Fiorillo v. Slater Petition for Rehearing and Suggestion for Rehearing En Banc

    97-6337
IN TH E

UNITED STATES CO URT OF APPEALS  
FO R  TH E SECOND CIRCUIT

ANNE M. FIORILLO,

Plaintiff-Appellant,

V.

RO D NEY SLATER, Secretary.
United States Department of Transportation,

Defendant-Appellee.

On Appeal from the 
United States District Court 

for the Southern District of New York

PETITION FOR REHEARING AND SUGGESTION 
FOR REHEARING EN BANC

E l a i n e  R . J o n e s

D l RECTO R-CO U N SEL

T h e o d o r e  M . S h a w  
N o r m a n  J .  C h a c h k i n  
C h a r l e s  S t e p h e n  R a l s t o n  
NAACP L E G A L  D EFEN SE AND 

E d u c a t i o n a l  F u n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

G e o f f r e y  M o r t  
G o o d m a n  &  Z u c h l e w s k i  

500 Fifth Avenue 
Suite 500
New York, NY 10110 
(212) 869-1940

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS
STATEMENT OF THE C A S E ..........................................  ±

ARGUMENT ....................................................... 2

I. THE DECISION OF THE COURT IS IN ERROR AND
CONFLICTS WITH DECISIONS OF UNITED STATES SUPREME 
COURT AND WITH PRIOR DECISIONS OF THIS COURT . . .  2

II. THIS CASE IS AN APPROPRIATE ONE FOR CONSIDERATION
EN B A N C ............................................  8

C O N C L U S I O N .................................................... ...

CERTIFICATE OF SERVICE

1



TABLE OF AUTHORITIES
Cases: Pages:
Annis v. County of Westchester, 136 F.3d 249 (2d Cir. 1998) 5, 8
Barrett v. Civil Service Commission, 69 F.R.D 544

(D.D.C. 1975) ............................................ 10

Burlington Industries, Inc. v. Ellerth, 524 U.S. , 141 L Ed 2d 
633 (1998)...................................— “ ....... ' ’ 3

Faragher v. City of Boca Raton, 524 U.S.
141 L .Ed . 2d 662 1998) ..................................... ..

Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975) . . . .  io

Harris v. Forklift Systems, Inc., 510 U.S. , 126 L .Ed 2d 295
(1993).................................— .........  3

Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1 9 9 7 ) ............. 6

Leatherman v. Tarrant County, 507 U.S. 163 (1993)............. 7

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ...........3

Oncale v. Sundowner Offshore Services, Inc., 523 U S 140
L . Ed. 2d 201 (1998).............................. “— 7' _ _ 3

Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1 9 7 7 ) ...........10

Robinson v. Shell Oil, 519 U.S. ___, 136 L.Ed.2d 808 (1997) . . 6
Simmons v. Abruzzo, 49 F.3d 83 (2d Cir. 1 9 9 5 ) .............  7, 8

Smith v. Secretary of the Navy, 659 F.2d 1113 (D.C. Cir. 1981) 6

Torres v. Pisano, 116' F.3d 625 (2d Cir. 1 9 9 7 ) ........... 4 , 5 , 8

Walker v. City of New York, 974 F.2d 293 (2nd Cir. 1992) . . .  7

Young v. Sullivan, 733 F. Supp. 131 (D.D.C. 1990), aff'd 946
F.2d 1568 (D.C. Cir. 1991) .................................. ..

Statutes and Regulations: Paqes.

42 U.S.C. § 1981 A ..................................... 3, 4, 6, 10
Civil Rights Act of 1 9 9 1 .......................... 1 , 3 , 4 , 6  8

Equal Employment Opportunity Act of 1972 .................... 1

i i



Title VII of the Civil Rights Act of 1964 . .
Pages:

■ . 1-4, 6, 8, 10-

Other Authorities:

1991 U.S. Code Congressional and Administrative News 602 . 4, 10

EEOC: Policy Guide on Compensatory and Punitive Damages Under
1991 Civil Rights Act, July 7, 1992, 405 BNA Fair Employment 
Practices Manual 7091 .....................................  4

Ralston, "Peculiarities of the EEO Process for Federal
Employees," Chapter 12, Spriggs, Representing Plaintiffs in 
Title VII Actions,
(2d Ed., Aspen Law and Business, 1 9 9 8 ) .................  10

Ralston, "The Federal Government As Employer: Problems and
Issues In Enforcing the Anti-Discrimination Laws,"
10 Ga. L. Rev. 717 (1976) .................

Report of the House Committee on Education and Labor, H.Rep. No. 
102-40(1) (102nd Cong., 1st Sess.) .................... 4 i

i i i



No. 97-6337

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

ANNE M. FIORILLO,

Plaintiff-Appellant, 
v.

RODNEY SLATER, Secretary,
United States Department of Transportation,

Defendant-Appellee.

On Appeal from the United States District Court 
for the Southern District of New York

PETITION FOR REHEARING AND SUGGESTION 
FOR REHEARING EN BANC

Plaintiff-appellant Anne Fiorillo respectfully petitions for 
rehearing and suggests a rehearing en banc of the decision of the 

Court entered on November 13, 1998, a copy of which is appended 
hereto.

STATEMENT OF THE CASE

This is an action brought by an employee of an agency of the 

federal government under Title VII of the Civil Rights Act of 1964, 

as amended by the Equal Employment Opportunity Act of 1972 and the 

Civil Rights Act of 1991, 42 U.S.C. § 2000e-16, the Administrative 

Procedure Act, and the Mandamus Act. Anne Fiorillo, the plaintiff- 

appellant, alleged that she had been discriminated against because 

of her sex and age, and in reprisal for having raised claims of 

discrimination. She further claimed that the defendant, the 

Secretary of Transportation, had failed in his duty to enforce the



laws against employment discrimination to her injury. J.A. at A-8 
to A-22.

The claims of plaintiff-appellant involved in this appeal are 

that she was retaliated against and discriminated against because 

of her sex when she attempted to file and have processed a 

complaint of discrimination in that the agency did not process her 

complaint properly, in contrast with its immediate and favorable 

treatment of her male supervisor's complaint against her. She 

further alleged that she had suffered emotional distress, anxiety, 

and stress as a result of these actions, and sought appropriate 
compensatory damages.

The district court granted defendant-appellee's motion to 
dismiss her claim relating to the processing of plaintiff- 

appellant's EEO administrative complaint on the ground that it 

failed to state a cause of action under Title VII. J.A. A-78 to A- 

95. After further proceedings in the district court, this appeal 
was filed.

ARGUMENT 

I .
THE DECISION OF THE COURT IS IN ERROR AND CONFLICTS WITH 

DECISIONS OF UNITED STATES SUPREME COURT 
AND WITH PRIOR DECISIONS OF THIS COURT

The decision of the panel of November 13, 1998, is based on

the conclusion that plaintiff-appellant "failed to allege an 

adverse employment action" in her claim that the defendant federal 

agency had discriminated against her (because of her sex and in 

retaliation for her filing an EEO complaint) when it refused and 

failed to process her complaint in a timely manner, while 

processing and resolving favorably the EEO complaint of her male

2



supervisor that arose out of the same circumstances. Specifically, 

the panel held that plaintiff-appellant's allegations that she 

"suffered stress, anxiety and a significant deterioration of her 

medical condition" because of the agency's discriminatory and 

retaliatory refusal to process her complaint were not, as a matter 

of law, sufficient to plead a cause of action under Title VII. 
This conclusion was in error in a number of respects.

1. The Supreme Court of the United States has squarely held, 

in two decisions issued in June, 1998, that an employee need not 

suffer an adverse, tangible employment action for there to be a 

violation of Title VII. Burlington Industries. Inc, v. Ellerth.

524 U.S. ___, 141 L.Ed.2d 633, 654-55 (1998) and Faraaher v. City

of Boca Raton, 524 U.S. ___, 141 L.Ed.2d 662, 675 1998). See also,

Meritor Savings Bank v, Vinson. 477 U.S. 57, 64 (1986) (rejecting 

argument that a claim of hostile environment sexual harassment 

should fail because "in prohibiting discrimination with respect to 

'compensation, terms, conditions, or privileges' of employment, 

Congress was concerned with what [the employer] describes as 

'tangible loss' of 'an economic character,' not 'purely 

psychological aspects of the workplace environment'"); Harris v.

Forklift_Systems, Inc. . 510 U.S. ___, 126 L.Ed.2d 295 (1993);

Oncale v. Sundowner Offshore Services. Inc.. 523 U.S. , 140
L .Ed.2d 201, 206 (1998).

Rather, consistent with the provision of compensatory damages 

by the Civil Rights Act of 1991, 42 U.S.C. § 1981A, a cause of

action exists for psychological or emotional injury caused by 

intentional discrimination. In the present case, plaintiff-

3



appellant precisely pled that the agency had intentionally 

discriminated and retaliated against her by effectively ignoring 

and refusing to address her charges of biased treatment. Further, 

she alleged that she had suffered "stress, anxiety, and a 

significant deterioration of her medical condition" as a result. 

This language clearly states a claim for compensatory damages under 

42 U.S.C. § 1981A, which provides for damages for "emotional pain, 

suffering, inconvenience, mental anguish, loss of enjoyment of 

life, and other nonpecuniary losses." As the Equal Employment 

Opportunity Commission has explained, "emotional harm [compensable 

under 1981A] may manifest itself, for example, as sleeplessness, 
anxiety, stress, [etc.] . . . ." EEOC: Policy Guide on 

Compensatory and Punitive Damages Under 1991 Civil Rights Act, July 

7, 1992, 405 BNA Fair Employment Practices Manual 7091, 7096 
(emphasis added).1

In its decision, this Court relied on the earlier decision of 

Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), as supporting its 

result in this case. However, Torres is inapposite and, indeed, 

militates against dismissing this case without affording Ms. 

Fiorillo the opportunity to present evidence in support of her

"The legislative history of the Civil Rights Act of 1991 makes 
it clear that the purpose of section 1981A was to ensure that 
monetary damages were available for psychological and other types 
of injuries that could not be compensated for by back pay or other 
equitable relief. The availability of damages is intended to 
accomplish  ̂ three goals: making victims of intentional 
discrimination whole, deterring further acts of discrimination, and 
encouraging private enforcement of Title VII. See. Report of the 
House Committee on Education and Labor. H.Rep. No. 102-40(1) (102nd 
Cong., 1st Sess.), p p . 64-68; 69-70, Reprinted in 1991 U.S. Code 
Congressional and Administrative News, p p . 602-08. The denial of 
any remedy to plaintiff-appellant here is contrary to all three 
Congressional purposes.

4



claim of emotional damage. Torres affirmed a grant of summary 

judgment because the only evidence presented in support of the 

claim of injury there was the plaintiff's own testimony that she 

had been "frightened" or "intimidated" by being questioned about 

her EEO complaint. Here, plaintiff-appellant has not had the 

opportunity to present any evidence in support of her claims of 

suffering compensable injuries, which clearly go beyond having 
simply been "frightened" or "intimidated."

The result in this case -- the dismissal of plaintiff- 

appellant's claims without the opportunity of putting on her proof 

of injury -- is also inconsistent with this Court's decision in

Ann is_v. County of Westchester. 136 F.3d 239 (2d Cir. 1998).

There, the Court did not dismiss the case because the injury 

claimed was emotional distress. Rather, it held that the evidence 

adduced in support of the claim in that case, up to the point at 

which the appeal was taken, was "insufficient to warrant an award 

of compensatory damages." The Court noted that, unlike the present 

case, the plaintiff had not "alleged any physical manifestations of 

her emotional distress" and did not corroborate her testimony that 

she had received treatment. Nevertheless, and despite the fact 

that "her testimony fails to establish that she suffers from any 

concrete emotional problems," the Court held that she "should be 

permitted to present other evidence of her emotional problems on 

remand." 136 F.3d at 249. In short, Ms. Annis was given two bites 

of the apple, while Ms. Fiorillo has yet to have one.

In the last analysis, the error of the panel was in not 

distinguishing between the question whether a violation had been

5



pled with the separate question whether plaintiff-appellant would 

be able ultimately to establish the remedy she was entitled to. In 

this respect, the panel's ruling is in conflict with decisions of 

other Circuits. Thus, in Hashimoto v. Dalton. 118 F.3d 671 (9th 

Cir. 1997) , the court held that the issuance of a negative 

reference by a former employer in retaliation for engaging in- 

protected activity violated Title VII, even if the negative 

reference was not the cause of the refusal of a second employer to 

hire the plaintiff. The Ninth Circuit rejected what it aptly 

termed the "no harm, no foul" argument as confusing liability with 

relief.2 118 F.3d at 676. In so doing, it relied on an earlier

decision of the District of Columbia Circuit in Smith v. Secretary 

of. .the Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981), in which that
court held:

An illegal act of discrimination -- whether based on race 
or some other factor such as a motive of reprisal -- is 
a wrong in itself under Title VII, regardless of whether 
that wrong would warrant an award of [remedies].

See also, Robinson v. Shell Oil. 519 U.S. ___, 136 L.Ed.2d 808
*

(1997) (furnishing a retaliatorily bad reference is a violation of 
Title VII).

In the present case, plaintiff-appellant stands ready to prove 

not merely that she suffered a wrong when the Department of 

Transportation discriminatorily denied her an important term and

2 The difficulty with remedies in Hashimoto was that the 
alleged violation occurred before the effective date of the Civil 
Rights Act of 1991, which, for the first time, provided for 
compensatory damages for acts of intentional discrimination by 
federal government agencies. The clear implication of Hashimoto is 
that compensatory damages would have been available if, as is the 
case here, the retaliation had occurred after the passaqe of 42 
U.S.C. § 1981A.

6



condition of her employment by an agency of the federal government 

-- fair, timely, and equal access to the EEO process -- but also 

that she suffered compensable injuries because of that intentional 
discrimination.

2. To the extent that the decision of the Court is based on 

a heightened pleading requirement it is also in conflict with 

decisions of the Supreme Court and of this Court. Thus, in 

Leatherman v. Tarrant County. 507 U.S. 163 (1993), the Court held 

that it was a violation of Rule 8, Fed. R. Civ. P., to impose more 

than notice pleading requirements in civil rights actions. The 
decision makes clear that it is proper to dismiss an action only 

if, taking the allegations most favorable to the plaintiff, it 

"'appears beyond doubt that the plaintiff can prove no set of facts 

in support of [her] claim which would entitle [her] to relief.'" 

Walker v. City of New York. 974 F.2d 293, 298 (2nd Cir. 1992). 

Consistent with this rule, this Court has held that it is 

ordinarily an abuse of discretion to dismiss a complaint under Rule 
8 without giving the plaintiff an opportunity to amend. Simmons v. 
Abruzzo. 49 F.3d 83, 86-87 (2d Cir. 1995).

In the present case, however, the plaintiff-appellant has been 
denied any opportunity to correct the asserted deficiency in her 

allegations as set out in the Court's opinion, since the basis of 

the decision of the district court was not that her allegations of 

injury were insufficient, but that there was no cause of action 

against a federal agency even for intentional discrimination and 

retaliation in its processing of an EEO complaint regardless of any 

injury. For the reasons set out above, plaintiff-appellant urges

7



that her allegations are sufficient to set out a claim for an 

injury compensable through damages under the Civil Rights Act of 

1991. If they are not, the appropriate remedy, consistent with 

Simmons v, Abruzzo and, indeed, with Annis v. County of Westchester 

and Torres v. Pisano, would be to remand with directions to permit 

the. filing of an amended complaint that more fully alleges the 
nature and extent of her injuries and damages.

II.
THIS CASE IS AN APPROPRIATE ONE FOR CONSIDERATION EN BANC 

As set out above, the panel decision is in conflict with prior 

decisions of this Court regarding issues of the sufficiency of 

pleadings in civil rights cases, the appropriate action under Rule 

8 for insufficient allegations of damages, and the nature of 

intentional discriminatory acts that will give rise to a claim 

under Title VII of the Civil Rights Act of 1964, as amended. These 

questions are all of great importance in the enforcement of the 

rights established by Title VII, since their resolution will impact 

on the availability of a judicial remedy for employment 

discrimination. If this Court is to interpret Title VII narrowly, 

or to impose heightened pleading requirements that will result in 

the dismissal of claims of intentional discrimination without 

plaintiffs having the opportunity to present evidence in support of 

their claims, it is respectfully suggested that it should do so 

only after consideration by the full Court of the important issues 
involved.

Counsel for plaintiff-appellant recognizes that the panel 

decision is a summary order, which may not be cited as precedential

8



authority in a court action. Nevertheless, the decision is bound

to have a broad impact. The plaintiff-appellant seeks the 

enforcement of important statutory rights afforded federal 

employees. The decision of the lower court, holding that the 

discriminatory denial of those rights does not create a cause of 

action cognizable in court, stands affirmed by this Court. See, 

Young v. Sullivan. 733 F. Supp. 131 (D.D.C. 1990), aff'd . 946 F.2d 

1568 (D.C. Cir. 1991), cited by the government and relied on by the 

district court in this case (J.A. at A-92), for an example of a 

district court decision on the same issue that was affirmed without 

opinion by the Court of appeals and that has attained significant 
precedential status.

In addition, the basis of the panel's decision, that such a 

denial does not give rise to the level of an "adverse employment 

action" compensable in damages will also be known by the personnel 

in federal agencies charged with the responsibility of enforcing 

EEO procedures. They will, therefore, assume that even intentional 
refusals to process EEO complaints will be immune from judicial 

review or, indeed, from any effective remedy at all. Thus, the 

outcome of this case can affect the statutory and regulatory rights 

of millions of federal employees to "the prompt, fair and impartial 

processing" of claims of discrimination by the agencies that employ 
them.3

The plaintiff-appellant in this case is exceptional in that 

she was able to retain counsel and to obtain the assistance of a 

national civil rights agency with a long-standing interest in and

329 C.F.R. § 1614.102(a)(2).

9



concern with the administrative enforcement of EEO rights in the 

federal sector.4 If she is unable to obtain vindication of her 

rights in'this case, it is doubtful whether other federal employees 

who suffer similar discrimination or retaliation will have any 

opportunity for redress, and Congress' purpose in granting the 

right to an effective administrative process will be thwarted. On 

the other hand, the recognition of a cause of action for the 

discrimination Ms. Fiorillo has suffered will further the goals 

that motivated Congress to provide for compensatory damages in 
section 1981A, viz., to

enhance the effectiveness of Title VII by making victims 
of intentional discrimination whole for their losses, by 
deterring future acts of discrimination and by 
encouraging private enforcement.5

4See, e .g ., Hacklev v. Roudebush. 520 F.2d 108, 111, 136-41 
(D.C. Cir. 1975); Barrett v. Civil Service Commission. 69 F.R.D. 
544 (D.D.C. 1975); Ralston, "The Federal Government As Employer:
Problems and Issues In Enforcing the Anti-Discrimination Laws," 10 
Ga. L. Rev. 717 (1976); Ralston, "Peculiarities of the EEO Process 
for Federal Employees," Chapter 12, Spriggs, Representing
Plaintiffs— in—Title_VII_Actions. (2d Ed., Aspen Law and Business
1998) .

5 Report of the House Committee on Education and Labor, H .Rep. 
No. 102-40(1) (102nd Cong., 1st Sess. ) , p. 70, 1991 U.S. Code
Congressional and Administrative News, p. 608. The third goal, the 
encouragement of private enforcement of Title VII, is particularly 
important in the federal sector, since there is no public attorney 
general to bring actions against federal agencies for 
discrimination. See Parker v. Califano. 561 F.2d 320 331 (D C
Cir. 1977).

10



CONCLUSION
For the foregoing reasons, the petition for rehearing should 

be granted, or rehearing en banc be held, and the decision of the 

court below should be reversed and the case remanded for a trial on 
the merits of plaintiff-appellant's claims.

ELAINE R . JONES 
Director-Counsel

THEODORE M . SHAW 
NORMAN J. CHACHKIN 
CHARLES STEPHEN RALSTON 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 965-2200

GEOFFREY A. MORT 
GOODMAN & ZUCHLEWSKI 
500 Fifth Avenue 
Suite 500
New York, NY 10110 
(212) 869-1940

Attorneys for Plaintiff- 
Appellant

11



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL 
REPORTER AND MAY N O T BE CITED AS PRECEDENTIAL AUTHORITY TO  
THIS OR AN Y OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF 
THIS OR A N Y OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A 
RELATED CASE, OR IN AN Y CASE FOR PURPOSES OF COLLATERAL ESTOPPEL 
OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 
the United States Courthouse, Foley Square, in the City of New York, on the 13 th  
day of Nov . one thousand nine hundred and ninety-eight.

PRESENT:
Pierre N. Leval,
Jose A. Cabranes, 
Rosemary S. Pooler, 

Circuit Judges.

......................................................x

A n n e  M . F i o r i l l o ,

Plaintiff-Appellant,

v. No. 97-6337

R o d n e y  Sl a t e r , Se c r e t a r y , U n i t e d  

St a t e s  D e p a r t m e n t  o f  T r a n s p o r t a t i o n ,
Defendant-Appellee,

......................................................x

A p p e a r i n g  f o r  A p p e l l a n t : C h a r l e s  St e p h e n  R a l s t o n , NAACP Legal
Defense & Educational Fund, Inc., New York, 
N Y (Elaine R. Jones, Theodore M. Shaw, and 
Norman J. Chachkin, NAACP Legal Defense & 
Educational Fund, Inc., Geoffrey Mort, Goodman 
& Zuchlewski, New York, N Y, o f counsel).

-1-



A p p e a r i n g  f o r  A p p e l l e e : J e n n i f e r  K. B r o w n , Assistant United States
Attorney for the Southern District of New York 
(Mary Jo White, United States Attorney, Steven 
M. Haber, Assistant United States Attorney, of 
counsel).

Appeal from the United States District Court for the Southern District of New York 
(John G. Koeltl,/«dge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Anne M. Fiorillo appeals from a November 5, 1997 judgment of district court, 

dismissing certain of her claims, pursuant to Fed. R. Civ. P. 12(c).1

At issue on this appeal are Fiorillo’s allegations that her employer, the United States 

Coast Guard, an entity situated within the Department of Transportation (the “Agency”), 

acted in an unreasonable, dilatory, and discriminatory fashion in handling an Equal 

Employment Opportunity (“EEO ”) complaint she had filed with the Agency. Fiorillo’s 

second amended complaint pleaded these claims under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), and under the Administrative Procedure Art, 5 

U.S.C. §§ 701-06 (“APA”).

After filing its answer, the Agency moved to dismiss pursuant to Fed. R. Civ. P. 12(c). 

In a ruling read from the bench, the district court dismissed the aforementioned claims dealing 

with the processing of Fiorillo’s EEO  complaint. However, the district denied the motion to

T ed . R. Civ. P. 12(c) provides that “[ajfter the pleadings are closed but within such time as not to delay 
the trial, any party may move for judgment on the pleadings.” The parties and the district court refer to the 
12(c) motion as one to “dismiss” rather than for “judgment on the pleadings.” Mindful that this usage is not 
unprecedented in our cases, see, e.g., Sheppard v. Beerman, 18 F.3d 147, 149, 150 (2d Cir. 1994), and that the 
distinction, if any, is of only semantic importance, we have adhered to this usage for purposes of this summary 
order.

-2-

i



the extent that it sought the dismissal of her underlying claims against the Agency for age and 

sex discrimination.2 Nevertheless, Fiorillo stipulated, pursuant to Fed. R. Civ. P. 41(a)(1), to 

the voluntary dismissal of the claims that had survived the government’s motion. The district 

court entered judgment, and Fiorillo’s timely appeal followed.

We review de novo the district court’s dismissal pursuant to Rule 12(c), and “we apply 

the same standard as that applicable to a motion under Rule 12(b)(6).” Sheppard v. Beerman,

18 F.3d 147, 150 (2d Cir. 1994). Under that test, “a court must accept the allegations 

contained in the complaint as true, and draw all reasonable inferences in favor of the 

non-movant; it should not dismiss the complaint ‘unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”

Id. (citations and internal quotation marks omitted).

We affirm the dismissal of Fiorillo’s claim pleaded under the APA, for the reasons 

stated by the district court in its July 18, 1997 bench ruling. See Joint Appendix at 93-94.

The Agency argues that we may affirm the dismissal of Fiorillo’s Title VII claim on 

either of two grounds: (1) that plaintiff has failed to allege an adverse employment action, and 

(2) that Title VII does not allow an employee to maintain an action against its governmental 

employer for that employer’s mishandling—discriminatory or otherwise—of an EEO  

complaint.

2The district court did dismiss a portion of another claim that Fiorillo had pleaded—namely, so much of 
her retaliation claim as challenged another employee’s Title VII claim that had accused Fiorillo of discriminating 
against him on the basis of sex. On this appeal, Fiorillo does not challenge that aspect of the district court’s 
decision.

-3-



Upon a careful review of Fiorillo’s allegations, we conclude that she has failed to 

adequately plead an adverse employment action resulting from the Agency’s asserted 

mishandling of her EEO complaint. Such an adverse employment action is a requirement of a 

plaintiff’s case under Title VII. See, e.g., Preda v. Nissho Iwai American Corp., 128 F.3d 789,

791 (2d Cir. 1997) (per curiam) (element of discrimination claim); Torres v. Pisano, 116 F.3d 

625, 639-40 (2d Cir.) (element of retaliation claim), cert, denied, 118 S. Ct. 563 (1997).

Fiorillo’s second amended complaint does state that “[a]s a result of defendant’s dilatory and 

unreasonable delay in processing plaintiff’s EEO complaint, plaintiff was seriously prejudiced 

and suffered stress, anxiety and a significant deterioration of her medical condition.” As we 

have held previously, a plaintiff’s allegations that she was “frightened” or “intimidated” are 

not sufficient to show “as she must, that she suffered ‘a materially adverse change in the terms 

and conditions of employment.’” Torres, 116 F.3d at 640 (quoting McKenney v. New York City 

Off-Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995)). By stating that she was 

“seriously prejudiced,” Fiorillo might conceivably mean to suggest that she was disadvantaged 

in some way relevant to the terms or conditions of her employment. However, even so 

construed, this conclusory assertion of prejudice cannot substitute for factual allegations 

supporting an inference of an adverse employment action.

Because we hold that Fiorillo’s Title VII claim is properly dismissed for failing to plead 

an adverse employment action, we do not reach the Agency’s alternative argument for 

affirming the dismissal of that claim.

-4-



For the foregoing reasons, we AFFIRM the judgment of the district court.

For the Court,
Carolyn Clark Campbell, Clerk

By:

Ralph A. Anderson 
Acting Operations Manager

-5-



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing PETITION FOR 

REHEARING AND SUGGESTION FOR REHEARING EN BANC, have been served by 

depositing same in the United States mail, first class postage

following:

JENNIFER K. BROWN, Esq.
Assistant United States Attorney 
United States Attorney 
Southern District of New York 
100 Church Street 
New York, NY 10007

prepaid, on December, 1998, addressed to the

CHARLES STEPHEN RALSTON