     14-3149-cv
     Green v. District Council 1707

                                  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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 17th day of April, two thousand fifteen.
 4
 5           PRESENT: DENNIS JACOBS,
 6                            RAYMOND J. LOHIER, JR.,
 7                                    Circuit Judges,
 8                            PAMELA K. CHEN,
 9                                    District Judge.*
10           ------------------------------------------------------------------
11
12           MICHAEL GREEN,
13
14                                            Plaintiff-Appellant,
15
16                                    v.                                          No. 14-3149-cv
17
18           DISTRICT COUNCIL 1707, AMERICAN
19           FEDERATION OF STATE, COUNTY & MUNICIPAL
20           EMPLOYEES, AFL-CIO, and RAGLAN GEORGE, JR.,
21           individually,
22
23                                            Defendants-Appellees.
24           ------------------------------------------------------------------
25
26           FOR APPELLANT:                   MARGARET MCINTYRE, New York, NY.
27



     *
      The Honorable Pamela K. Chen, United States District Court for the Eastern District of
     New York, sitting by designation.
 1          FOR APPELLEES:              LARRY CARY, Cary Kane LLP, New York, NY, for
 2                                      District Council 1707, American Federation of State,
 3                                      County & Municipal Employees, AFL-CIO.
 4
 5                                      Harvey Steven Mars, New York, NY, for Raglan George,
 6                                      Jr.
 7
 8          Appeal from a judgment of the United States District Court for the Southern District
 9   of New York (Paul A. Engelmayer, Judge).
10          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11   DECREED that the judgment of the District Court is AFFIRMED IN PART and
12   VACATED IN PART, and the case is REMANDED.
13          Michael Green appeals from a judgment of the District Court dismissing his amended
14   complaint for failure to state a claim of race or ancestry discrimination pursuant to 42
15   U.S.C. § 1981 and declining to exercise supplemental jurisdiction over Green’s pendent
16   state law claims. We assume the parties’ familiarity with the facts and record of the prior
17   proceedings, to which we refer only as necessary to explain our decision to affirm in part
18   and vacate in part.
19          To survive a motion to dismiss, “a discrimination complaint need not allege facts
20   establishing each element of a prima facie case of discrimination,” but it “must at a
21   minimum assert nonconclusory factual matter sufficient to nudge[ ] [its] claims . . . across
22   the line from conceivable to plausible. ” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247,
23   254 (2d Cir. 2014) (alterations in original) (quotation marks omitted).
24          The defendants argue that the allegations in Green’s amended complaint fail to give
25   rise to an inference of race discrimination. We disagree with respect to Green’s claims
26   based on his termination and the denial of severance. Green has stated a claim of race
27   discrimination under § 1981 because he plausibly alleged, among other things, that his
28   supervisor consistently treated African American and Latino employees better than similarly
29   situated Caucasian employees and that he was replaced by an African American. See id. In

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 1   the alternative, the defendants argue that the District Court was right to dismiss the amended
 2   complaint because it pointed to legitimate, nondiscriminatory reasons for Green’s
 3   termination. But “[w]hether there existed non-pretextual, non-discriminatory explanations
 4   for the defendants’ employment decisions . . . is not properly decided on a motion to dismiss
 5   for failure to state a claim.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir.
 6   2014). We therefore vacate the judgment of the District Court insofar as it dismissed
 7   Green’s claims for race discrimination under § 1981 with respect to Green’s claims based on
 8   his termination and the denial of severance.
 9          However, the dismissal of Green’s claim of racial discrimination based on the
10   defendants’ alleged failure to pay him for unused vacation time is affirmed. In contrast to
11   Green’s allegations regarding his termination and the denial of severance, Green offers only
12   conclusory statements that the alleged denial of vacation pay was racially motivated.
13          Turning to the District Court’s dismissal of Green’s claims for ancestry
14   discrimination under § 1981, we affirm. The amended complaint contains no allegations
15   that Green suffered any adverse action on the basis of his ancestry, nor does it identify the
16   ancestry or religious backgrounds of any of the purported comparators whom Green asserts
17   received more favorable treatment.
18          Because Green has stated a federal cause of action, we also vacate the judgment of
19   the District Court insofar as it declined to exercise supplemental jurisdiction over Green’s
20   pendent state law claims. On remand, we leave it to the District Court to decide whether to
21   exercise supplemental jurisdiction over these claims.
22          We have considered Green’s remaining arguments and conclude that they are without
23   merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED IN
24   PART and VACATED IN PART, and the case is REMANDED.
25                                             FOR THE COURT:
26                                             Catherine O’Hagan Wolfe, Clerk of Court


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