdom of an employer’s personnel

decision when such decision was made without any discriminatory motives. (See

Point II(B).)

In addition, the expansion of liability would have little if any effect in

remedying discrimination. In the harassment scenario, when an employee notifies

the employer of the harassment, the employer becomes aware of specific bad acts

and can address those specific acts. In the personnel decision context, known

improper acts are not presented to the employer to remedy. Rather, the employer

will be burdened to discover whether a reporting employee had some sort of

underlying discriminatory or retaliatory animus which motivated him or her to


33

provide the unsatisfactory evaluation or information of misconduct before it takes

any action against the employee for poor performance or misconduct.

The authority cited by Plaintiff about employer investigations all relate to

hostile work environment claims, and the employer’s duty to investigate

complaints of harassment of which it is aware—they do not support expanding

liability of personnel decisions to negligence. (Pl. App. Br., 22.) In Cox v.

Onondaga, the plaintiffs (white police officers) claimed that the employer’s

investigation into the validity of their racial harassment complaints amounted to

further harassment and retaliation against them by the employer. 760 F.3d 139,

144 (2d Cir. 2014). This Court noted that in the racially charged work

environment at issue, the harassment complaints by the white officers against an

African American Deputy, which were inconsistent, could amount to harassment

of that Deputy. (Id. at 149.) In analyzing whether the investigation into the

validity of the plaintiffs’ complaints can be viewed as harassment or retaliation, the

Second Circuit reiterated the principle that, “Employers are under an independent

duty to investigate and curb racial harassment12

by lower level employees of

which they are aware,” to explain the tension between investigating potential

harassment against the African American Deputy and the claim of retaliation made

by the white officers for making the complaint. (Id. at 149.) The Second Circuit

12

Plaintiff altered the quote to read, “discrimination and/or retaliation.” (Pl. App. Br. 22.)


34

was just reciting the employer’s duty to investigate harassment complaints, which,

as described above, is a duty attributed to employers in hostile work environment

situations, not personnel decisions. See, e.g., McPherson, 457 F.3d at 216; Snell,

782 F.2d at 1103-04.

The two other cases cited by Plaintiff, Malik v. Carrier Corp., 202 F.3d 97

(2d Cir. 2000) and Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177 (9th Cir.

2005), both discuss an employer’s duty to investigate complaints of harassment in

the hostile work environment context, not a duty for an employer to investigate the

motivations of employees who provide it with information that the employer uses

to make a personnel decision. (Pl. App. Br. 22)

Based on the foregoing, the Second Circuit should reject the extension of

liability proposed by Plaintiff, and apply the well-settled principle that an employer

cannot be held liable for a personnel decision when made in good faith, i.e.,

without any discriminatory or retaliatory intent, and affirm the District’s Court’s

decision to that effect.


35

CONCLUSION

The District Court’s decision dismissing the complaint against Empress

should be affirmed.

Dated: Garden City, New York

February 5, 2016

Respectfully submitted,

Stagg, Terenzi, Confusione & Wabnik, LLP

By: /s/ Debra L. Wabnik

Debra L. Wabnik (dw-2468)

Attorneys for Defendant-Appellee

Empress Ambulance Service, Inc.

401 Franklin Avenue, Suite 300


(516) 812-4500


36

CERTIFICATE OF COMPLIANCE WITH FRAP 32(A)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 8,189 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word in Times New Roman, 14 point font.

Dated: Garden City, New York

February 5, 2016

Respectfully submitted,

Stagg, Terenzi, Confusione & Wabnik, LLP

By: /s/ Debra L. Wabnik

Debra L. Wabnik (dw-2468)

Attorneys for Defendant-Appellee

Empress Ambulance Service, Inc.

401 Franklin Avenue, Suite 300


(516) 812-4500


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