14

‐ 1671

Xu v. City of New York

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 A SUMMARY ORDER @ ). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 29 th day of April, two thousand fifteen.

PRESENT: DENNIS JACOBS,

RAYMOND J. LOHIER, JR.,

Circuit Judges,

PAMELA K. CHEN,

District Judge. 

___________________ __________________ Yan Ping Xu,

Plaintiff

‐ Appellant,

v. 14

‐ 1671

The City of New York, The New York City

Department of Health and Mental Hygiene,

Dr. Jane R. Zucker, Dennis J. King, Brenda

M. McIntyre,

Defendants

‐ Appellees.

___________________ __________________

 The Honorable Pamela K. Chen, of the United States District Court for the

Eastern District of New York, sitting by designation.2 FOR PLAINTIFF

‐ APPELLANT: Yan Ping Xu, pro se, Bay Shore,

N.Y.

FOR DEFENDANTS

‐ APPELLEES

CITY OF NEW YORK, DEPARTMENT

OF HEALTH AND MENTAL HYGIENE,

& MCINTYRE: Kristin M. Helmers, Janet L.

Zaleon, for Zachary W. Carter,

Corporation Counsel of the City

of New York, New York, N.Y.

FOR DEFENDANTS

‐ APPELLEES

ZUCKER & KING: Benjamin H. Torrance, Caleb

Hayes

‐ Deats, Jessica Jean Hu,

Jeannette Anne Vargas, for Preet

Bharara, United States Attorney

for the Southern District of New

York, New York, N.Y.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Torres, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED in part, and

in part VACATED and REMANDED for further proceedings consistent with this

order.

Yan Ping Xu, pro se, appeals the district court’s grant of judgment on the

pleadings to the City of New York, the New York City Department of Health and

Mental Hygiene, and Brenda M. McIntyre (collectively, the “Municipal

Defendants”), and Jane R. Zucker and Dennis J. King (collectively, the “Federal

Defendants”). See Fed. R. Civ. P. 12(c). The court dismissed Xu’s employment

discrimination, retaliation, and constitutional claims on the basis of sovereign

immunity, res judicata, collateral estoppel, and failure to state a claim. We assume3 the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal, to which we refer only as necessary to explain our decision to affirm in part

and, in part, vacate and remand.

Xu alleges that she was employed as a City Research Scientist, working for the

Vaccines for Children Program within the Division of Disease Control, which is part

of the New York City Department of Health and Mental Hygiene. The Vaccines for

Children Program is a federally funded program. Xu was supervised both by the

Municipal Defendants and the Federal Defendants, who were employed by the

Centers for Disease Control and Prevention and “detailed” to assist the Municipal

Defendants in implementing the Vaccines for Children Program. See 42 U.S.C.

§ 215(b).

We review de novo a district court’s dismissal of a complaint pursuant to Rule

12(c), and “employ the same standard applicable to dismissals pursuant to Fed. R.

Civ. P. 12(b)(6).” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (internal

quotation marks and alteration omitted). We construe Xu’s complaint liberally,

accept its factual allegations as true, and draw all reasonable inferences in her favor.

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a

motion to dismiss, the complaint must plead “enough facts to state a claim to relief

that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

“allow[ ] the court to draw the reasonable inference that the defendant[s are] liable

for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

assumption that allegations contained in the complaint are true is “inapplicable to

legal conclusions.” Id.

1. Discrimination and Retaliation Claims Against the Federal Defendants

As the district court ruled, Xu cannot assert a claim against the Federal

Defendants in their official capacities pursuant to Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq. The Supreme Court has instructed: “A

waiver of the Federal Government’s sovereign immunity must be unequivocally

expressed in statutory text, and will not be implied. Moreover, a waiver of the

Government’s sovereign immunity will be strictly construed, in terms of its scope, in

favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations4 omitted). This principle and the text of Title VII lead to the conclusion that the

waiver of sovereign immunity is limited to suits brought by an employee of the

federal government (or an applicant for such employment). See Brown v. Gen.

Servs. Admin., 425 U.S. 820, 829

‐ 30 (1976); see also Cnty. of Suffolk v. Sebelius, 605

F.3d 135, 140 (2d Cir. 2010) (waiver of sovereign immunity must be “unequivocally

expressed” (internal quotation marks omitted)). Xu, who alleges that she was a

City employee, therefore cannot maintain a suit against the Federal Defendants in

their official capacities under Title VII.

Xu also cannot assert claims against the Federal Defendants pursuant to 42

U.S.C. §§ 1981, 1983 or 1985 because, as alleged in Xu’s complaint, the Federal

Defendants were not acting under color of state law. See Arar v. Ashcroft, 585 F.3d

559, 568 (2d Cir. 2009) (in banc) (“[S]ince federal officials typically act under color of

federal law, they are rarely deemed to have acted under color of state law.” (internal

quotation marks omitted)).

The Supreme Court has, however, recognized that “the Fifth Amendment

confers

. . . a constitutional right to be free from illegal discrimination” and that Title

VII “leaves undisturbed whatever remedies [plaintiff] might otherwise possess.”

Davis v. Passman, 442 U.S. 228, 236, 247 (1979). Accordingly, suit against the

Federal Defendants in their individual capacities would be a potential avenue for

relief. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 390 (1971).

However, we conclude that the allegations in Xu’s amended complaint are

insufficient to state a claim against the Federal Defendants in their individual

capacities, and we therefore affirm dismissal. See Iqbal, 556 U.S. at 683 (requiring

factual allegations “sufficient to plausibly suggest” the Federal Defendants acted

with a “discriminatory state of mind”).

2. The Section 75

‐ b Claim

The court properly dismissed Xu’s claim that the Federal Defendants fired her

in violation of N.Y. Civ. Serv. Law § 75

‐ b for speaking out about the alleged

inaccuracy of survey data. To the extent the claim is brought against the Federal

Defendants in their official capacities, it is barred by sovereign immunity. See

FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity5 shields the Federal Government and its agencies from suit.”). Moreover, § 75

‐ b

“does not apply separately to individual public employees where the pertinent

governmental entity is also sued.” Frank v. State, 86 A.D.3d 183, 188 (N.Y. App.

Div. 2011). And the dismissal of this claim was specifically affirmed by the New

York Appellate Division. See Xu v. N.Y.C. Dep’t of Health & Mental Hygiene, 121

A.D.3d 559, 561 (N.Y. App. Div. 2014). So, as the district court ruled, collateral

estoppel bars the § 75

‐ b claim as to all defendants.

3. First Amendment Retaliation

“[T]he First Amendment protects a public employee from retaliation by his or

her employer for the employee’s speech only if the employee speaks (1) as a citizen

(2) on a matter of public concern.” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013)

(internal quotation marks omitted). “[W]hen public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Xu

alleged that she suffered retaliation for reporting inaccuracies in survey data.

Because Xu made the report pursuant to her official duties, she was not speaking as

a citizen for First Amendment purposes. See id. Dismissal of her First

Amendment retaliation claims is affirmed.

4. Collective Bargaining Law Claim

Although the Appellate Division did not specifically address Xu’s Collective

Bargaining Law claim, language in the Appellate Division’s opinion makes clear

that, except with respect to the bases specified, the judgment was “otherwise

affirmed.” See Xu, 121 A.D.3d at 560. Accordingly, we affirm the district court’s

holding that this claim is barred by collateral estoppel.

5. Remaining Claims

The district court ruled that Xu’s remaining claims were barred by preclusion6 doctrines. 1 “Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts

must give state

‐ court judgments the same preclusive effect as they would receive in

courts of the same state.” Burkybile v. Bd. of Educ. of Hastings

‐ On

‐ Hudson Union

Free School Dist., 411 F.3d 306, 310 (2d Cir. 2005). Under New York law, “a final

judgment on the merits of an action precludes the parties from relitigating issues

that were or could have been raised in that action.” Duane Reade, Inc. v. St. Paul

Fire & Marine Ins. Co., 600 F.3d 190, 195 (2d Cir. 2010) (internal quotation marks and

alteration omitted). Res judicata bars successive litigation only where the cause of

action that is the basis for the subsequent claim has already been subject to “a

judgment on the merits rendered by a court of competent jurisdiction.” People ex

rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122 (2008). “[T]he pendency

of an appeal from [a] judgment does not alter the finality or enforceability of that

judgment,” Aaron v. Aaron, 2 A.D.3d 942, 944 (N.Y. App. Div. 2003), “unless and

until it is overturned,” Da Silva v. Musso, 76 N.Y.2d 436, 440 (1990). But, “[a]

judgment vacated or set aside has no preclusive effect.” Sheldon v. Khanal, 396 F.

App’x 737, 739 (2d Cir. 2010) (summary order) (quoting Stone v. Williams, 970 F.2d

1043, 1054 (2d Cir. 1992)).

The Appellate Division affirmed the dismissal of the Plenary Action, but, in

doing so, it altered the basis of the judgment. It ruled that at the time of the

decision, the Plenary Action was correctly deemed to be collaterally estopped by the

judgment in Xu’s original Article 78 proceeding, but that the intervening reversal of

that judgment removed its preclusive effect. Xu v. City of New York, 82 A.D.3d

559, 559 (N.Y. App. Div. 2011). Nevertheless, the Appellate Division ruled that

“dismissal of the [Plenary Action was] warranted pursuant to CPLR 3211(a)(4),

because of the pending [reinstated Article 78] proceeding

. . . .” Id. Discretionary

dismissal of duplicative litigation is authorized by N.Y. C.P.L.R. 3211(a)(4) when

1 The district court declined to give claim preclusive effect to the Article 78

proceeding because it was unclear that the full measure of relief sought in Xu’s

federal action had been available in that proceeding. See Vargas v. City of New

York, 377 F.3d 200, 205 (2d Cir. 2004) (“New York’s claim preclusion rule does not

apply because a state court entertaining an Article 78 proceeding does not have the

power to award the full measure of relief available in subsequent section 1983

litigation.”). But the Plenary Action was not limited in the relief available.7 another lawsuit is pending between the same parties concerning the same cause of

action. However, such a dismissal is not a judgment on the merits, see David D.

Siegel, N.Y. Prac. § 325 (5th ed.), Note 3 & n.14, and therefore lacks claim preclusive

effect, see Applied Card Sys., 11 N.Y.3d at 122.

When the district court invoked the issue preclusion doctrine, the Appellate

Division had yet to reverse the dismissal of Xu’s reinstated Article 78 proceeding,

and the district court could not have anticipated this development. Nevertheless,

we are compelled to vacate the district court’s decision insofar as its preclusion

determination rested on the reversed state court judgment. Stone, 970 F.2d at 1054.

Moreover, the district court failed to revisit the question whether the Plenary Action

could be given claim preclusive effect in light of the Appellate Division’s

intervening affirmance of its dismissal on a non

‐ merits ground. Following the

Appellate Division’s affirmance, there was no longer a judgment on the merits in the

Plenary Action. The district court therefore erred in dismissing Xu’s claims on res

judicata grounds.

* * *

We have considered all of Xu’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM in part, and in part VACATE and

REMAND for further proceedings consistent with this order.

FOR THE COURT:

Catherine O = Hagan Wolfe, Clerk