19-2409

Malcolm v. Rochester City School District

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 12th day of November, two thousand twenty.

PRESENT:

ROBERT D. SACK,

ROBERT A. KATZMANN,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

Bernice Malcolm,

Plaintiff-Appellant,

v. 19-2409

Rochester City School District, Barbara DeaneWilliams, Superintendent of Schools, Individually, 

Sandra Simpson, Chief of Specialized Services and 

former Interim Director of Specialized Services, 

Individually, Mary Pauly, Executive Director of 

Specialized Services, Individually, Theresa 

(“Teresa”) Root, Zone Director of Specialized 

Services, Individually,

Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: Bernice Malcolm, pro se,

West Henrietta, NY.

FOR DEFENDANTS-APPELLEES: Alison Moyer, Rochester 

City School District, 

Rochester, NY.
2

Appeal from a judgment of the United States District Court for the Western District of New 

York (Larimer, J.).

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

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Bernice Malcolm, proceeding pro se, appeals the district court’s judgment 

dismissing her discrimination complaint against Rochester City School District (“RCSD”) and 

several RCSD officials: Barbara Deane-Williams, Superintendent of RCSD schools; Sandra 

Simpson, Chief of Specialized Services and Former Interim Director of Specialized Services; Mary 

Pauly, Executive Director of Specialized Services; and Theresa (“Teresa”) Root, Zone Director of 

Specialized Services. In December 2017, Ms. Malcolm filed two nearly identical complaints in 

district court, initiating: (1) an action against RCSD, Deane-Williams, Ms. Malcolm’s union, and 

union officials, which the district court designated Malcolm I, and (2) the present action, which 

the district court designated Malcolm II. Ms. Malcolm also filed a third complaint against RCSD 

and Deane-Williams in June 2018, initiating a lawsuit that the district court designated Malcolm 

III. The defendants moved to dismiss all three complaints and, on the same day in July 2019, the 

district court dismissed the actions with prejudice and without leave to amend. The issue in this 

appeal is whether the district court properly dismissed Malcolm II. We assume the parties’ 

familiarity with the underlying facts, and for the following reasons, we affirm. 

First, we conclude that the district court correctly dismissed all of Ms. Malcolm’s claims 

against RCSD and Deane-Williams in Malcolm II as duplicative of Malcolm I. We review this 

decision for abuse of discretion. Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000).1 It is 

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, 

emphases, footnotes, and citations are omitted.
3

well established that “plaintiffs have no right to maintain two actions on the same subject in the 

same court, against the same defendant[s] at the same time,” and so “a district court may stay or 

dismiss a suit that is duplicative of another federal court suit.” Id. at 138–39. Malcolm I and 

Malcolm II were filed within one day of each other in the same court and contained identical 

allegations and claims against RCSD and Deane-Williams. Thus, the district court had the 

authority to dismiss Malcolm II as duplicative.

Second, we affirm the district court’s dismissal of all claims against Simpson, Pauly, and 

Root. The district court dismissed these causes of action for failure to state a claim, a decision 

which we review de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 

Because “we may affirm on any grounds for which there is a record sufficient to permit conclusions 

of law, including grounds not relied upon by the district court,” Lanning v. City of Glens Falls, 

908 F.3d 19, 24 n.4 (2d Cir. 2018), we hold simply that the district court would have been well 

within its authority to dismiss these claims as duplicative of Malcolm I as well. Although Simpson, 

Pauly, and Root were not named as defendants in Malcolm I, the facts relied upon and the claims 

asserted in both actions were virtually identical. Moreover, Simpson, Pauly, and Root, as RCSD 

employees, were in privity with RCSD, which was named as a defendant in Malcolm I. Ms. 

Malcolm accordingly may not maintain these two separate lawsuits. See Sacerdote v. Cammack 

Larhette Advisors, LLC, 939 F.3d 498, 504–07 (2d Cir. 2019) (holding that the rule against 

duplicative litigation may be invoked where each action relies on the same facts, asserts the same 

rights, and is brought against parties that are the same or are in privity with each other); Malcolm 

v. Bd. of Educ. of Honeoye Falls-Lima Cent. Sch. Dist., 506 F. App’x 65, 68 (2d Cir. 2012) 

(summary order) (holding, in the claim preclusion context, that “[a]lthough this action adds 

defendants who were not part of the prior actions, because all of the defendants named in this 
4

action are either current or former agents or employees of the school district, the principle of privity 

bars relitigation of these claims against these new defendants as well.”).

We note, finally, that because a prior panel of this Court remanded certain claims in 

Malcolm I with instructions for the district court to reconsider whether to grant Ms. Malcolm leave 

to amend those claims, Ms. Malcolm will have an opportunity to amend her complaint in Malcolm 

I to add any claims against Simpson, Pauly, and Root that could be cured through more precise 

pleading.2

We have considered all of Ms. Malcolm’s remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk

2 We agree with the district court that claims under Title VII or the Age Discrimination 

in Employment Act cannot be maintained against Simpson, Pauly, and Root because only 

employers are liable under these statutes. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 

2000) (per curiam); Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011) (summary order). As 

explained in our decision in the appeal of Malcolm I, see Malcolm v. ASAR, No. 19-2412, slip 

op. at 3–4 (2d. Cir. Oct. 14, 2020), any breach of contract claim arising out of a purported breach 

of the collective bargaining agreement between Ms. Malcolm’s union and her employer is also 

barred. See Ifill v. N.Y. State Court Officers Ass’n, 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009). 

Ms. Malcolm’s other claims against Simpson, Pauly, and Root could potentially be re-raised in 

an amended complaint in Malcolm I, and we instruct the district court to consider whether to 

grant leave to amend accordingly in the remand of Malcolm I.