Malone v. New York Pressman's Union Number 2 ( 2011 )

11-2599
Malone v. New York Pressman’s Union Number 2
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of December, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
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13 JEROME WATSON, SAMMY NG, ERIC
14 BROOKINGTON, ROBERT ABREU, MARCO
15 GONZALEZ,
16 Plaintiffs,
17
18 WILLIE MALONE, DESIREE WILSON, EVA
19 LEE, OLIVIA WILSON, SHERRE WILSON,
20 ANGEL HERNANDEZ, NYTRICHA SMITH,
21 DANIEL PAULINO,
22 Plaintiffs-Appellants,
23
24 -v.- 11-2599
25
26 NEW YORK PRESSMAN’S UNION NUMBER 2,
27 NYP HOLDINGS INC.,
28 Defendants-Appellees.
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2
3 FOR APPELLANTS: Roosevelt T. Seymour, Brooklyn,
4 New York.
5
6 FOR APPELLEES: Carl J. Levine, Daniel
7 Engelstein, Levy Ratner, P.C.,
8 New York, New York (Counsel for
9 New York Pressman’s Union Number
10 2);
11
12 Michael Starr, Katherine Healy
13 Marques, Holland & Knight LLP,
14 New York, New York (Counsel for
15 NYP Holdings Inc.).
16
17 Appeal from a judgment of the United States District
18 Court for the Southern District of New York (Swain, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED.
23
24
25 Plaintiffs brought discrimination complaints against
26 their employer, the New York Post (“Post”), and union, the
27 New York Pressman’s Union Number 2 (collectively,
28 “Defendants”), alleging: disparate impact discrimination
29 based on race and sex in violation of Title VII of the Civil
30 Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);
31 intentional discrimination based on race and sex in
32 violation of Title VII; and intentional discrimination based
33 on race in violation of Section 1981 of the Civil Rights Act
34 of 1866, 42 U.S.C. § 1981. We assume the parties’
35 familiarity with the underlying facts, the procedural
36 history, and the issues presented for review.
37
38 The United States District Court for the Southern
39 District of New York (Swain, J.) dismissed the complaint
40 pursuant to Rule 12(b)(6) of the Federal Rules of Civil
41 Procedure. “[W]e review the grant of a Rule 12(b)(6) motion
42 to dismiss de novo, ‘construing the complaint liberally,
43 accepting all factual allegations in the complaint as true,
44 and drawing all reasonable inferences in the plaintiff’s
45 favor.’” Chase Grp. Alliance LLC v. City of New York Dep’t
46 of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (quoting Chambers
47 v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)).
2
1 “To survive a motion to dismiss, a complaint must
2 contain sufficient factual matter, accepted as true, to
3 ‘state a claim to relief that is plausible on its face.’”
4 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
5 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
6 570 (2007)).
7
8 [1] Disparate Impact Claim. “The basis for a
9 successful disparate impact claim involves a comparison
10 between two groups--those affected and those unaffected by
11 the facially neutral policy. This comparison must reveal
12 that although neutral, the policy in question imposes a
13 significantly adverse or disproportionate impact on a
14 protected group of individuals.” Tsombanidis v. W. Haven
15 Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003). “[P]laintiffs
16 must . . . utilize the appropriate comparison groups. They
17 must first identify members of a protected group that are
18 affected by the neutral policy and then identify similarly
19 situated persons who are unaffected by the policy.” Id. at
20 576-77.
21
22 In alleging that Defendants’ agreement to transfer
23 employees from the Daily News to the Post had a disparate
24 impact, Plaintiffs compare the effects on women and minority
25 employees with the effects on white male employees. These
26 groups are not similarly situated: Women and minorities made
27 up a smaller proportion of the Journeyman classification
28 than they did of the Junior Pressman and Casual
29 classifications. The effects of the transfer--in which
30 transferees were placed at the bottom of the Journeyman
31 shift priority list, giving them seniority over all Junior
32 Pressmen and Casuals--are therefore a function of the pre-
33 existing demographics of the workplace. Plaintiffs do not
34 dispute that all Junior Pressmen and Casuals--regardless of
35 race or gender--were impacted by the transfer equally.
36
37 Plaintiffs’ argument that the transfer “locks in” the
38 effects of alleged past discrimination does not amount to a
39 disparate impact claim. See Wards Cove Packing Co. v.
40 Atonio, 490 U.S. 642, 656-57, superseded by statute on other
41 grounds, 42 U.S.C. § 2000e-2(k); cf. United States v.
42 Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971)
43 (invalidating a seniority system as relief for admitted past
44 discrimination).
45
46 [2] Intentional Discrimination Claims. Plaintiffs’
47 allegations that Defendants acted with the intent to
3
1 discriminate “are no more than conclusions,” and, as such,
2 “are not entitled to the assumption of truth.” See Iqbal,
3 129 S. Ct. at 1950. Plaintiffs’ only relevant factual
4 allegations are that Defendants transferred Journeymen to
5 the Post and took other actions that made it more difficult
6 for Casuals and Junior Pressmen to advance with “intent to
7 discriminate.” These are nothing more than “unadorned, the-
8 defendant-unlawfully-harmed-me accusation[s].” See Iqbal,
9 129 S. Ct. at 1949. Therefore, Plaintiffs’ intentional
10 discrimination argument fails.
11
12
13 Finding no merit in Plaintiffs’ remaining arguments, we
14 hereby AFFIRM the judgment of the district court.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
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