15-1418-cv
Malcolm v. Honeoye Falls-Lima Educ. Ass’n


                                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 29th day of March, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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BERNICE MALCOLM,
                                 Plaintiff-Appellant,

                              v.                                          No. 15-1418-cv

HONEOYE        FALLS-LIMA        EDUCATION
ASSOCIATION (“HFLEA”),
                   Defendant-Appellee,

NEW YORK STATE UNITED TEACHERS, DAVID
YOUNG, MICHELLE CARNEVALE, WILLIAM
GARVIN,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          BERNICE MALCOLM,            pro   se,   West
                                                  Henrietta, New York.



*
    The Clerk of Court is directed to amend the caption as set forth above.

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APPEARING FOR APPELLEE:                  ANTHONY J. BROCK, Esq. (Richard E.
                                         Casagrande, Esq., on the brief), Latham,
                                         New York.

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

District of New York (David G. Larimer, Judge; Jonathan W. Feldman, Magistrate

Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 31, 2015, is AFFIRMED.

      Plaintiff Bernice Malcolm appeals pro se from the dismissal of her claims against

the New York State United Teachers union (“NYSUT”) for insufficient service of

process and from the award of summary judgment to Honeoye Falls-Lima Education

Association (“HFLEA”) on discrimination claims brought pursuant to 42 U.S.C. § 1981;

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; and

the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.1

We assume the parties’ familiarity with the facts and record of prior proceedings, which

we reference only as necessary to explain our decision to affirm.

      We review a dismissal for insufficient service of process under Fed. R. Civ. P.

12(b)(5) for abuse of discretion. See Dickerson v. Napolitano, 604 F.3d 732, 740 (2d

1
  Although Malcolm’s April 28, 2015 notice of appeal mentions only the summary
judgment award to HFLEA, we construe it to pertain also to the order dismissing
Malcolm’s complaint against NYSUT, which Malcolm challenges in her brief on appeal.
See Elliott v. City of Hartford, 823 F.3d 170, 173 (2d Cir. 2016) (holding that absent
“prejudice to an appellee, we read a pro se appellant’s appeal from an order closing the
case as constituting an appeal from all prior orders”). Malcolm’s brief, filed after the
denial of her motion for reconsideration, makes no arguments as to that denial, so any
challenge to it is waived. See Friends of Animals v. Clay, 811 F.3d 94, 99 n.8 (2d Cir.
2016).

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Cir. 2010). The district court did not abuse its discretion here because Malcolm served

NYSUT’s attorney, who was neither its officer nor its authorized agent. See Fed. R.

Civ. P. 4(h)(1)(B) (stating that unincorporated association must be served by delivering

pleadings to officer, managing or general agent, or other agent authorized to receive

service); Fed. R. Civ. P. 4(h)(1)(A) (stating that unincorporated association may be

served in manner prescribed by Rule 4(e)(1) for serving an individual, i.e., by following

state law); N.Y. Gen. Ass’ns Law § 13 (stating that labor organization may be served by

serving certain officers or business agent). Accordingly, Malcolm’s challenge to the

dismissal of her claims against NYSUT fails.

       Insofar as Malcolm disputes the magistrate judge’s jurisdiction to grant summary

judgment, that challenge fails because the record contains a signed consent to the exercise

of that jurisdiction, the authenticity of which has not been disputed. See 28 U.S.C.

§ 636(c).

       Her challenge to the denial of leave to amend the complaint fares no better. The

magistrate judge did not abuse his discretion in denying leave to amend because the

proposed amendments would likely not have permitted the complaint to withstand a

motion to dismiss or for summary judgment, and the opposing party would be prejudiced

by allowing amendment several years after the complaint’s filing and a year after

commencement of discovery. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d

Cir. 2008) (“Leave to amend, though liberally granted, may properly be denied for: undue

delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the



                                            3
opposing party by virtue of allowance of the amendment, futility of amendment, etc.”

(internal quotation marks omitted)).

      On de novo review of the summary judgment award, we will affirm only if the

record, viewed most favorably to Malcolm, shows no genuine issue of material fact and

HFLEA’s entitlement to judgment as a matter of law. See Jackson v. Fed. Express, 766

F.3d 189, 193–94 (2d Cir. 2014).        Title VII prohibits a labor organization from

discriminating against a member because of, inter alia, her race or sex. See 42 U.S.C.

§ 2000e-2(c).    Section 1981 and the NYSHRL also prohibit racially motivated

discrimination. See Village of Freeport v. Barrella, 814 F.3d 594, 604 (2d Cir. 2016);

Griffin v. Sirva Inc., 835 F.3d 283, 289–90 (2d Cir. 2016). To establish a discriminatory

motive, a plaintiff may rely on a theory of disparate treatment by showing “more

favorable treatment of employees not in the protected group” to whom the plaintiff is

“similarly situated in all material respects.” Littlejohn v. City of New York, 795 F.3d

297, 311–12 (2d Cir. 2015) (internal quotation marks omitted).           Applying these

principles here, we affirm the award of summary judgment to HFLEA on Malcolm’s

discrimination claims for substantially the reasons stated by the magistrate judge.

Insofar as Malcolm generally points to HFLEA’s supportive treatment of white teachers,

she fails to demonstrate how she is “similarly situated in all material respects” to them.

Id. at 312 (internal quotation marks omitted); see also Bey v. I.B.E.W. Local Union #3

Union Representatives, 374 F. App’x 187, 188 (2d Cir. 2010).

      Malcolm’s particular claim that HFLEA discriminatorily declined to grieve

counseling memos placed in her personnel file warrants no different conclusion. In the

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relevant time period, HFLEA undisputedly filed only one grievance, on behalf of a white

male teacher to challenge a letter reporting his unauthorized absence from the classroom.

For Malcolm to establish disparate treatment, she would have to have submitted evidence

suggesting that HFLEA treated her less favorably in a situation similar “in all material

respects,” Littlejohn v. City of New York, 795 F.3d at 312 (internal quotation marks

omitted), a burden she failed to carry. For instance, the comparator’s counseling memo

threatened further disciplinary action, while Malcolm’s specifically states that it should

not be construed as a formal disciplinary action. Thus, the comparator’s memo is more

easily interpreted as a letter of reprimand, which the union would grieve because its

placement in a personnel file without a hearing might violate New York law. Moreover,

the comparator’s memo states that his behavior may have resulted at least in part from

having stopped taking medication, a fact that the union may have been inclined to keep

out of the employee’s personnel file. Malcolm’s memo offers no comparable medical

explanation. Finally, Malcolm’s memo mentions that she failed to attend a follow-up

meeting, whereas the comparator’s does not.

      We have considered Malcolm’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

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




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