18‐1753‐cv
Burke v. New York City Transit Auth. 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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 12th day of February, two thousand nineteen.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 SUSAN L. CARNEY,
7 RICHARD J. SULLIVAN,
8 Circuit Judges.
9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10 BRIAN BURKE,
11
12 Plaintiff‐Appellant,
13
14 v. No. 18‐1753‐cv
15
16 NEW YORK CITY TRANSIT AUTHORITY; KRISTEN
17 M. NOLAN, ESQ., NYCTA; LEONARD AKSELROD;
18 NYP HOLDINGS, INC., DBA NEW YORK POST;
19 KATHIANNE BONIELLO,
20
21 Defendants‐Appellees,
22
23 JOHN/JANE DOE ET AL.,
24
25 Defendants.
1 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
2 FOR PLAINTIFF‐APPELLANT: BRIAN BURKE, pro se, New York,
3 NY.
4
5 FOR DEFENDANTS‐APPELLEES Daniel Chiu, New York City
6 NEW YORK CITY TRANSIT Transit Authority, Brooklyn,
7 AUTHORITY, KRISTEN M. NOLAN, NY.
8 and LEONARD AKSELROD:
9
10 FOR DEFENDANTS‐APPELLEES GEOFFREY S. BROUNELL (Robert
11 KATHIANNE BONIELLO and NYP D. Balin, on the brief), Davis
12 HOLDINGS, INC., DBA NEW YORK Wright Tremaine LLP, New
13 POST York, NY.
14
15 Appeal from a judgment of the United States District Court for the Eastern
16 District of New York (Eric N. Vitaliano, Judge).
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
18 DECREED that the judgment of the District Court is AFFIRMED.
19 Appellant Brian Burke, pro se, sued his former employer, the New York City
20 Transit Authority (NYCTA), and several of its employees under various federal and
21 state statutes and state common law. He alleged that NYCTA officials orchestrated a
22 harassment campaign against him for being a “whistleblower” and that the New York
23 Post and one of its reporters (collectively, the “Post Defendants”) published a
24 defamatory article about his lawsuit against NYCTA. The District Court (Vitaliano, J.)
25 dismissed Burke’s complaint for failure to state a claim but allowed him to amend his
2
1 complaint with respect to his discrimination and retaliation claims. Burke filed a
2 second amended complaint, which the District Court also dismissed. We assume the
3 parties’ familiarity with the underlying facts and the record of prior proceedings, to
4 which we refer only as necessary to explain our decision to affirm.
5 We review de novo a district court’s dismissal of a complaint pursuant to Rule
6 12(b)(6), accepting all factual allegations as true, drawing all reasonable inferences in
7 the plaintiff’s favor, and interpreting the pleadings and briefs submitted by pro se
8 litigants to raise the strongest arguments that they suggest. See Harris v. Mills, 572
9 F.3d 66, 71‐72 (2d Cir. 2009). The complaint must plead “enough facts to state a claim
10 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
11 (2007).
12 I. Title VII and ADA Claims
13 A. Disparate Treatment
14 To state a claim of disparate treatment discrimination under Title VII of the Civil
15 Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e‐2 et seq., or the Americans with
16 Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., a plaintiff must allege an
17 adverse employment action that occurred under circumstances giving rise to an
18 inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
3
1 (1973); Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). To state an
2 ADA claim, the plaintiff must also show that he is disabled within the meaning of the
3 ADA. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Burke alleged
4 that he wears eyeglasses as an accommodation for his myopia and photophobia.
5 The District Court properly dismissed Burke’s disparate treatment claims arising
6 from events in April 2014 because he failed to allege any resulting adverse employment
7 action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015).
8 In particular, although Burke alleged that defendants Kristen Nolan and Leonard
9 Akselrod ordered NYCTA supervisors to harass him over a two‐day period, he failed to
10 allege that he was ever disciplined or had his job responsibilities or benefits reduced
11 because of his disability. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
12 2000). Nor did Burke adequately allege that any harassment he suffered due to his
13 religion constituted more than “mere inconveniences or annoyances,” see Vega, 801
14 F.3d at 89, or materially altered the terms and conditions of his employment, see
15 Galabya, 202 F.3d at 640.
16 B. Hostile Work Environment
17 Assuming without deciding that a hostile work environment claim is cognizable
18 under the ADA, we do not view Burke’s complaint, even when read liberally, as
4
1 adequately alleging such a claim arising from the same events in April 2014.1 See
2 Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). In any event, because an ADA hostile
3 work environment claim would also require that Burke show that the treatment he
4 received was “sufficiently severe or pervasive to alter the conditions of his
5 employment,” Dollinger v. N.Y. State Ins. Fund, 726 F. App’x 828, 831 (2d Cir. 2018)
6 (quoting Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015)), the claim would fail for the
7 same reasons as his Title VII harassment claim.
8 C. Retaliation
9 We conclude that the District Court properly dismissed Burke’s Title VII
10 retaliation claims, which require “a causal relationship between [a] protected activity
11 and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010).
12 Burke argues that there was sufficient temporal proximity between the filing of his
13 original federal complaint in March 2015 and his May 2016 termination. We agree
14 with the District Court that the year‐long lapse is too long to show causation under the
15 circumstances.2 See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990).
1
See Dollinger v. N.Y. State Ins. Fund, 726 F. App’x 828, 831 (2d Cir. 2018).
2
Burke alternatively argues that he was constructively discharged in April 2015, only weeks
after filing his lawsuit. We do not consider this argument because he first raised it on appeal.
See Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005).
5
1 Burke also alleges that the NYCTA stole over $30,000 from him as retaliation for filing
2 the instance case. But Burke provides no other facts—such as when the money was
3 earned or when it went missing—supporting this “naked assertion” of retaliation.
4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
5 II. Defamation
6 The District Court also properly dismissed Burke’s defamation claims against the
7 Post Defendants. In New York, “[a] civil action cannot be maintained against any
8 person, firm or corporation, for the publication of a fair and true report of any judicial
9 proceeding, . . . or for any heading of the report which is a fair and true headnote of the
10 statement published.” N.Y. CIVIL RIGHTS LAW § 74. “For a report to be characterized
11 as ‘fair and true’ within the meaning of the statute, thus immunizing its publisher from
12 a civil suit sounding in libel, it is enough that the substance of the article be
13 substantially accurate.” Holy Spirit Ass’n for Unification of World Christianity v. N.Y.
14 Times Co., 49 N.Y.2d 63, 67 (1979); see Shulman v. Hunderfund, 12 N.Y.3d 143, 150
15 (2009). And statements that are “pure opinion” are protected by the First Amendment
16 and are not actionable as defamation. Steinhilber v. Alphonse, 68 N.Y.2d 283, 289
17 (1986). We conclude that the Post article is not defamatory substantially for the
18 reasons set forth in the District Court’s memorandum and order of September 23, 2016.
6
1 III. Fair Labor Standards Act
2 Burke argues that the District Court ignored his claim under the Fair Labor
3 Standards Act (FLSA). But as Burke acknowledged at oral argument, Burke did not
4 make that claim until his second amended complaint, which the District Court allowed
5 only for purposes of repleading his discrimination and retaliation claims.
6 Accordingly, the District Court did not err in declining to consider this claim.
7 Moreover, even if we were to consider Burke’s FLSA claim, see Abbas, 480 F.3d at 639,
8 the claim would still fail. Burke alleged that the NYCTA owes him money pursuant to
9 an employment contract, that he was not paid for 10 hours of overtime that he worked,
10 and that he was not properly compensated for sick time and vacation days. Given that
11 Burke did not allege “a single workweek in which [he] worked at least 40 hours and
12 also worked uncompensated time in excess of 40 hours,” his claims in this regard are
13 insufficient. See Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114
14 (2d Cir. 2013); see also Nakahata v. New York‐Presbyterian Healthcare Sys., 723 F.3d
15 192, 201 (2d Cir. 2013).
7
1 We have considered Burke’s remaining arguments and conclude that they are
2 without merit. For the foregoing reasons, the judgment of the District Court is
3 AFFIRMED.
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk of Court
8