Brown v. City of New York

14-4450-cv

Brown v. City of New York

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

17th day of November, two thousand and fifteen.

Present:

PIERRE N. LEVAL,

PETER W. HALL,

GERARD E. LYNCH,

Circuit Judges.

____________________________________________________

SHEILA BROWN,

Plaintiff-Appellant,

v. No. 14-4450-cv

THE CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF

SOCIAL SERVICES – HUMAN RESOURCES ADMINISTRATION,

Defendants-Appellees,

____________________________________________________

For Plaintiff-Appellant: Stewart Lee Carlin, The Law Offices of Stewart Lee Carlin, P.C.,

New York, New York, for Plaintiff-Appellant Sheila Brown.

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For Defendant-Appellee: Emma Grunberg (Richard Dearing, on the brief), for Zachary

Carter, Corporation Counsel of the City of New York, New York,

for Defendants-Appellees City of New York and New York City

Department of Social Services – Human Resources Administration.

____________________________________________________

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

New York (Engelmayer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

This case is part of a long-running dispute involving Plaintiff-Appellant Sheila Brown’s

allegations of employment discrimination against her employer, New York City (the “City”) and

the Human Resources Administration, Department of Social Services (the “HRA”). Acting pro

se, Brown brought claims of sex discrimination and retaliation under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), New York State Human Rights Law,

N.Y. Exec. Law §§ 290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.

Admin. Code §§ 8-101 et seq. (“NYCHRL”). The district court dismissed Brown’s claims and

denied her leave to file a second amended complaint which only raises the issue of retaliation.

The court later denied Brown’s counseled motion to reconsider its prior orders. We assume the

parties’ familiarity with the facts, procedural history, and issues on appeal.

We review a district court’s denial of a motion for reconsideration for abuse of discretion.

RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) (per curiam).

“Generally, motions for reconsideration are not granted unless the moving party can point to

controlling decisions or data that the court overlooked—matters, in other words, that might

reasonably be expected to alter the conclusion reached by the court.” In re BDC 56 LLC, 330

F.3d 111, 123 (2d Cir. 2003) (internal quotation marks omitted). Such a motion is “neither an

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occasion for repeating old arguments previously rejected nor an opportunity for making new

arguments that could have been previously advanced.” Assoc. Press v. U.S. Dep’t of Def., 395 F.

Supp. 2d 17, 19 (S.D.N.Y. 2005).

Here, Brown’s motion did not provide any additional facts or legal arguments that the

court had initially overlooked. The proposed second amended complaint, crafted with the

benefit of counsel, fared no better than its pro se counterparts in alleging facts plausibly to

support “the reduced requirements” that arise in the initial phase of a Title VII action. Littlejohn

v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). 1 Among other issues, the second

amended complaint failed to allege any facts supporting an inference that Brown’s employer had

a retaliatory motivation. Brown argues that the temporal proximity between her protected

activities and the allegedly adverse employment actions taken against her was sufficient to infer

causation. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010) (“Close temporal

proximity between the plaintiff’s protected action and the employer’s adverse employment

action may in itself be sufficient to establish the requisite causal connection between a protected

activity and retaliatory action.”). The time lapses between Brown’s protected activities and the

alleged retaliatory acts—ranging from two months to several years—were simply too attenuated

to establish that the alleged adverse employment actions were the product of a retaliatory motive

absent other supporting factual allegations. See Williams v. City of New York, No. 11 Civ. 9679

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At the time of its decision, the court did not have the benefit of the Second Circuit’s

decision in Littlejohn, which clarified the pleading requirements for Title VII claims. 795 F.3d at

311. There, we held that to survive a motion to dismiss, a retaliation plaintiff must plead facts

sufficient, if taken as true, to establish “(1) participation in a protected activity; (2) that the

defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal

connection between the protected activity and the adverse employment action.” Id. at 315–16.

Regardless, the complaint did not allege facts that would even “indirectly establish causation,”

id. at 319, and was properly subject to dismissal for failure to state a claim.

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(CM), 2012 WL 3245448, at *11 (S.D.N.Y Aug. 8, 2012) (“The passage of even two or three

months is sufficient to negate any inference of causation when no other basis to infer retaliation

is alleged.”); Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007)

(noting that courts “have consistently held that the passage of two to three months between the

protected activity and the adverse employment action does not allow for an inference of

causation”).

Granting leave to file a second amended complaint, therefore, would have been futile—

not because Brown lacked the “legal acumen,” Brief for Appellant at 9, to formulate a

complaint—but because the facts alleged in the second amended complaint did not state a

colorable claim. See A.V. by Versace, Inc. v. Gianni Versace S.P.A., 87 F. Supp. 2d 281, 298

(S.D.N.Y. 2000) (stating that “if the proposed amended complaint would be subject to

‘immediate dismissal’ for failure to state a claim or on some other ground, the Court will not

permit the amendment”) (quoting Jones v. New York State Div. of Military & Naval Affairs, 166

F.3d 45, 55 (2d Cir. 1999)).

For these reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

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