11-2463-cv
Drumm v. SUNY Geneseo College



                       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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29th day of June, two thousand twelve.

PRESENT: GUIDO CALABRESI,
           GERARD E. LYNCH,
           RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
_____________________________________

CONNIE DRUMM,
                                Appellant,

                  v.                                            11-2463-cv

SUNY GENESEO COLLEGE,
                      Appellee.
_____________________________________

FOR APPELLANT:                        STEVEN LAPRADE (Christina A. Agola, on the brief),
                                      Christina A. Agola, PLLC, Brighton, NY.

FOR APPELLEE:                         LAURA ETLINGER (Barbara D. Underwood, Solicitor
                                      General, Denise A. Hartman, Assistant Solicitor
                                      General, on the brief), for Eric T. Schneiderman,
                                      Attorney General of the State of New York, Albany,
                                      NY.


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

District of New York (David G. Larimer, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Plaintiff Connie Drumm was employed as a janitor with defendant State University

of New York Geneseo College. On October 13, 2009, she received notification from

defendant that her employment would be terminated as of November 13, 2009, “due to

one cumulative year of absence.” Plaintiff then commenced this action against defendant,

alleging that defendant retaliated against her in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-3(a).1 The district court dismissed plaintiff’s complaint

for failure to state a claim, and denied plaintiff leave to amend. We assume the parties’

familiarity with the underlying facts and the issues on appeal.

       We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6),

“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). To survive a motion to dismiss, a

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). In addition, “the tenet that a court



       1
        The complaint also included a retaliation claim under the New York State Human
Rights Law. See N.Y. Exec. Law § 296(7). Plaintiff has not appealed the district court’s
dismissal of that claim.

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must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Faber v. Metro. Life

Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (“We are not . . . bound to accept conclusory

allegations or legal conclusions masquerading as factual conclusions.” (internal quotation

marks omitted)).

       Title VII provides that “[i]t shall be an unlawful employment practice for an

employer to discriminate against any . . . employee[] . . . because [the employee] has

opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. §

2000e-3(a). “To state a claim for retaliation in violation of Title VII, a plaintiff must

plead facts that would tend to show that: (1) she participated in a protected activity known

to the defendant; (2) the defendant took an employment action disadvantaging her; and

(3) there existed a causal connection between the protected activity and the adverse

action.” Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007). As we have recognized, “[a]

plaintiff may prevail on a claim for retaliation even when the underlying conduct

complained of was not in fact unlawful so long as [she] can establish that [she] possessed

a good faith, reasonable belief that the underlying challenged actions of the employer

violated the law.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (internal

quotation marks and alteration omitted); see also Manoharan v. Columbia Univ. Coll. of

Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).

       We affirm the district court’s judgment because in both her complaint and her

proposed amended complaint plaintiff has failed to adequately allege that she had a good

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faith, reasonable belief that she challenged conduct that constituted gender discrimination.

First, plaintiff’s allegation that she “had a good faith basis to believe that she was being

treated differently on the basis of her sex” is conclusory and therefore insufficient to

satisfy her pleading burden. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

Second, plaintiff’s allegations that can properly be considered factual do not suggest that

she had a reasonable belief that she was a victim of gender discrimination. Plaintiff’s

allegation that on two occasions day positions she requested were given to younger

female employees could not cause a reasonable belief that she was a victim of gender

discrimination.2 Likewise, plaintiff’s allegations that her supervisor “berated” her and

made other harsh comments – for example, that she was a “disappointment” to him –

amount only to general allegations of mistreatment, and do not support an inference that

plaintiff had a reasonable good faith belief that she was subject to gender discrimination.3

Nothing in plaintiff’s motion for leave to amend her complaint offered any prospect of

curing these defects.




       2
        Plaintiff’s original complaint did not specify the gender of the two recipients of
the day positions. However, her amended complaint indicates that the jobs went to
“inexperienced females in her [sic] 20s.”
       3
         We note that plaintiff has made no allegations regarding how her supervisor
treated other employees. An allegation that, for example, her supervisor directed harsh
comments only at female employees might have provided a good faith basis for plaintiff’s
complaint of gender discrimination, but the plaintiff makes no such allegation.

                                              4
      We have considered all of plaintiff’s arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk




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