         10-221-cv
         Schwab v. Smalls

                                         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 for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 27th day of July, two thousand eleven.

 4       PRESENT:

 5                          DENNIS JACOBS,
 6                                      Chief Judge,
 7                          GUIDO CALABRESI,
 8                          ROBERT D. SACK,
 9                                     Circuit Judges.

10       --------------------------------------
11        MARILYN SCHWAB,

12                                   Plaintiff-Appellant,

13                           -v-                                                               No. 10-221-cv
14
15        ROBERT SMALLS, individually, ROBERT L.
16        CHAKAR JR., individually, SONJA BROWN,
17        individually, GREENBURGH CENTRAL SCHOOL
18        DISTRICT NO. 7,

19                                   Defendants-Appellees.

20       --------------------------------------

21       Appearing for Appellant:                           Drita Nicaj, Lovett & Bellantoni, LLP, Hawthorne,
22                                                          New York.
 1   Appearing for Appellees:                       Lewis R. Silverman, Rutherford & Christie, LLP,
 2                                                  New York, New York.

 3          Appeal from a December 18, 2009, judgment of the United States District Court for the
 4   Southern District of New York (Robinson, J.).

5         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
6    DECREED that the judgment of the district court be, and it hereby is, AFFIRMED IN PART and
7    VACATED AND REMANDED IN PART.

8           Plaintiff-appellant Marilyn Schwab appeals from the district court's order granting

9    judgment on the pleadings to all defendants and dismissing, without prejudice, Schwab's

10   complaint brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985.1 Schwab's complaint alleges

11   that the individual defendants-appellees -- Robert Smalls, Robert L. Chakar Jr., and Sonja Brown

12   -- conspired to and did discriminate against the plaintiff on the basis of her race,2 in violation of

13   her right to equal protection under the Fourteenth Amendment to the United States Constitution.

14          We assume the parties' familiarity with the underlying facts, procedural history of the

15   case, and issues on appeal, which we repeat here only insofar as we think necessary to

16   understand our resolution of this appeal.

17          From 1997 to 2008, Schwab, who is white, worked part-time at Woodlands High School

18   as the Youth Employment Services ("YES") Coordinator for the defendant Greenburgh Central

19   School District No. 7 (the "District"). Schwab asserts that between June and October of 2008,

20   Smalls, the District Superintendent of Schools (who is African-American), and Chakar, the



            1
              In proceedings before the district court, Schwab withdrew her claim under § 1985 and a
     New York state-law claim. See J.A. 26 n.2. She has not appealed from the district court's
     dismissal of her § 1981 claim. See J.A. 28; Appellant's Br. 2 n.2.
            2
              Schwab's complaint also alleges discrimination on the basis of religion and age, but she
     withdrew her religious discrimination claim and abandoned her age discrimination claim in
     briefing before the district court. See J.A. 25 n.1.
                                                       2
 1   principal of Woodlands High School (whom the plaintiff terms "Arab-Lebanese," J.A. 6),

 2   "coerce[d] her [into] involuntary retirement," J.A. 8, by demanding that she provide a report

 3   regarding the students' success securing employment, which data Smalls knew Schwab had never

 4   been asked to collect or report. In essence, Schwab alleges that Smalls's and Chakar's demands

 5   for the data were a pretext for racial discrimination against her. When Schwab failed to provide

 6   a report meeting Smalls's professed expectations, he declined to recommend her reappointment

 7   for the 2008-09 school year and named defendant Brown (who is African-American) as

 8   Schwab's replacement.

 9           "We review de novo a district court's decision to grant a motion for judgment on the

10   pleadings pursuant to Federal Rule of Civil Procedure 12(c)." Hayden v. Paterson, 594 F.3d

11   150, 160 (2d Cir. 2010). "In deciding a Rule 12(c) motion, we 'employ the same standard

12   applicable to dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Id. (quoting Johnson v. Rowley,

13   569 F.3d 40, 43 (2d Cir. 2009) (per curiam)) (brackets omitted).

14           "To survive a motion to dismiss, a complaint must contain sufficient factual matter,

15   accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.

16   Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim

17   has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

18   reasonable inference that the defendant is liable for the misconduct alleged." Id. "Th[is]

19   plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer

20   possibility that a defendant has acted unlawfully." Id. Nevertheless, "a well-pleaded complaint

21   may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and

22   that recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotation marks

23   omitted).
                                                        3
 1          Here, the district court analyzed Schwab's complaint under the three-part burden-shifting

 2   standard articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), concluding

 3   that because the plaintiff had not "alleged facts giving rise to an inference of [the defendants']

 4   discriminatory intent," J.A. 30, she had not met her burden of pleading a plausible claim "that any

 5   of the [i]ndividual [d]efendants acted unlawfully," id. at 32.

 6          In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court interpreted the

 7   McDonnell Douglas standard to be "an evidentiary standard, not a pleading requirement," id. at

 8   510; see generally id. The teaching of Swierkiewicz, then, is that a plaintiff alleging employment

 9   discrimination need not plead facts establishing a plausible prima facie case of discrimination to

10   survive a motion to dismiss.

11          Questions have been raised, however, as to Swierkiewicz's continued viability in light of

12   Twombly and Iqbal. Compare Boykin v. KeyCorp, 521 F.3d 202, 212-13 (2d Cir. 2008) (pre-

13   Iqbal case concluding that Twombly "affirmed the vitality" of Swierkiewicz), and Al-Kidd v.

14   Ashcroft, 580 F.3d 949, 974 (9th Cir. 2009) (stating that Twombly "reaffirmed" Swierkiewicz's

15   "reject[ion of] a fact pleading requirement for Title VII employment discrimination"), rev'd on

16   other grounds sub nom. Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011), with Fowler v. UPMC

17   Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (Swierkiewicz "has been repudiated by both

18   Twombly and Iqbal . . . at least insofar as [Swierkiewicz] concerns pleading requirements and

19   relies on Conley [v. Gibson, 355 U.S. 41 (1957)].").

20

21          We need not address these questions, however, because we conclude that Schwab's

22   complaint alleges facts sufficient to state a claim of employment discrimination against

23   defendants Smalls and Chakar under both the Swierkiewicz standard and the more demanding
                                                       4
 1   McDonnell Douglas-based approach adopted by the district court. The plaintiff's complaint

 2   alleges that (1) she is white and Smalls and Chakar are African-American and "Arab-Lebanese,"

 3   respectively; (2) she held her position without incident for many years; and (3) her employment

 4   was terminated after Smalls refused to recommend her reappointment; and (4) the circumstances

 5   of her termination are suggestive of discrimination. With regard to the fourth point -- the final

 6   element of a prima facie case of discrimination under McDonnell Douglas and the only element

 7   that the defendants contest for the purposes of this appeal -- the complaint provides the

 8   approximate date and substance of the defendants' meeting at which they agreed to their "plan";

 9   alleges that their aim was to force Schwab out of her position so that they could appoint a less

10   qualified African-American woman in her place; and details the allegedly pretextual requests for

11   data that Schwab had never been asked or required to maintain. We think this satisfies Schwab's

12   burden at this early stage of the litigation under either of the two arguably applicable pleading

13   standards.

14          Inasmuch as the complaint does not plead any specific facts with regard to defendant

15   Sonja Brown's alleged involvement in the plan to discriminate, we affirm the district court's

16   dismissal of the claims against her.

17          Finally, we affirm the dismissal of Schwab's claim against the District. Schwab has not

18   alleged that any of the defendants acted pursuant to a city policy or practice, as required to make

19   out a claim of municipal liability under section 1983. See Back v. Hastings on Hudson Union

20   Free Sch. Dist., 365 F.3d 107, 128 (2d Cir. 2004) (citing Monell v. Dep't of Soc. Servs., 436 U.S.

21   658, 694 (1978)). And despite a vague assertion that "Smalls manifestly had the final

22   discretionary decision making authority" with regard to whether to recommend Schwab's

23   reappointment for the 2008-09 school year, she has not adequately alleged that any of the
                                                       5
1   individual defendants had "final authority to establish municipal policy with respect to" the hiring

2   and firing of District employees. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

3          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED IN

4   PART and VACATED AND REMANDED IN PART.

5                                                     FOR THE COURT:
6                                                     CATHERINE O'HAGAN WOLFE, CLERK

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