11-1894-cv
Malcolm v. Honeoye Falls Lima Cent. Sch. Dist.


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

  PRESENT:
            JOSEPH M. McLAUGHLIN,
            ROBERT D. SACK,
            GERARD E. LYNCH,
                 Circuit Judges.
  __________________________________________

  BERNICE MALCOLM,

                              Plaintiff-Appellant,

                     v.                                         No. 11-1894-cv


  HONEOYE FALLS LIMA CENTRAL SCHOOL
  DISTRICT,

                 Defendant-Appellee.
  _________________________________________

  FOR PLAINTIFF-APPELLANT:                       Bernice Malcolm, pro se, West
                                                 Henrietta, New York.

  FOR DEFENDANT-APPELLEE:                        Michael P. McClaren, Kevin T. O’Brien,
                                                 Webster Szanyi LLP, Buffalo, New York.
     Appeal from a 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 be AFFIRMED.

     Plaintiff-Appellant Bernice Malcolm brought this action against

her former employer, Defendant-Appellee Honeoye Falls Lima Central

School District (“Honeoye”).   In a prior appeal, we affirmed the

district court’s dismissal of nearly all of Malcolm’s discrimination

and breach of contract claims, but ordered a limited remand solely

to allow the district court to consider her allegation that Honeoye

had “terminated replacement health insurance benefits that she was

eligible to receive under the Consolidated Omnibus Budget

Reconciliation Act of 1985 (‘COBRA’), while permitting other

similarly situated white applicants to retain those benefits.”

Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 399 F. App’x 680,

681-82 (2d Cir. 2010) (internal citation omitted).   Malcolm, pro se,

now appeals from the district court’s subsequent judgment dismissing

her claims of discrimination and retaliation regarding COBRA,

brought pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983, and denying

her motions for reconsideration and for leave to amend her amended

complaint.   We assume the parties’ familiarity with the facts,

proceedings below, and the issues on appeal.




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     We review de novo a district court’s 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.      See

Chambers v. Time Warner, Inc., 

, 152 (2d Cir. 2002).         To

survive a motion to dismiss under Rule 12(b)(6), the complaint must

plead “enough facts to state a claim to relief that is plausible on

its face.”   Bell Atl. Corp. v. Twombly, 

, 570 (2007).

In addition, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions.”     Ashcroft v. Iqbal, 

, 678 (2009).

     We affirm the district court’s judgment because Malcolm has

“failed to allege even the basic elements” of a discrimination or

retaliation claim.     Patane v. Clark, 

, 112 n.3 (2d Cir.

2007).

     First, Malcolm failed to sufficiently allege a claim of racial

discrimination.    To state a claim of discrimination under Title VII,

a plaintiff must allege, inter alia, that she suffered an adverse

employment action.     See Ruiz v. County of Rockland, 

,

491-92 (2d Cir. 2010).    A plaintiff sustains an adverse employment

action if she endures a “materially adverse change” in the terms and

conditions of employment.     See Galabya v. NYC Bd. of Educ., 

, 640 (2d Cir. 2000) (internal quotation marks omitted).      To be

“materially adverse,” a change in working conditions “might be

indicated by a termination of employment, . . . a material loss of

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benefits, . . . or other indices . . . unique to a particular

situation,” and must be “more disruptive than a mere inconvenience

or an alteration of job responsibilities.”     

omitted).   Further, “[w]hen considering whether a plaintiff

has raised an inference of discrimination by showing that she was

subjected to disparate treatment . . . the plaintiff must show she

was similarly situated in all material respects to the individuals

with whom she seeks to compare herself.”     Graham v. Long Island

R.R., 

, 39 (2d Cir. 2000) (internal quotation marks

omitted).   The same requirements for a showing of disparate

treatment apply to race discrimination claims under § 1983.     See

Brown v. City of Oneonta, 

, 336-37 (2d Cir. 2000).

     Here, despite Malcolm’s claims that Honeoye “discontinued” and

“canceled” her COBRA coverage, her own submissions and the documents

she provided in support of her claims demonstrate that she suffered

no lapse in her COBRA coverage and successfully secured COBRA

benefits on August 18, 2008.   Indeed, the same documents show that

any risk that she would lose coverage was caused by her own failure

to submit the required enrollment form.

     Second, Malcolm’s claim that she was retaliated against for

engaging in a protected activity fails because, as explained above,

Malcolm’s COBRA benefits were not terminated.     See Tepperwien v.

Entergy Nuclear Operations, Inc., 

, 568 n.6 (2d Cir.

2011) (noting that a “materially adverse employment action” is a



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required element in a Title VII retaliation action).   Any alleged

delays attributable to Honeoye in processing Malcolm’s COBRA

benefits were immaterial because such delays would not “deter a

reasonable worker in the plaintiff’s position from exercising [her]

legal rights.”   Millea v. Metro-North R.R. Co., 

, 163

(2d Cir. 2011) (internal quotation marks omitted).

     Finally, the district court did not abuse its discretion in

denying Malcolm’s motion to amend her amended complaint.    See Starr

v. Sony BMG Music Entm’t, 

, 321 (2d Cir.2010) (motions

for leave to amend are reviewed for abuse of discretion).   Amendment

in this case would be futile because the absence of a lapse in COBRA

coverage precludes Malcolm from successfully stating a

discrimination or retaliation claim concerning that coverage.     See

Ellis v. Chao, 

, 127 (2d Cir. 2003).

     We have considered Malcolm’s other arguments on appeal and have

found them to be without merit.   Because the district court on

remand was limited to considering solely claims relating to alleged

discontinuation of Malcolm’s COBRA benefits, Malcolm’s arguments

relating to previously-dismissed claims are barred by our prior

decision.   Accordingly, the judgment of the district court is hereby

AFFIRMED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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