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- 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 NO TATION “ 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 Court house, 40 Foley Square, in the City of New York, on the 12 th d a y 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 Deane

Williams, Superintendent of Schools, Individually, Sandra Simpson, Chief of Specialized Services and former Interim Director of Spec ial ized 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, N Y

. FOR DEFENDANT S

- APPELLEE S : 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 , S uperintendent 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 id entical complaints in district court , initiating : (1) a n 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 I I

. 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 distr ict 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 M s. M alcolm’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 . T hus, the district court h ad 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 re view de novo

. Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002)

. B ecause “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. C ity 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 up on 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 t he 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 this4 action are either current or former agents or employees of the school district, the principle of pri vity 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. Mal colm 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 remai ning 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 , s lip o p. at 3

– 4 ( 2d. Cir. Oct. 14 , 2020 ), a ny 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 ac cordingly in the remand of Malcolm I.