     11-2599
     Malone v. New York Pressman’s Union Number 2


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                              Circuit Judges.
11
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13       JEROME WATSON, SAMMY NG, ERIC
14       BROOKINGTON, ROBERT ABREU, MARCO
15       GONZALEZ,
16                 Plaintiffs,
17
18       WILLIE MALONE, DESIREE WILSON, EVA
19       LEE, OLIVIA WILSON, SHERRE WILSON,
20       ANGEL HERNANDEZ, NYTRICHA SMITH,
21       DANIEL PAULINO,
22                Plaintiffs-Appellants,
23
24                    -v.-                                               11-2599
25
26       NEW YORK PRESSMAN’S UNION NUMBER 2,
27       NYP HOLDINGS INC.,
28                Defendants-Appellees.

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 1   - - - - - - - - - - - - - - - - - - - -X
 2
 3   FOR APPELLANTS:            Roosevelt T. Seymour, Brooklyn,
 4                              New York.
 5
 6   FOR APPELLEES:             Carl J. Levine, Daniel
 7                              Engelstein, Levy Ratner, P.C.,
 8                              New York, New York (Counsel for
 9                              New York Pressman’s Union Number
10                              2);
11
12                              Michael Starr, Katherine Healy
13                              Marques, Holland & Knight LLP,
14                              New York, New York (Counsel for
15                              NYP Holdings Inc.).
16
17        Appeal from a judgment of the United States District
18   Court for the Southern District of New York (Swain, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgment of the district court be
22   AFFIRMED.
23
24
25        Plaintiffs brought discrimination complaints against
26   their employer, the New York Post (“Post”), and union, the
27   New York Pressman’s Union Number 2 (collectively,
28   “Defendants”), alleging: disparate impact discrimination
29   based on race and sex in violation of Title VII of the Civil
30   Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);
31   intentional discrimination based on race and sex in
32   violation of Title VII; and intentional discrimination based
33   on race in violation of Section 1981 of the Civil Rights Act
34   of 1866, 42 U.S.C. § 1981. We assume the parties’
35   familiarity with the underlying facts, the procedural
36   history, and the issues presented for review.
37
38        The United States District Court for the Southern
39   District of New York (Swain, J.) dismissed the complaint
40   pursuant to Rule 12(b)(6) of the Federal Rules of Civil
41   Procedure. “[W]e review the grant of a Rule 12(b)(6) motion
42   to dismiss de novo, ‘construing the complaint liberally,
43   accepting all factual allegations in the complaint as true,
44   and drawing all reasonable inferences in the plaintiff’s
45   favor.’” Chase Grp. Alliance LLC v. City of New York Dep’t
46   of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (quoting Chambers
47   v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)).

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 1        “To survive a motion to dismiss, a complaint must
 2   contain sufficient factual matter, accepted as true, to
 3   ‘state a claim to relief that is plausible on its face.’”
 4   Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
 5   (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
 6   570 (2007)).
 7
 8        [1] Disparate Impact Claim. “The basis for a
 9   successful disparate impact claim involves a comparison
10   between two groups--those affected and those unaffected by
11   the facially neutral policy. This comparison must reveal
12   that although neutral, the policy in question imposes a
13   significantly adverse or disproportionate impact on a
14   protected group of individuals.” Tsombanidis v. W. Haven
15   Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003). “[P]laintiffs
16   must . . . utilize the appropriate comparison groups. They
17   must first identify members of a protected group that are
18   affected by the neutral policy and then identify similarly
19   situated persons who are unaffected by the policy.” Id. at
20   576-77.
21
22        In alleging that Defendants’ agreement to transfer
23   employees from the Daily News to the Post had a disparate
24   impact, Plaintiffs compare the effects on women and minority
25   employees with the effects on white male employees. These
26   groups are not similarly situated: Women and minorities made
27   up a smaller proportion of the Journeyman classification
28   than they did of the Junior Pressman and Casual
29   classifications. The effects of the transfer--in which
30   transferees were placed at the bottom of the Journeyman
31   shift priority list, giving them seniority over all Junior
32   Pressmen and Casuals--are therefore a function of the pre-
33   existing demographics of the workplace. Plaintiffs do not
34   dispute that all Junior Pressmen and Casuals--regardless of
35   race or gender--were impacted by the transfer equally.
36
37        Plaintiffs’ argument that the transfer “locks in” the
38   effects of alleged past discrimination does not amount to a
39   disparate impact claim. See Wards Cove Packing Co. v.
40   Atonio, 490 U.S. 642, 656-57, superseded by statute on other
41   grounds, 42 U.S.C. § 2000e-2(k); cf. United States v.
42   Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971)
43   (invalidating a seniority system as relief for admitted past
44   discrimination).
45
46        [2] Intentional Discrimination Claims. Plaintiffs’
47   allegations that Defendants acted with the intent to

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 1   discriminate “are no more than conclusions,” and, as such,
 2   “are not entitled to the assumption of truth.” See Iqbal,
 3   129 S. Ct. at 1950. Plaintiffs’ only relevant factual
 4   allegations are that Defendants transferred Journeymen to
 5   the Post and took other actions that made it more difficult
 6   for Casuals and Junior Pressmen to advance with “intent to
 7   discriminate.” These are nothing more than “unadorned, the-
 8   defendant-unlawfully-harmed-me accusation[s].” See Iqbal,
 9   129 S. Ct. at 1949. Therefore, Plaintiffs’ intentional
10   discrimination argument fails.
11
12
13   Finding no merit in Plaintiffs’ remaining arguments, we
14   hereby AFFIRM the judgment of the district court.
15
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17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
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