Carris v. First Student, Inc.Carris v. First Student, Inc.
Finally, defendants’ argument that the inconsistency represents an unwaivable “fundamental error” fails because we apply that standard only to purported errors in jury instructions or verdict sheets, as to which defendants here raise no objection. See, e.g., Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002).
Accordingly, we affirm the district court’s denial of a new trial on compromise-verdict grounds.
4. Prejudgment Interest
On cross-appeal, the Trustee argues for the first time that the district court erred in failing to use Delaware law to calculate prejudgment interest on the breach of fiduciary duty claims. While the Trustee initially provided calculations under both New York and Delaware law, its memorandum in support of prejudgment interest requested only that it be “awarded consistent with the provisions of New York law applicable . . . and that judgment be entered on the jury’s verdict including interest at the New York statutory rate of 9% per annum.” App’x 794 (emphasis added). In setting a rate of 6%, the district court stated that “Plaintiff’s request to apply only New York law obviates the need to conduct further analysis under Delaware law” and that, “[i]f New York law is less generous than Delaware law, then Plaintiff has voluntarily chosen to forego additional prejudgment interest to which he may be entitled.” Id. at 870 & n.1. We identify no error in this waiver determination, see Olin Corp. v. Am. Home Assur. Co., 704 F.3d 89, 98 (2d Cir. 2012) (recognizing waiver reviewed for abuse of discretion), a conclusion reinforced by the Trustee’s failure to contest that determination in its motion for reconsideration. Accordingly, we affirm the district court’s award of prejudgment interest.
5. Conclusion
We have considered the parties’ remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the September 25, 2015 judgment of the district court.
FOR APPELLEE: Ivan Ross Novich, Littler Mendelson, P.C., Newark, NJ.
PRESENT: ROBERT A. KATZMANN, Chief Judge, GERARD E. LYNCH, DENNY CHIN, Circuit Judges.
SUMMARY ORDER
Appellant Margo Carris, proceeding pro se, appeals from the judgment entered by the United States District Court for the Northern District of New York (Suddaby, C.J.) on September 18, 2015, dismissing Carris’s complaint and denying her leave to amend the complaint. In her complaint, Carris alleged, inter alia, that her former employer, First Student, Inc., fired her based on her race in violation of Title VII of the Civil Rights Act of 1964,
We review de novo a district court’s dismissal of a complaint for failure to state a claim, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reason-
To survive a motion to dismiss, a Title VII plaintiff does not have to plead a full prima facie case pursuant to the first stage of the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); she “need only give plausible support to a minimal inference of discriminatory motivation.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). To support a minimal inference of discrimination, a plaintiff may allege disparate treatment by showing “the more favorable treatment of employees not in the protected group,” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)), who are “similarly situated in all material respects.” Brown v. Daikin Am. Inc., 756 F.3d 230, 230 (2d Cir. 2014) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Whether the plaintiff and these comparator employees are similarly situated in “‘all material respects’ will vary from case to case,” and while “[t]he plaintiff’s and comparator’s circumstances must bear a ‘reasonably close resemblance,’” they “need not be ‘identical.’” Brown, 756 F.3d at 230 (quoting Graham, 230 F.3d at 40). For a disparate treatment claim based on an employer’s imposition of lighter discipline for comparators’ misconduct, the determination whether the comparators’ offenses were of “comparable seriousness requires—in addition to an examination of the acts—an examination of the context and surrounding circumstances in which those acts are evaluated.” Graham, 230 F.3d at 40. “Ordinarily, ‘[w]hether two employees are similarly situated . . . presents a question of fact,’ rather than a legal question to be resolved on a motion to dismiss.” Brown, 756 F.3d at 230 (quoting Graham, 230 F.3d at 39); see also Graham, 230 F.3d at 42-44 (reversing summary judgment where the plaintiff offered sufficient evidence for a reasonable jury to find that comparators received lighter punishment for comparably serious violations of the same disciplinary standards).
Here, Carris alleged facts that plausibly gave rise to an inference of discrimination: she claimed that she was terminated for violating a company policy concerning student confidentiality although three white bus drivers, who violated policies concerning student safety, were only placed on administrative leave. See Compl. ¶¶ 14-16. Depending on the results of discovery, “an examination of the context and surrounding circumstances in which [the employees’] acts are evaluated,” Graham, 230 F.3d at 40, could reasonably yield the conclusion that the three comparator bus drivers’ violations were comparably serious to that of Carris. See id. at 39-40; see also Brown, 756 F.3d at 230-31. The comparators’ conduct, based on the allegations of the complaint, appeared to jeopardize student safety. Two of the white bus drivers left sleeping children on buses, and one of these drivers, upon realizing that the children were still on the bus, “rushed back into the driver seat and proceeded to exit the yard without reporting it to safety.” Compl. ¶¶ 15-16. The other comparator bus driver deposited a kindergarten student at an unauthorized stop in the dark, leaving the child at least six minutes away by foot from his home. See id. ¶ 14.
However, we affirm the district court’s dismissal of Carris’s state law claim. We review de novo dismissals for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Cayuga Nation v. Tanner, 824 F.3d 321, 327 (2d Cir. 2016). A plaintiff cannot bring a claim in federal court under N.Y. Exec. Law § 296 if she has already pursued that claim with the New York State Division of Human Rights (“NYSDHR”). See Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. 2013); N.Y. Exec. Law § 297(9) (setting out election of remedies). Here, the district court properly dismissed Carris’s state law claim: she filed a complaint with the NYSDHR, which that body dismissed for lack of probable cause.
We have considered Carris’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED as to its dismissal of Carris’s claim under New York Executive Law § 296 and its denial of leave to amend the complaint,2 and VACATED as to its dismissal of Carris’s Title VII claim. The case is REMANDED for further proceedings.