    15-3350
    Carris v. First Student, Inc.


                               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 ASUMMARY ORDER@). A PARTY CITING TO 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 8th day of March, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                GERARD E. LYNCH,
                DENNY CHIN,
                      Circuit Judges.
    _____________________________________

    Margo Carris,

                                    Plaintiff-Appellant,

                         v.                                                            15-3350

    First Student, Inc.,

                      Defendant-Appellee.
    _____________________________________

    FOR APPELLANT:                               Margo Carris, pro se, Syracuse, NY.

    FOR APPELLEE:                                Ivan Ross Novich, Littler Mendelson, P.C., Newark, NJ.

              Appeal from a judgment of the United States District Court for the Northern District of

    New York (Suddaby, C.J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part,

and the case is REMANDED for further proceedings.

       Appellant Margo Carris, proceeding pro se, appeals from the judgment entered by the

United States District Court for the Northern District of New York (Suddaby, C.J.) on September

18, 2015, dismissing Carris’s complaint and denying her leave to amend the complaint. In her

complaint, Carris alleged, inter alia, that her former employer, First Student, Inc., fired her based

on her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1982),

and New York Executive Law § 296. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s dismissal of a complaint for failure to state a claim,

“construing the complaint liberally, accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief

that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ]

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       To survive a motion to dismiss, a Title VII plaintiff does not have to plead a full prima facie

case pursuant to the first stage of the burden-shifting framework outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); she “need only give plausible support to a minimal inference

of discriminatory motivation.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d

Cir. 2015) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). To support

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a minimal inference of discrimination, a plaintiff may allege disparate treatment by showing “the

more favorable treatment of employees not in the protected group,” Littlejohn, 795 F.3d at 312

(quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)), who are “similarly situated

in all material respects.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting

Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Whether the plaintiff and these

comparator employees are similarly situated in “‘all material respects’ will vary from case to

case,” and while “[t]he plaintiff’s and comparator’s circumstances must bear a ‘reasonably close

resemblance,’” they “need not be ‘identical.’” Brown, 756 F.3d at 230 (quoting Graham, 230 F.3d

at 40). For a disparate treatment claim based on an employer’s imposition of lighter discipline for

comparators’ misconduct, the determination whether the comparators’ offenses were of

“comparable seriousness requires – in addition to an examination of the acts – an examination of

the context and surrounding circumstances in which those acts are evaluated.” Graham, 230 F.3d

at 40. “Ordinarily, ‘[w]hether two employees are similarly situated . . . presents a question of

fact,’ rather than a legal question to be resolved on a motion to dismiss.” Brown, 756 F.3d at 230

(quoting Graham, 230 F.3d at 39); see also Graham, 230 F.3d at 42-44 (reversing summary

judgment where the plaintiff offered sufficient evidence for a reasonable jury to find that

comparators received lighter punishment for comparably serious violations of the same

disciplinary standards).

       Here, Carris alleged facts that plausibly gave rise to an inference of discrimination: she

claimed that she was terminated for violating a company policy concerning student confidentiality

although three white bus drivers, who violated policies concerning student safety, were only

placed on administrative leave. See Compl. ¶¶ 14-16. Depending on the results of discovery, “an

                                                3
examination of the context and surrounding circumstances in which [the employees’] acts are

evaluated,” Graham, 230 F.3d at 40, could reasonably yield the conclusion that the three

comparator bus drivers’ violations were comparably serious to that of Carris. See Graham, 230

F.3d at 39-40; see also Brown, 756 F.3d at 230-31. The comparators’ conduct, based on the

allegations of the complaint, appeared to jeopardize student safety. Two of the white bus drivers

left sleeping children on buses, and one of these drivers, upon realizing that the children were still

on the bus, “rushed back into the driver seat and proceeded to exit the yard without reporting it to

safety.” Compl. ¶¶ 15-16. The other comparator bus driver deposited a kindergarten student at

an unauthorized stop in the dark, leaving the child at least six minutes away by foot from his home.

See id. ¶ 14.

        According to the complaint, Carris’s violation of company policy arose when she visited a

student’s home after the student hit and spit on other students on the bus, causing chaos while

Carris was driving. See id. ¶¶ 11-12. Although Carris’s conduct was intentional rather than

negligent, this factor alone may not warrant the finding that the comparators were not similarly

situated.1 Further factual development is needed to aid in the determination of whether Carris

was similarly situated to white comparators who received more lenient punishments than she did.

Consequently, we find that Carris has pleaded facts that give “plausible support to a minimal

inference of discriminatory motivation,” Vega, 801 F.3d at 84 (citing Littlejohn, 795 F.3d at 311),

and we decline to affirm the dismissal of Carris’s Title VII claim.




1
 Further, one comparator driver’s alleged act of “exit[ing] the yard without reporting [the alleged
violation] to safety,” Compl. ¶ 16, might be viewed as intentional conduct.

                                                  4
       However, we affirm the district court’s dismissal of Carris’s state law claim. We review

de novo dismissals for lack of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). Cayuga Nation v. Tanner, 824 F.3d 321, 327 (2d Cir. 2016). A plaintiff

cannot bring a claim in federal court under N.Y. Exec. Law § 296 if she has already pursued that

claim with the New York State Division of Human Rights (“NYSDHR”). See Desardouin v. City

of Rochester, 708 F.3d 102, 106 (2d Cir. 2013); N.Y. Exec. Law § 297(9) (setting out election of

remedies). Here, the district court properly dismissed Carris’s state law claim: she filed a

complaint with the NYSDHR, which that body dismissed for lack of probable cause.

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

the foregoing reasons, the judgment of the district court is hereby AFFIRMED as to its dismissal

of Carris’s claim under New York Executive Law § 296 and its denial of leave to amend the

complaint, 2 and VACATED as to its dismissal of Carris’s Title VII claim. The case is

REMANDED for further proceedings.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




2
  Because First Student had already answered Carris’s original complaint, First Student’s motion
to dismiss the complaint should be construed as a motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c). See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126-27
(2d Cir. 2001).

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