12-1795-cv
Pungitore v. Barbera

                            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 Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of December, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

SUSAN PUNGITORE, Individually and on
Behalf of her Minor Child “SP”,

           Plaintiff-Appellant

                  v.                                            No. 12-1795-cv

JUDY BARBERA, as Assistant Superintendent
of Schools and Individually, DR. DOUGLAS
ADAMS, as Superintendent of Schools, and
RAMAPO CENTRAL SCHOOL DISTRICT,

         Defendants-Appellees
________________________________________________

For Plaintiff-Appellant:         PATRICIA FINN, Piermont, N.Y.

For Defendants-Appellees:         GREGG T. JOHNSON, Lemire Johnson, LLC, Malta, N.Y.
       Appeal from the United States District Court for the Southern District of New York
(Briccetti, J.).

          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

          Plaintiff-Appellant Susan Pungitore (“Pungitore”) appeals the March 30, 2012, judgment

of the United States District Court for the Southern District of New York (Briccetti, J.)

dismissing her claim that Defendants-Appellees Ramapo Central School District (“the District”),

Assistant Superintendent Judy Barbera (“Barbera”), and Superintendent Douglas Adams

discriminated against her daughter SP on the basis of gender. Pungitore sued the defendants

under 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681

et seq., alleging that the District refused to move SP from a single-accelerated math course to a

double-accelerated math course in the middle of the school year because of her gender. The

math course in question was taught by a male, Mr. Brian Schwartz (“Schwartz”), and all of its

students were boys. SP was not allowed into the course for the 2010-2011 academic year but

completed the course work independently. She was placed in a double accelerated math course

for the 2011-2012 term.

          Pungitore sought compensatory damages, punitive damages, and a permanent injunction

prohibiting the defendants from discriminating against SP and other female students. The

district court dismissed Pungitore’s claims for injunctive relief under Federal Rule of Civil

Procedure 12(b)(1) for lack of standing and her claim for damages under Rule 12(b)(6) for

failure to state a claim that could plausibly entitle her to relief. We assume the parties’

familiarity with the remaining facts and procedural history of the case, as well as the issues on

appeal.

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          We first consider Pungitore’s contention that the district court erred in dismissing her

claims for injunctive relief. We review the district court’s conclusion de novo, Carver v. City of

New York, 621 F.3d 221, 225 (2d Cir. 2010), and agree that Pungitore lacks standing. While

Pungitore has standing with respect to her damages claim, a plaintiff must demonstrate standing

separately for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

(2006). Standing requires, inter alia, that the plaintiff show an “actual or imminent” injury in

fact, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks

omitted), and when seeking prospective injunctive relief, the plaintiff must prove the likelihood

of future or continuing harm, City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Although

past wrongs may serve as “evidence bearing on ‘whether there is a real and immediate threat of

repeated injury,’” such evidence “‘does not in itself show a present case or controversy regarding

injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” Id. at 102

(quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Here, there is no present injury

because SP has already been placed in a double-accelerated math class, and, despite Pungitore’s

protestations, there is no indication that the District is likely to rescind SP’s placement or

discriminate against her in the future. There is simply not a “sufficient likelihood that [SP] will

again be wronged in a similar way,” id. at 111, and, therefore, no standing to pursue injunctive

relief.

          Pungitore also contends that the district court erred by dismissing her damages claims

under Rule 12(b)(6). The dismissal of a case for failure to state a claim is reviewed de novo,

Chase Group Alliance LLC v. City of New York Department of Finance, 620 F.3d 146, 150 (2d

Cir. 2010), and, like the district court, we must “confine [our] consideration to facts stated on the


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face of the complaint, in documents appended to the complaint or incorporated . . . by reference,

and to matters of which judicial notice may be taken,” Leonard F. v. Israel Discount Bank, 199

F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). The Supreme Court has

established a two-step process for determining whether a plaintiff has pled sufficient facts to

overcome a motion to dismiss. A court must first ignore “mere conclusory statements” or legal

conclusions, which are not entitled to the presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Then, assuming the

veracity of the remaining facts, “a complaint must contain sufficient factual matter . . . to ‘state a

claim [for] relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim

is plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (emphasis

added). While this plausibility standard is not “akin to a ‘probability requirement,’” it “asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550

U.S. at 556). Pleading facts that are “‘merely consistent with’ a defendant’s liability” is

insufficient. Id. (quoting Twombly, 550 U.S. at 557).

       Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving [federal funds],” subject to certain limited

exceptions. 20 U.S.C. § 1681(a). Title IX claims alleging disparate treatment based on gender

are informed by racial discrimination claims under Title VI. See Yusuf v. Vassar Coll., 35 F.3d

709, 714 (2d Cir. 1994). Therefore, under either statute, a plaintiff must show that: (1) the

defendant was discriminated against, (2) the discrimination was intentional, and (3) the

discrimination was a “motivating factor” in the defendant’s actions. See Tolbert v. Queens Coll.,

242 F.3d 58, 69 (2d Cir. 2001).

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       Here, Pungitore must plead facts supporting a plausible inference that gender bias was a

motivating factor in the District’s decision to deny SP’s request to transfer into the double-

accelerated math class. She makes numerous conclusory allegations of discrimination that we

must refuse to credit, and we find that her non-conclusory factual allegations do not move her

complaint “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. The

comments made by Schwartz, on which Pungitore heavily relies, simply do not give rise to a

reasonable inference that he was motivated by discriminatory animus. While Schwartz’s alleged

conduct, if it occurred, was undoubtedly unprofessional, we fail to see how his statements show

more than the slimmest possibility that his actions were actually motivated by SP’s gender, and,

as Iqbal and Twombly make clear, a mere possibility is insufficient to state a plausible claim for

relief. Moreover, the fact that Barbera had at least tentatively denied the transfer request before

SP attended Schwartz’s class because Barbera “did not feel [the double-accelerated class] was a

viable option” for any students in SP’s current class, see J. App’x at 13, significantly undermines

the proposed inference of discrimination. Indeed, Pungitore offers no more than conclusory

accusations that any District employee other than Schwartz, including Barbera, acted in a

discriminatory manner. Pungitore is, of course, correct that the double-accelerated math class

was comprised of only males; however, that fact, without more, is “‘merely consistent with’ [the]

defendant[s’] liability,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), and hardly

establishes a plausible inference of discrimination.1




       1
          We recognize that Pungitore’s complaint also alleges that “less qualified male students
had been placed” in the double-accelerated math class. J. App’x at 16. However, given the lack
of any alleged facts supporting this conclusory assertion, we need not afford it the presumption
of truth under Iqbal and Twombly. We do not, however, express a view on whether Pungitore
could have asked the district court for leave to amend her complaint to provide more detailed
factual allegations that support this conclusory statement.

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       We have considered Pungitore’s remaining arguments and find them to be without merit.

Therefore, for the foregoing reasons, district court properly dismissed Pungitore’s suit for lack of

standing and failure to state a claim. The judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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