17-200-cv
Lees v. CUNY

                           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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 23rd day of August, two thousand seventeen.

PRESENT:       JOHN M. WALKER, JR.,
               JOSÉ A. CABRANES,
               REENA RAGGI,
                            Circuit Judges.


CAROL LEES,

                      Plaintiff-Appellant,                       17-200-cv

                      v.

THE GRADUATE CENTER, CITY UNIVERSITY OF NEW
YORK,

                      Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                             JUSTIN S. CLARK (Matthew J. Blit, on the
                                                     brief), Levine & Blit, PLLC, New York,
                                                     NY.

FOR DEFENDANT-APPELLEE:                              DAVID LAWRENCE III, Assistant Solicitor
                                                     General (Barbara D. Underwood, Solicitor
                                                     General, Andrew W. Amend, Assistant
                                                     Solicitor General of Counsel, on the brief),
                                                     for Eric T. Schneiderman, Attorney


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                                                               General of the State of New York, New
                                                               York, NY.

     Appeal from the judgment of the United States District Court for the Southern District of
New York (Alvin K. Hellerstein, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 21, 2016 judgment of the District Court be
and hereby is AFFIRMED.

         Plaintiff-appellant Carol Lees appeals the December 21, 2016 judgment of the District
Court, dismissing her claims pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) and denying her leave to
amend her complaint. Lees initially alleged that defendant-appellee the Graduate Center of the City
University of New York (“CUNY”) violated Title IX of the Education Amendments of 1972 (“Title
IX”), 20 U.S.C. §§ 1681 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et
seq., the New York State Human Rights Law, and the New York City Human Rights Law by
engaging in a course of conduct that ultimately resulted in her termination from employment.
However, Lees appeals only the dismissal of her Title IX retaliation claim pursuant to Fed. R. Civ. P.
12(b)(6) and the denial of leave to amend. We assume the parties’ familiarity with the underlying
facts, procedural history of the case, and issues on appeal.

         We review de novo a district court’s dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See, e.g., Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We “constru[e] the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.” Chase Grp. All. LLC v. N.Y.C. Dep’t of Fin., 620 F.3d 146, 150 (2d
Cir. 2010) (internal quotation marks omitted); Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir.
2005). We likewise review de novo a district court’s denial of leave to amend that is based on an
interpretation of the law, such as futility. See Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114,
119 (2d Cir. 2012).

        Upon such review, we conclude that the District Court properly granted CUNY’s motion to
dismiss and denied Lees leave to amend her complaint. To establish a prima facie Title IX retaliation
claim, a plaintiff must show “a causal connection between the protected activity and the adverse
action.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011). This can be
done “either: (1) indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial evidence such as disparate treatment of
fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory



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animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,
117 (2d Cir. 2000).

          Lees has done neither. She did not establish causation directly because she alleged no direct
evidence of retaliatory animus. And she did not establish causation indirectly since by her own
admission she did not begin engaging in protected activity until over a year after Ms. Bishop allegedly
began exhibiting hostility toward Lees and CUNY stopped cooperating with her visa application. See
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only basis
for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation does not arise.”). Accordingly, she has
not made a prima facie case of retaliation under Title IX and the District Court properly dismissed her
claim under Fed. R. Civ. P. 12(b)(6).

        We also conclude that the District Court correctly denied Lees leave to amend her
complaint. A court may deny leave to amend a complaint as futile “if the proposed claim could not
withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus. Machs. Corp.,
310 F.3d 243, 258 (2d Cir. 2002). Here, Lees proposes amending her complaint to add only one
additional fact, the date that she orally complained to Ms. Bishop. But as Lees admits in her original
complaint, that conversation also took place after Ms. Bishop allegedly began exhibiting hostility
toward Lees and CUNY stopped cooperating with her visa application. Thus, even with the
inclusion of a precise date for the conversation, Lees’s complaint would still fail to make a prima facie
showing of causation.

                                           CONCLUSION

        We have reviewed all of the arguments raised by Lees on appeal and find them to be without
merit. For the foregoing reasons, we AFFIRM the December 21, 2016 judgment of the District
Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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