Plаintiff-appellant Wendy L. Kern appeals from a judgment entered in the United States District Court for the Western District of New York (Telesca, C.J.) denying her motions to amend her complaint and dismissing the complaint for failure to state claims upon which relief can be granted. Kern alleged in the complaint, inter alia, that defendants-appellees City of Rochester (the
For the reasons that follow, we affirm the judgment of the district court. '
BACKGROUND
In September of 1992, Kern began her employment as a secretary for Local 1071. Local 1071 is the Rochester branch of the International Association of Firefighters and is the collective bargaining agent of the firefighters employed by the City. Kern’s immediate supervisor was Cavuoto, the president of Local 1071. Cavuoto was a Lieutenant in the RFD,
In her complaint, Kern alleged that Ca-vuoto sexually harassed her on numerous occasions between September and December of 1992. The alleged harassment initially consisted of Cavuoto’s attempts to engage Kern in conversations of a sexual nature, but culminated in Cavuoto’s physical assault of Kern on December 30, 1992. On that day, according to the complaint, Cavuoto and El-dridge invited Kern to “have a holiday drink” with them in the Life Safety offices. After consuming some wine, Kern claims that she began to feel “drunk and out of control.” She excused herself and went to the bathroom located in the Local 1071 officеs. Shortly thereafter, Cavuoto entered the bathroom and pushed Kern against the •bathroom sink. Kern resisted Cavuoto’s advances and then lost consciousness. According to Kern, when she regained consciousness, she was partially disrobed and lying on the office floor with Cavuoto standing above her naked below the waist. Kern immediately dressed and left the office. The next day, Kern reported the incident to the Rochester Rape Crisis Center.
Following the assault, Kern sought the assistance of the Rochester Police Depаrtment (the “RPD”) and Local 1071. On January 19, 1992, Kern met with John McMene-my, who was the treasurer of Local 1071 and a lieutenant in the RFD, to discuss the alleged assault. McMenemy prepared a report of Kern’s allegations, which was signed by Kern and McMenemy. McMenemy then provided the report to the City’s Corporation Counsel, the executive board of Local 1071, and Ippolito, who at that time was the Chief of the RFD.
On February 24,1993, Kern and her attorney met with representatives of the RPD to file a criminal complaint against Cavuoto. Kern was introduced to Detective D’Ambro-sio and Investigator Ruvio, who told Kern that they would investigate her allegations. Although the detectives commenced an investigation, the record does not indicate that Cavuoto was charged with any crime.
On June 28, 1993, Kern commenced the action giving rise to this appeal. In her complaint, Kern alleged, inter alia, that the City Defendants were liable under § 1983 for violating her rights to equal protection, due process, and free speech. According to Kern, Cavuoto was liable under § 1983 because he sexually harassed and assaulted her during her employment as his secretary, and therefore deprived her of her right to equal protection. Kern further claimed that the City was liable under § 1983 because it had knowledge of Cavuoto’s “womanizing,” but failed to take any action to discipline him and therefore deprived Kern of her rights to equal protection and due process. Finally, Kern alleged that the RFD and Ippolito were liable under § 1983 because they retaliated against her for complaining of Cavuoto’s sexual harassment by denying MeMenemy a promotion to Captain in the RFD, and thus deprived her of her First Amendment right to free speech.
On August 13, 1993, Kern moved to amend her complaint. In the proposed amended complaint, Kern added a cause of action under Title VII against the City Defendants and Local 1071. Kern also repleaded her § 1983 claims against the City Defendants. Thereafter, the City Defendants and Local 1071 moved, under Fed.R.Civ.P. 12(b)(6), to dismiss the complaint.
By a Decision and Order dated November 23, 1993, the district court granted the motions of the City Defendants and Local 1071 to dismiss Kern’s complaint. The district court found that Kern failed to state a claim under § 1983 against the City or the RFD because she was unable to plead аny facts indicating that the deprivation of her civil rights was the result of a policy or custom. The district court also found that Kern failed to state a § 1983 claim against Cavuoto because she failed to show “that any alleged wrongful actions attributed to Mr. Cavuoto were committed under color of state law.” Finally, the district court dismissed Kern’s retaliation claims, finding that she did not have standing to assert that MeMenemy had been deprived of his civil rights on account of her complaint against Cavuoto.
The district court also denied Kern’s motion tо amend her complaint. The court found that the amendment would be futile because her Title VII claims would fail, since neither the City nor Local 1071 was an employer for purposes of Title VII. However, the district court granted Kern leave to move to file an amended complaint setting forth a valid cause of action under Title VII.
On January 19, 1994, Kern again moved to amend her complaint and also moved for reconsideration of the November 23, 1993 order. Her second proposed amended complaint differed from the original complaint in that she did not allege any violations of § 1983 and her sole federal cause of action was under Title VII. By a Decision and Order dated December 1, 1994, the district court denied Kern’s motion to amend her complaint to add a Title VII cause of action against the City Defendants, but found that a hearing was necessary to determine whether Kern could sustain a Title VII cause of action against Local 1071. The district court also denied Kern’s motion for reconsideration of the November 23, 1993 Decision and Order.
On August 14,1995, an evidentiary hearing was held to determine whether Kern could maintain a Title VII claim against Local 1071. The only issue at the hearing was whether Local 1071 had the requisite number of employees to be considered an employer for purposes of Title VII. By a Decision and Order dated October 5, 1994, the district court found that Local 1071 did not have the requisite number of employees to be considered an employer for purposes of Title VII, and thus concluded that Kern could not make out a Title VII cause of action against Local 1071. Aсcordingly, a final judgment was entered dismissing Kern’s complaint.
This appeal followed.
1. Section 1988 Claims
Kern first argues that the district court erred in dismissing her § 1983 claim against the City Defendants. We disagree.
A. Claim against Cavuoto
Kern contends that Cavuoto is liable under § 1983 because he violated her right to equal protection when he sexually harassed and assaulted her while she was employed as his secretary. In order to state a claim under § 1983,
The Supreme Court has stated that “[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins,
The district court fоund that Cavuoto was not acting under the color of state law when he harassed and assaulted Kern. The district court noted that the complaint makes it clear that, although Cavuoto was a lieutenant in the RFD, he was acting solely in his capacity as Local 1071’s president during his contacts with Kern. Kern, nevertheless, argues that Cavuoto was acting under the color of state law because the sexual harassment and assault occurred while Cavuoto was receiving full-time pay and benefits from the City. Kern also claims that the fact that the harassment and assault occurred at Local 1071’s offices, where Cavuoto regularly conducted business with city employees, demonstrates that he was acting under the color of state law.
We think that Kern fails to demonstrate that Cavuoto “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West,
Kern claims that the City is liable under § 1983 because it knew of Cavuoto’s “womanizing” and failed to stop it. Under Kern’s theory, the City’s duty to prevent Cavuoto’s alleged womanizing arose from its supervisory relationship with Cavuoto. Kern claims that this relationship existed because the City paid Cavuoto a full salary and provided him with benefits while he was president of Local 1071. Even assuming that Cavuoto could be considered to have been under the City’s supervision while he was the president of Local 1071, we think that the district court properly dismissed her § 1983 claim against the City.
We have held that, “[i]n order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policy-making level, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy.” Gottlieb v. County of Orange,
Kern argues that the fact that the City knew of Cavuoto’s harassment yet failed to take any affirmative action to prevent Ca-vuoto from committing further harassment demonstrates a policy of support for the harassment. We think that Kern fails to demonstrate that Cavuoto’s harassment and assault occurred as a result of a municipal custom or policy. There is no indication that either the City or Cavuoto’s superiors at the RFD knew of Cavuoto’s alleged womanizing. The record does not reveal that, prior to Ca-vuoto’s alleged assault, Kern or anyone else ever complained about Cavuoto to the City or to Cavuoto’s superiors at the RFD. Moreover, while Kern claims that it was well-known around the Firehouse that Cavuoto was a “pig” who had stated that he hires secretaries “with fast hands and slow lips,” these assertions are wholly conelusory and are nоt sufficient to defeat a Fed.R.Civ.P. 12(b)(6) motion to dismiss. See Butler v. Castro,
C. Claim against RFD and Ippolito
Finally, Kern claims that the RFD and Ippolito are liable under § 1983 for retaliating against McMenemy by denying him a promotion to Captain in the RFD after he reported Cavuoto’s harassment and assault to the executive board of Local 1071 and the RFD. We think that the district court properly found that Kern laсks standing to raise a § 1983 claim on the basis of retaliation against McMenemy.
In Warth v. Seldin,
II. Title VII claims
Kern argues that the district court erred by failing to allow her to amend her complaint to add Title VII claims against the City and Local 1071. We disagree.
Title VII provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer ... to discriminate
A. Claim against the City
In denying Kern’s motion to amend her complaint to add a Title VII cause of action against the City, the district court found that the City was not Kern’s employer under Title VII and that “there was no direct connection between the [City’s] actiоns and the claimed harm to [Kern].” While Kern concedes that she was not directly employed by the City, she claims that her job would not exist but for the employment of the firefighters for whom she works and the employment contract between the RFD employees and the City. Kern argues that, because of this connection, the City should be considered her employer for purposes of Title VII.
In support of her argument, Kern points to Spirt v. Teachers Insurance & Annuity Ass’n,
Spirt, however, is distinguishable from the present case. First, Local 1071, unlike LIU in Spirt, has not delegated any of its employment responsibilities to the City. Furthermore, there is no indication that the City shared any of Local 1071’s administrative responsibilities. The City had no authority to hire or fire Kern, to supervise her work or conditions of employment, to determine her rate or method of pay, or to maintain records of her employment. Indeed, Kern fails to allege that her employment at Local 1071 was affected by the City in any way. The only connection that Kern alleges between the City and her employment at Local 1071 is that Local 1071—and therefore her job— would not exist without a city fire department. However, we think that this relationship is too tenuous to bring the City under the Title VII definition of employer. Therefore, the district court properly denied Kern’s motions to amend her complaint to add a Title VII action against the City.
B. Claim against Local 1071
In denying Kern’s motion to amend her complaint to add a Title VII cause of action against Local 1071, the district court held that, in order for Local 1071 to be deemed an “employer” within the meaning of Title VII and thus be amenable to a Title VII cause of action, it must have at least 15 employees. The district court, following an
Kern claims that the district court erred in two regards. First, Kern claims that the district court erred in holding that she must prove that Local 1071 employed at least 15 employees during the alleged discrimination in order for her to maintain a Title VII action against Local 1071. According to Kern, because Local 1071 is a labor organization, there is no minimum number of employees requirement to maintain an action under Title VII. In the alternative, Kern claims that the district court erred in determining that Local 1071 employed fewer than 15 employees during the alleged discrimination.
In support of her argument that she need not demonstrate that Local 1071 had 15 employees in order to maintain her Title VII cause of action, Kern points to the EEOC Compliance Manual, Volume II, § 605, Appendix N. The manual explains that both labor organizations and employment agencies with fewer than 15 employees may be covered by Title VII if they regularly deal with employers covered by Title VII. According to Kern, because Local 1071 regularly deals with the City, an employer covered by Title VII, she need not demonstrate that Local 1071 has 15 employees.
We know of no federal court that has adopted this interpretation of Title VII. To the contrary, it consistently has been held that, when a plaintiff brings a Title VII action against a union in its capacity as an employer, the plaintiff must demonstrate that the union meets the Title VII definition of “employer.” On the other hand, if a plaintiff brings a Title VII action against a union in its capacity as a labor organization, the plaintiff must demonstrate that the union meets that statutory definition of a “labor organization.”
Title VII defines an employee as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). Courts have held that directors or board members, while traditionally viewed as employers, can be cоnsidered employees depending upon their responsibilities within the business. See, e.g., EEOC v. Johnson & Higgins, Inc.,
In the present case, Kern fails to demonstrate that a traditional employee-employer relationship existed between the eight non-officer board members and Local 1071. The functiоn of the eight non-officer board members was to represent their various constituencies on a board that made and directed the policy of Local 1071 and exercised general oversight over Local 1071’s officers. There is no indication that any of the non-officer board members performed any traditional employee duties, such as maintaining records or managing the office. Moreover, there is no indication that the non-officer board members were responsible to anyone but themselves. Thus, the district cоurt properly found that the non-officer members of Local 1071’s executive board were not employees for purposes of Title VII. Without these eight members being considered employees, Kern is unable to demonstrate that Local 1071 had 15 employees. Accordingly, the district court correctly found that it would be futile to allow Kern to amend her complaint to add a Title VII action against Local 1071.
CONCLUSION
We have considered Kern’s other contentions, and we find them all to be without merit. In view of the foregoing, we affirm the judgment of the district court.
Notes
. Pursuant to a contract between the City and Local 1071, Cavuoto was granted "release time” from his job with the RFD to allow him to perform his duties as president of Local 1071. However, Cavuoto still received full pay and benefits from the City as if he were a full-time employee of the RFD.
. Section 1983, in part, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Cоnstitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
. 42 U.S.C. § 2000e(d) states, in part:
The term “labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment ....