H.B., Individually and o/b/o B.B., T.B., Individually and o/b/o B.B., Plaintiffs-Appellants, v. BYRAM HILLS CENTRAL SCHOOL DISTRICT, New York State Department of Education, Maryellen Elia, In Her Representative Role as Commissioner of Education for the New York State Education Department, Defendants-Appellees.
No. 15-2579.
United States Court of Appeals, Second Circuit.
May 6, 2016.
648 F. App‘x 122
The district court properly granted summary judgment to the defendants. For the reasons already discussed, Alexander failed to establish a prima face case of FMLA retaliation. See Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 137 (2d Cir.2012) (explaining that to establish a prima facie case of FMLA retaliation, a plaintiff must establish, among other things, that “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent” (internal quotation marks omitted)). Even assuming that Alexander established a prima facie case, however, the defendants demonstrated a legitimate non-discriminatory reason for her termination. Other than the conclusory allegations in Alexander‘s complaint, she did not identify any evidence to show that the proffered explanation was pretextual. See Salahuddin, 467 F.3d at 273 (“Like the movant, the nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment.“). Nor does she identify inconsistencies or implausibilities in that proffered reason. See Zann Kwan, 737 F.3d at 846 (observing that “[a] plaintiff may prove ... retaliation by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer‘s proffered legitimate, nonretaliatory reasons for its action“). Despite the alleged remarks by Cotter and Marchese, we reiterate that no adverse action was taken against Alexander until an investigation revealed that she had misused her leave. Considered in light of this intervening event, such isolated remarks are insufficient to carry Alexander‘s burden at the summary judgment stage. See Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir.2003) (“The mere existence of a scintilla of evidence in support of the [non-movant‘s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].“); cf. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (“Stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination.“).
We have considered all of Appellant‘s arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.
Andrea Green, Bond Schoeneck & King PLLC, New York, NY, for Byram Hills Central School District.
Mark H. Shawhan, Assistant Solicitor General (Anisha S. Dasgupta, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, for State Appellees.
SUMMARY ORDER
Appellants appeal from a final judgment dismissing their action brought under the Individuals with Disabilities Education Act (“IDEA“),
The IDEA “provides that potential plaintiffs with grievances related to the education of disabled children generally must exhaust their administrative remedies before filing suit in federal court.” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481 (2d Cir.2002); J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir.2004) (“It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court.“). The exhaustion requirement, however, “does not apply in situations in which exhaustion would be futile because administrative procedures do not provide adequate remedies.” Polera, 288 F.3d at 488. In Polera, we observed that “the exhaustion requirement is predicated on Congress‘s belief ... that the agencies themselves are in the optimal position to identify and correct their errors and to fine-tune the design of their programs.” Id. at 490; see also Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir.1992) (observing that the exhaustion requirement “prevents courts from undermining the administrative process and permits an agency to bring its expertise to bear on a problem as well as to correct its own mistakes“). Appellants “bear the burden of proof that exhaustion would be futile.” J.S., 386 F.3d at 112.
Appellants contend that exhaustion was futile because of the significant delays they experienced awaiting decision from an impartial hearing officer (“IHO“). While we acknowledge the lengthy delay, the fact remains that on August 20, 2014, Appellants and the Byram Hills School District (“the District“) both agreed to extend the deadline for a decision by the IHO until October 6, 2014, so that the newly-appointed IHO would have time to review the record. Only two days after agreeing to this deadline, however, Appellants filed this lawsuit. While we have acknowledged that exhaustion may be futile if “administrative bodies persistently fail to render expeditious decisions as to a child‘s education placement,” Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991), as of the date this suit was filed, the wheels had been set in motion to resolve the delay that had occurred and to render a decision in the coming weeks. Moreover, the mutually agreed upon October deadline strongly suggested that a decision was imminent and that exhaustion, at least at that stage of proceedings, was not futile. Indeed, the IHO rendered a decision on October 15, 2014, less than two weeks after the agreed deadline. Under these circumstances, we agree with the district court that Appellants did not meet their burden to show that exhaustion would have been futile. See J.S., 386 F.3d at 112.
In the proceedings below, Appellants sought declarations that, among other things, the New York State Education Department and the District did not comply with governing regulations and that they waived jurisdiction to render a decision. Appellants also requested an injunction precluding non-lawyer IHOs from hearing cases on whether a student has received a free appropriate public education. They now challenge the district court‘s decisions that they lacked standing to seek declaratory and injunctive relief. We agree with the district court.
Appellants have not shown a sufficient likelihood that they will request another hearing before an IHO and that the IHO will fail to issue a timely decision.1 Indeed, the delay here is unlikely to recur because it was caused by a unique set of circumstances: an IHO‘s medical condition and the recusal of subsequent IHOs. It also bears noting that the IHO who caused the initial delay is no longer certified to be an IHO. In sum, Appellants cannot demonstrate a “certainly impending future injury.” Marcavage, 689 F.3d at 103 (internal quotation marks omitted). Moreover, the requested declaratory relief is aimed at past conduct, a target that is impermissible. See Ward v. Thomas, 207 F.3d 114, 120 (2d Cir.2000) (declaratory relief unavailable because “[a]ny declaration could say no more than that [the state] had violated federal law in the past“); Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 (1st Cir.2013) (“With limited exceptions, not present here, issuance of a declaratory judgment deeming past conduct illegal is also not permissible as it would be merely advisory.“).
As acknowledged by counsel at oral argument, Appellants’ challenge to the denial of their request to amend their complaint is moot. The newly filed action in district court asserts the claims they sought to plead in their amended complaint. See H.B. and T.B., No. 15-cv-5742 (S.D.N.Y. filed July 22, 2015).
We have considered all of Appellants’ arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.