21-834
`Florence v. Seggos
`
`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.
`
`
`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 7th day of June, two thousand twenty-two.
`
`PRESENT:
`
`
`DENNY CHIN,
`RICHARD J. SULLIVAN,
`JOSEPH F. BIANCO,
`Circuit Judges.
`_____________________________________
`
`DENNIS SCOTT FLORENCE,
`MICHAEL ST. JEANOS,
`
`
`Plaintiffs-Appellants,
`
`v.
`
`
`BASIL SEGGOS, as Commissioner of the New
`York State Department of Environmental
`
`
`
`No. 21-834
`
`
`Florence v. Seggos
`
`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.
`
`
`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 7th day of June, two thousand twenty-two.
`
`PRESENT:
`
`
`DENNY CHIN,
`RICHARD J. SULLIVAN,
`JOSEPH F. BIANCO,
`Circuit Judges.
`_____________________________________
`
`DENNIS SCOTT FLORENCE,
`MICHAEL ST. JEANOS,
`
`
`Plaintiffs-Appellants,
`
`v.
`
`
`BASIL SEGGOS, as Commissioner of the New
`York State Department of Environmental
`
`
`
`No. 21-834
`
`
`
`Conservation, CHRIS BALLANTYNE, Deputy
`Commissioner of the New York State
`Department of Environmental
`Conservation, MARLINE AGNEW, Director of
`Personnel of the State of New York
`Department of Environmental
`Conservation, BERNARD RIVERS, Director of
`Law Enforcement for the New York State
`Department of Environmental
`Conservation, JOHN DOE, intended to refer
`to unidentified members of the Staff of
`Andrew M. Cuomo, Former Governor of
`the State of New York, JANE DOE, intended
`to refer to unidentified members of the
`Staff of Andrew M. Cuomo, Former
`Governor of the State of New York,
`
`
`Defendants-Appellees.∗
`_____________________________________
`FOR PLAINTIFFS-APPELLANTS:
`
`
`FOR DEFENDANTS-APPELLEES:
`
`JAMES B. TUTTLE, The Tuttle
`Law Firm, Clifton Park, NY.
`
`JENNIFER L. CLARK, Assistant
`Solicitor General (Barbara D.
`Underwood, Solicitor General,
`Andrea Oser, Deputy Solicitor
`General, on the brief), for Letitia
`James, Attorney General of the
`State of New York, Albany,
`NY.
`
`
`
`
`
`∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
`2
`
`
`
`
`
`Appeal from a judgment of the United States District Court for the Northern
`
`District of New York (Lawrence E. Kahn, Judge.).
`
`UPON DUE CONSIDERATION,
`
`IT
`
`IS HEREBY ORDERED,
`
`ADJUDGED, AND DECREED that the judgment of the district court is
`
`AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED to
`
`the district court for further proceedings consistent with this summary order.
`
`Plaintiffs-Appellants Dennis Scott Florence and Michael St. Jeanos, two
`
`white men, allege that they were passed over for the position of Director of Law
`
`Enforcement (“DLE”) at the New York State Department of Environmental
`
`Conservation (the “Department”). In December 2017, when then-DLE Joe
`
`Schneider announced his intention to retire in March 2018, the DLE position was
`
`“classified” under the New York State Civil Service Law, a designation indicating
`
`that applicants must pass a test to be eligible for the position. Plaintiffs, who were
`
`both majors in the Department, passed the test; St. Jeanos earned the highest score,
`
`and Florence tied with three others for the second-highest score. When Schneider
`
`retired, however, a permanent successor had not been named, and the Department
`
`appointed Bernard Rivers, a Black man and a captain in the Department who had
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`taken and failed the test, as the Acting DLE. The Department’s stated rationale
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`
`
`
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`3
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`
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`was that giving the “acting” position to someone ineligible for the permanent
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`position would avoid conferring an unfair advantage on any of the eight
`
`applicants who had passed the test.
`
`Over the next several months, however, the Department petitioned the New
`
`York State Civil Service Commission to reclassify the DLE position in order to
`
`open it to applicants other than those who had passed the test. One of the
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`Department’s professed reasons for seeking the change was that it could attract a
`
`more diverse pool of applicants if a test were no longer required. During this
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`period of time, Rivers allegedly confirmed that someone on the staff of then-
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`Governor Andrew Cuomo “was advocating for [him] from an affirmative action
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`standpoint.” J. App’x at 80, ¶ 26. Aside from Rivers’s lower rank and failing test
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`score, Plaintiffs also allege that he was not adequately discharging his duties as
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`Acting DLE and was frequently absent from the office. Nevertheless, the Civil
`
`Service Commission ultimately acceded to the Department’s reclassification
`
`request. Freed from the strictures of the test, the Department interviewed only
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`Rivers and appointed him to the permanent position on November 6, 2018.
`
`Plaintiffs initiated this suit on January 31, 2020, asserting claims for racial
`
`discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
`
`
`
`
`
`4
`
`
`
`§ 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. After Plaintiffs amended their
`
`complaint, Defendants moved to dismiss. Plaintiffs opposed the motion and
`
`sought leave to amend their complaint a second time, attaching a proposed Second
`
`Amended Complaint (“SAC”) that included more specific allegations that
`
`Defendants violated their constitutional rights to equal protection and due process
`
`and asserted causes of action under sections 1981 and 1983, as well as under
`
`Monell v. Department of Social Services, 436 U.S. 658 (1978). They also proposed
`
`adding the Department and the State of New York as defendants. The district
`
`court dismissed Plaintiffs’ complaint in its entirety for failure to state a claim and
`
`further denied leave to amend on the ground that the SAC also failed to state a
`
`claim, making amendment futile. Plaintiffs timely appealed.
`
`On appeal, Plaintiffs argue that the proposed SAC sufficiently states claims
`
`for relief and that the district court therefore erred in denying as futile their request
`
`for leave to amend. We review de novo a district court’s dismissal of a complaint
`
`for failure to state a claim, accepting all well-pleaded factual allegations as true
`
`and drawing all reasonable inferences in Plaintiffs’ favor. See Lynch v. City of New
`
`York, 952 F.3d 67, 74–75 (2d Cir. 2020). While refusal to permit amendment of a
`
`complaint is typically reviewed for abuse of discretion, where, as here, the district
`
`
`
`
`
`5
`
`
`
`court denies permission to amend on the ground that amendment would be futile,
`
`that determination is likewise reviewed de novo. See Hutchison v. Deutsche Bank
`
`Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). Amendment is futile when the proposed
`
`amended complaint would not survive a Rule 12(b)(6) motion to dismiss.
`
`Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
`
`Title VII makes it “an unlawful employment practice . . . to fail or refuse to
`
`hire . . . any individual, or otherwise to discriminate against any individual with
`
`respect to his compensation, terms, conditions, or privileges of employment,
`
`because of such individual’s race, color, religion, sex, or national origin.”
`
`42 U.S.C. § 2000e-2(a). To state a Title VII claim, a plaintiff need only plausibly
`
`allege that race was a “motivating factor” with respect to the adverse employment
`
`decision. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
`
`The district court erred in holding that the SAC failed to state a Title VII
`
`claim. Plaintiffs, who were majors, had superior rank to Rivers, who was a
`
`captain. They also allege that they were assigned to units with greater
`
`responsibilities and that they registered the highest scores on a test designed to
`
`measure aptitude – a test that Rivers failed. As for the Department’s purported
`
`discriminatory motivation, Plaintiffs allege that the Department openly
`
`
`
`
`
`6
`
`
`
`acknowledged that its request to reclassify the DLE position was designed to
`
`bypass the all-white list of test-passing candidates that existed when the DLE
`
`position became vacant. When viewed together, these facts easily suffice to
`
`“provide ‘at least minimal support for the proposition that the employer was
`
`motivated by discriminatory intent.’” Id. at 86–87 (quoting Littlejohn v. City of
`
`New York, 795 F.3d 297, 311 (2d Cir. 2015)).
`
`Defendants try to resist this conclusion in two principal ways. First, they
`
`echo the district court in contending that Plaintiffs’ pleadings are overly reliant on
`
`test scores that were “rendered irrelevant once the [DLE] position was
`
`reclassified” by the Civil Service Commission. Appellees’ Br. at 8. The test’s
`
`continuing relevance, however, is a factual question inappropriate for resolution
`
`on a motion to dismiss. The Department’s abandonment of the test does not
`
`suggest it was a worthless metric of evaluation, or even a bad one. Indeed, given
`
`the significant difference between the test scores of Plaintiffs and Rivers, Rivers’s
`
`poor performance might still be a substantial strike against his hiring even if the
`
`test retained only a modest connection to potential job performance after the DLE
`
`position was reclassified. The district court therefore erred in assuming that the
`
`position’s reclassification rendered the test scores irrelevant to the Title VII
`
`
`
`
`
`7
`
`
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`analysis – at least at this stage of the litigation, when all reasonable inferences are
`
`to be drawn in Plaintiffs’ favor. See Lynch, 952 F.3d at 74–75.
`
`Second, Defendants contend that Rivers was not similarly situated to
`
`Plaintiffs at the time of his appointment to the permanent position because he
`
`already had valuable experience as Acting DLE – an advantage he held over
`
`Plaintiffs, who had no such experience. True, “adverse actions taken against
`
`employees who are not similarly situated cannot establish an inference of
`
`discrimination.” Littlejohn, 795 F.3d at 312. But Plaintiffs allege that Rivers’s
`
`performance as Acting DLE was substandard and that he flouted rules mandating
`
`full-time presence at the Department’s Albany headquarters, where Rivers
`
`sometimes appeared for only twelve hours per week.1 “Whether two employees
`
`are similarly situated ordinarily presents a question of fact for the jury,” and we
`
`decline to hold that Rivers’s seven months of experience as Acting DLE render
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`Defendants immune from this Title VII claim as a matter of law. Graham v. Long
`
`Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). As such, we hold that the district court
`
`
`1 Defendants argue that the requirements of the job changed after it was reclassified. They will,
`of course, be permitted to develop this factual matter on remand, but at the pleading stage, we
`will not draw against Plaintiffs the far-from-obvious inference that reclassifying the position to
`remove the required test also somehow changed the nature of the job to one where frequent in-
`office presence was no longer required.
`
`
`8
`
`
`
`
`
`erred in determining that the SAC insufficiently pleaded a Title VII claim, and we
`
`remand for that claim to proceed against appropriate defendants.
`
`The same cannot be said with respect to Plaintiffs’ other causes of action.
`
`To state a claim under sections 1981 and 1983 – the vehicles for Plaintiffs’ equal
`
`protection and due process claims – the complaint must plausibly allege
`
`Defendants’ “personal involvement” in the wrongful acts at issue. Patterson v.
`
`County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004). The SAC clearly fails to meet
`
`this standard, as it conclusorily – and vaguely – pleads merely that “Defendants”
`
`committed the various allegedly wrongful acts at issue in this case. Indeed,
`
`Defendant Agnew’s name appears nowhere in the SAC other than the paragraph
`
`that names her as a defendant. Plaintiffs more or less admit to their vague
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`pleadings on this score, saying they “know[] very little about what transpired.”
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`Appellants’ Opening Br. at 36. Accordingly, the district court properly dismissed
`
`Plaintiffs’ claims against the individual defendants under sections 1981 and 1983
`
`for failing to allege any defendant’s personal involvement.
`
`Plaintiffs’ Monell claim fails for a similarly fundamental pleading deficiency.
`
`Monell limits its reach “to local government units which are not considered part of
`
`the State for Eleventh Amendment purposes.” Monell v. Dep’t of Soc. Servs., 436
`
`
`
`
`
`9
`
`
`
`U.S. 658, 690 n.54 (1978); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
`
`(1989) (“[N]either a State nor its officials acting in their official capacities are
`
`‘persons’ under [section] 1983.”). Because Plaintiffs name only individuals and
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`state entities as defendants in the SAC, the district court properly held that there
`
`could be no Monell liability here.
`
`Finally, Plaintiffs argue that, to the extent the SAC was deficient, they were
`
`entitled to an opportunity to replead. We disagree. A court may dismiss with
`
`prejudice if there is no “indication that [a plaintiff] could – or would – provide
`
`additional allegations” to support a plausible claim. Gallop v. Cheney, 642 F.3d
`
`364, 369 (2d Cir. 2011). Here, there is no indication that Plaintiffs could provide
`
`any additional allegations to salvage the otherwise deficient section 1981,
`
`section 1983, and Monell claims. The only additional allegations mentioned on
`
`appeal pertain to the Title VII claims, which we held were already sufficiently
`
`pleaded in the SAC. Plaintiffs do not even attempt to argue that they could plead
`
`facts remedying the deficiencies we have identified with respect to their other
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`claims. We therefore see no error in the district court’s denial of Plaintiffs’ request
`
`to replead yet again.
`
`
`
`
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`10
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`
`
`
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`Accordingly, we AFFIRM IN PART and VACATE IN PART the judgment
`
`of the district court, and the case is REMANDED for further proceedings
`
`consistent with this summary order.
`
`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
`
`
`
`
`
`11
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`
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