13-2141-cv
Lucio v. NYC Dep’t of Educ.
                              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 5th day of August, two thousand fourteen.


PRESENT:    RALPH K. WINTER,
            PIERRE N. LEVAL,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________

AMINAH LUCIO,
         Plaintiff - Appellant,

                  v.                                             13-2141-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,
MARIE DOUYON,
            Defendants - Appellees.
______________________________________

FOR APPELLANT:                                    JASON M. WOLF, Wolf & Wolf, LLP,
                                                  Bronx, New York.

FOR APPELLEE NYC DEPARTMENT
OF EDUCATION:                                     Ronald E. Sternberg (Larry A. Sonnenshein,
                                                  of counsel, on the brief) for Michael A.
                                                  Cardozo, Corporation Counsel of the City of
                                                  New York, New York, New York.

FOR APPELLEE MARIE DOUYON:                        Walter A. Kretz, Jr., Scoppetta Seiff Kretz
                                                  & Abercrombie, New York, New York.
       Appeal from the United States District Court for the Southern District of New

York (Deborah A. Batts, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFIRMED.

       Plaintiff-appellant Aminah Lucio (“Lucio”) appeals an order of the district court

denying her request to vacate or to reconsider the judgment of September 11, 2012,

dismissing her complaint, and her request to amend her complaint. We review a district

court’s denial of a motion to vacate a judgment or for reconsideration of that judgment, as

well as a denial of leave to amend, for abuse of discretion. See Ruotolo v. City of New

York, 514 F.3d 184, 191 (2d Cir. 2008). We assume the parties’ familiarity with the facts

and the record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

       After Lucio failed to oppose defendant New York City Department of Education’s

(“DOE”) motion to dismiss, the district court dismissed her complaint on a number of

grounds, including the untimeliness of her Title VII claim. Lucio subsequently moved for

reconsideration or vacatur of the judgment, arguing that her failure to oppose, and a

factual misstatement in her complaint that justified the court’s dismissal of her Title VII

claim, were the result of her former counsel’s illness. The district court denied Lucio’s

motion on the grounds that counsel’s illness did not warrant vacating the dismissal, and

that the error that led to the dismissal of the Title VII claim was ascribable to the plaintiff,

not to the court.


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       We have our doubts about whether this decision was well-advised. We need not

decide, however, whether the decision exceeded the broad bounds of the district court’s

discretion. “This Court . . . is free to affirm an appealed decision on any ground which

finds support in the record, regardless of the ground upon which the trial court relied.”

McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000). Assuming arguendo that counsel’s

illness would justify vacatur of the judgment dismissing Lucio’s complaint, we affirm the

district court’s denial because a review of Lucio’s complaint demonstrates that she failed

to state a plausible claim to relief under Title VII, 42 U.S.C. § 1981, and New York State

and City Human Rights Law, and the district court properly declined to exercise

supplemental jurisdiction over her remaining state law tort claims.1

       A complaint must state a claim that is plausible on its face. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Aschroft v. Iqbal, 556 U.S. 662, 678

(2009). “[A] dismissal pursuant to Rule 12(b)(6) is, at bottom, a declaration that the

plaintiff’s complaint and incorporated materials are insufficient as a matter of law to

support a claim upon which relief may be granted.” Halebian v. Berv, 644 F.3d 122, 130-

31 (2d Cir. 2011).



1
  In her complaint, Lucio alleged claims for discrimination and hostile work environment in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq, and 42 U.S.C. § 1981,
and retaliation in violation of Title VII, Section 1981, and New York State and City Human
Rights Law, N.Y. Exec. Law § 296, N.Y.C. Admin. Code § 8-107. She also alleged state law
tort claims of Intentional Infliction of Emotional Distress and Negligent Supervision.

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       Lucio’s complaint describes a number of instances when her former supervisor

Marie Douyon treated Lucio or her co-workers with hostility or disrespect. The

complaint pleads no facts, however, that would allow a court to draw a reasonable

inference that Lucio was subjected to any mistreatment or adverse action because of her

race. See Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) (“Everyone can be

characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are

harsh, unjust, and rude. It is therefore important in hostile work environment cases to

exclude from consideration personnel decisions that lack a linkage or correlation to the

claimed ground of discrimination.”). In the absence of such allegations, Lucio has failed

to plead plausible claims of discrimination or hostile work environment in violation of

Title VII and Section 1981. See Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir.

1999) (“A disparate treatment claim alleges that the employer treats some people less

favorably than others because of race.”); Mian v. Donaldson, Lufkin & Jenrette Sec.

Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993).

       Lucio has also failed to state a plausible claim of retaliation under any of the

statutory schemes that she invokes, all of which require the plaintiff to have engaged in

protected activity of which the employer is aware.2 See Kelly v. Howard I. Shapiro &


2
  We acknowledge that plaintiff’s NYCHRL retaliation claim is subject to different and more
liberal standards than her federal or NYSHRL retaliation claims. See Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (Local Civil Rights Restoration Act
of 2005 “amended the NYCHRL to require that its provisions be construed liberally for the
accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether
federal or New York State civil and human rights laws, including those laws with provisions
comparably-worded to provisions of this title, have been so construed” (internal quotation marks
and alterations omitted)). Nonetheless, to state a claim of retaliation under NYCHRL, the

                                               4
Assocs. Consulting Engineers, P.C., 716 F.3d 10, 15 (2d Cir. 2013) (“As to the second element

of the prima facie [retaliation] case, implicit in the requirement that the employer have been

aware of the protected activity is the requirement that it understood, or could reasonably have

understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII.”

(internal quotation marks and alterations omitted)); see also Hicks v. Baines, 593 F.3d 159, 164

(2d Cir. 2010) (plaintiff’s NYSHRL and Section 1981 “retaliation claims are analyzed pursuant

to Title VII principles”). Although Lucio alleges that she complained of Douyon’s

treatment of her to Douyon’s supervisor and subsequently received an unsatisfactory

rating, Lucio nowhere alleges that she complained that Douyon’s treatment was

discriminatory. While it is unnecessary for an individual to specifically invoke the word

discrimination when complaining in order to alert her employer to her protected activity,

there must be some basis to conclude that the employer was aware that the plaintiff

engaged in protected activity. Additionally, we affirm the district court’s denial of leave

to amend because “[a] plaintiff need not be given leave to amend if [she] fails to specify


plaintiff must still allege, among other things, that she engaged in protected activity within the
meaning of NYCHRL and that her employer was aware that she participated in such activity.
See Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789, 791 (2d Dep’t 2013); Bendeck v.
NYU Hosps. Ctr., 909 N.Y.S.2d 439, 440-41 (1st Dep’t 2010). Plaintiff has pled no facts that
tend to suggest that her employer could have been aware that in complaining of Douyon’s
“treatment,” she was opposing a discriminatory practice prohibited by NYCHRL. Cf. Albunio v.
City of New York, 16 N.Y.3d 472, 479 (2011) (plaintiff “opposed” discrimination when she
defended her recommendation of a male police officer for a position where “a jury could find
that both [the defendant] and [the plaintiff] knew that [the male police officer] was [a
discrimination victim], and that [plaintiff] made clear her disapproval of that discrimination by
communicating to [defendant], in substance, that she thought [defendant’s] treatment of [the
male police officer] was wrong”). Furthermore, while plaintiff now claims that her retaliation
claim is based on the DOE’s failure to re-hire her in various supervisory positions after she filed
a complaint with the NYSDHR, her complaint does not allege that her failure to obtain those
positions was in any way retaliatory and she does not specify the facts she could plead in good
faith to correct this deficiency.

                                                 5
either to the district court or to the court of appeals how amendment would cure the

pleading deficiencies in [her] complaint.” TechnoMarine SA v. Giftports, Inc., — F.3d

—, 2014 WL 3408570, at *9 (2d Cir. July 15, 2014).

       Lucio also argues that the grounds on which the district court relied to dismiss her

complaint were erroneous in a number of respects. Lucio’s arguments are unavailing

because, even assuming arguendo that we have jurisdiction to review the underlying

dismissal order,3 the order should still be affirmed on the grounds that Lucio failed to

plead plausible claims of discrimination, hostile work environment, or retaliation, and the

district court properly declined to exercise supplemental jurisdiction over Lucio’s state

law tort claims.4

       For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




3
  Lucio failed to designate the underlying dismissal order as the order appealed from as required
by Federal Rule of Appellate Procedure 3(c). Nonetheless, we may assume the existence of
jurisdiction to review the dismissal order because the potential lack of jurisdiction does not
present a constitutional question. See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816
n. 11 (2d Cir. 2000).
4
  We construe the district court’s dismissal, which is arguably ambiguous, as declining, in light
of the dismissal of the federal claims, to exercise supplemental jurisdiction over the state law tort
claims, and therefore as a dismissal of those claims without prejudice.

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