Malcolm v. Honeoye Falls Lima Central School District , 483 F. App'x 660 ( 2012 )

11-1894-cv
Malcolm v. Honeoye Falls Lima Cent. Sch. Dist.
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 “SUMMARY ORDER”). A
PARTY CITING 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 Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of May, two thousand twelve.
PRESENT:
JOSEPH M. McLAUGHLIN,
ROBERT D. SACK,
GERARD E. LYNCH,
Circuit Judges.
__________________________________________
BERNICE MALCOLM,
Plaintiff-Appellant,
v. No. 11-1894-cv
HONEOYE FALLS LIMA CENTRAL SCHOOL
DISTRICT,
Defendant-Appellee.
_________________________________________
FOR PLAINTIFF-APPELLANT: Bernice Malcolm, pro se, West
Henrietta, New York.
FOR DEFENDANT-APPELLEE: Michael P. McClaren, Kevin T. O’Brien,
Webster Szanyi LLP, Buffalo, New York.
Appeal from a judgment of the United States District Court for
the Western District of New York (David G. Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Plaintiff-Appellant Bernice Malcolm brought this action against
her former employer, Defendant-Appellee Honeoye Falls Lima Central
School District (“Honeoye”). In a prior appeal, we affirmed the
district court’s dismissal of nearly all of Malcolm’s discrimination
and breach of contract claims, but ordered a limited remand solely
to allow the district court to consider her allegation that Honeoye
had “terminated replacement health insurance benefits that she was
eligible to receive under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (‘COBRA’), while permitting other
similarly situated white applicants to retain those benefits.”
Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 399 F. App’x 680,
681-82 (2d Cir. 2010) (internal citation omitted). Malcolm, pro se,
now appeals from the district court’s subsequent judgment dismissing
her claims of discrimination and retaliation regarding COBRA,
brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983, and denying
her motions for reconsideration and for leave to amend her amended
complaint. We assume the parties’ familiarity with the facts,
proceedings below, and the issues on appeal.
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We review de novo a district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), construing the complaint liberally,
accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To
survive a motion to dismiss under Rule 12(b)(6), 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).
In addition, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
We affirm the district court’s judgment because Malcolm has
“failed to allege even the basic elements” of a discrimination or
retaliation claim. Patane v. Clark, 508 F.3d 106, 112 n.3 (2d Cir.
2007).
First, Malcolm failed to sufficiently allege a claim of racial
discrimination. To state a claim of discrimination under Title VII,
a plaintiff must allege, inter alia, that she suffered an adverse
employment action. See Ruiz v. County of Rockland, 609 F.3d 486,
491-92 (2d Cir. 2010). A plaintiff sustains an adverse employment
action if she endures a “materially adverse change” in the terms and
conditions of employment. See Galabya v. NYC Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000) (internal quotation marks omitted). To be
“materially adverse,” a change in working conditions “might be
indicated by a termination of employment, . . . a material loss of
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benefits, . . . or other indices . . . unique to a particular
situation,” and must be “more disruptive than a mere inconvenience
or an alteration of job responsibilities.” Id. (internal quotation
marks omitted). Further, “[w]hen considering whether a plaintiff
has raised an inference of discrimination by showing that she was
subjected to disparate treatment . . . the plaintiff must show she
was similarly situated in all material respects to the individuals
with whom she seeks to compare herself.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal quotation marks
omitted). The same requirements for a showing of disparate
treatment apply to race discrimination claims under § 1983. See
Brown v. City of Oneonta, 221 F.3d 329, 336-37 (2d Cir. 2000).
Here, despite Malcolm’s claims that Honeoye “discontinued” and
“canceled” her COBRA coverage, her own submissions and the documents
she provided in support of her claims demonstrate that she suffered
no lapse in her COBRA coverage and successfully secured COBRA
benefits on August 18, 2008. Indeed, the same documents show that
any risk that she would lose coverage was caused by her own failure
to submit the required enrollment form.
Second, Malcolm’s claim that she was retaliated against for
engaging in a protected activity fails because, as explained above,
Malcolm’s COBRA benefits were not terminated. See Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 n.6 (2d Cir.
2011) (noting that a “materially adverse employment action” is a
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required element in a Title VII retaliation action). Any alleged
delays attributable to Honeoye in processing Malcolm’s COBRA
benefits were immaterial because such delays would not “deter a
reasonable worker in the plaintiff’s position from exercising [her]
legal rights.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 163
(2d Cir. 2011) (internal quotation marks omitted).
Finally, the district court did not abuse its discretion in
denying Malcolm’s motion to amend her amended complaint. See Starr
v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (motions
for leave to amend are reviewed for abuse of discretion). Amendment
in this case would be futile because the absence of a lapse in COBRA
coverage precludes Malcolm from successfully stating a
discrimination or retaliation claim concerning that coverage. See
Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
We have considered Malcolm’s other arguments on appeal and have
found them to be without merit. Because the district court on
remand was limited to considering solely claims relating to alleged
discontinuation of Malcolm’s COBRA benefits, Malcolm’s arguments
relating to previously-dismissed claims are barred by our prior
decision. Accordingly, the judgment of the district court is hereby
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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