     18-1540
     Committe v. Yen

                                 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   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   2nd day of April, two thousand nineteen.
 4
 5   Present:          ROSEMARY S. POOLER,
 6                     DENNY CHIN,
 7                           Circuit Judges,
 8                     ERIC N. VITALIANO,1
 9                           District Judge.
10
11   _____________________________________________________
12
13   BRUCE COMMITTE,
14
15                                 Plaintiff-Appellant,
16
17                          v.                                                  18-1540-cv
18
19   DAVID C. YEN, MICHAEL McAVOY, DENO CHARLENE,
20   LISA FLYNN, JOHN AND JANE DOES,
21
22                           Defendants-Appellees.
23   _____________________________________________________
24
25   Appearing for Appellant:      Bruce Committe, pro se, Lakewood, OH.
26




     1
       Judge Eric N. Vitaliano, United States District Court for the Eastern District of New York,
     sitting by designation.
 1   Appearing for Appellees:      Victor Paladino, Laura Etlinger, Assistant Solicitors General, for
 2                                 Letitia James, Attorney General for the State of New York,
 3                                 Albany, N.Y.
 4
 5   Appeal from a judgment of the United States District Court for the Northern District of New
 6   York (D’Agostino, J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
10
11           Plaintiff-Appellant Bruce Committe appeals from the May 7, 2018, judgment of the
12   United States District Court for the Northern District of New York (D’Agostino, J.), dismissing
13   his claims that members of a hiring committee at the State University of New York in Oneonta
14   (“SUNY”) discriminated against him based on his age and disability and violated his First
15   Amendment rights to free speech and academic freedom. The district court also denied
16   Committe’s motions challenging the constitutionality of 28 U.S.C. § 1915 and Judge
17   D’Agostino’s individual procedural rule that pre-motion letters must precede motions. Committe
18   also argues that the magistrate judge was biased against him and should have been recused. We
19   assume the parties’ familiarity with the underlying facts, procedural history, and specification of
20   issues for review.
21
22          We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Forest Park
23   Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012). Assuming
24   without deciding that age and disability discrimination claims are cognizable under Section
25   1983, we must determine if the facts alleged in the complaint “plausibly support[]” the following
26   elements: “that the plaintiff is a member of a protected class, was qualified, suffered an adverse
27   employment action, and has at least minimal support for the proposition that the employer was
28   motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.
29   2015).
30
31           Committe’s complaint does not meet this minimal standard. Committe alleges that both
32   of the candidates that were offered the teaching positions for which he applied were younger and
33   less-qualified than he was. These conclusory allegations do not plausibly support a
34   discrimination claim because Committe has not pled the qualifications for the position, whether
35   his qualifications met those requirements, or whether the other candidates’ qualifications met
36   those requirements. The same fate befalls Committe’s allegation that the hiring committee gave
37   him negative evaluations for his teaching demonstration in order to cover up its discriminatory
38   animus. The negative evaluations that SUNY gave Committe—which we may consider because
39   they are integrated into the complaint, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
40   Cir. 2002)—conveyed legitimate concerns that Committe’s teaching philosophy conflicted with
41   the university’s curriculum and needs and equally legitimate concerns about Committe’s
42   practical skills as a teacher. Committe’s allegation that an elderly SUNY professor had created
43   administrative difficulties by taking medical leave does not support an inference that these
44   legitimate reasons for not offering Committe the position were pretext for discrimination.
45   Committe’s complaint therefore does not plausibly support an inference that Defendants-
46   Appellees are liable for age discrimination.



                                                      2
 1
 2            Committe’s allegation that SUNY violated his First Amendment guarantees of free
 3   speech and academic freedom by requiring him to give a teaching demonstration also fails.
 4   Although we have recognized that the First Amendment protects academic freedom, Burt v.
 5   Gates, 502 F.3d 183, 190 (2d Cir. 2007), a university may nonetheless place parameters on
 6   scholarship when the parameters protect the university’s legitimate interest in ensuring that
 7   teaching candidates can communicate ideas effectively. Cf. Hazelwood Sch. Dist. v. Kuhlmeier,
 8   484 U.S. 260, 273 (1988) (noting that schools may exercise some control over speech in schools
 9   if the school’s actions are “reasonably related to legitimate pedagogical concerns”). Therefore,
10   SUNY did not violate Committe’s First Amendment rights to free speech or academic freedom
11   by requiring him to perform a teaching demonstration as a candidate for a teaching position.
12
13           The district court also properly held that Committe’s failure-to-train claim failed because
14   Committe has not satisfactorily pled that any SUNY employees discriminated against him or
15   violated his First Amendment rights. See Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.
16   1992).
17
18           Lastly, Committe’s miscellaneous challenges to the district court’s procedure are
19   unavailing. First, Committe does not have standing to challenge either Section 1915’s
20   constitutionality or the district judge’s individual practices because Committe has not suffered an
21   injury from the district court’s review of his complaint under Section 1915 or from the district
22   court’s pre-motion letter requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
23   (1992). Committe’s motion to remove the magistrate judge is moot and otherwise fails on the
24   merits because Committe’s allegation that the magistrate was biased was impermissibly
25   premised solely on adverse rulings. Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227
26   (2d Cir. 2009).
27
28           We have considered the remainder of Committe’s arguments and find them to be without
29   merit. Accordingly, the order of the district court hereby is AFFIRMED.
30
31
32                                                        FOR THE COURT:
33                                                        Catherine O’Hagan Wolfe, Clerk
34




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