1 19-1098-cv Stinnett v. Delta et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 13 th day of March, two thousand twenty.
Present: B ARRINGTON D. P ARKER , D EBRA A NN L IVINGSTON , W ILLIAM J. N ARDINI , Circuit Judges

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_____________________________________ V ENUS S TINNETT , Plaintiff-Appellant , v. 19-1098-cv
D ELTA A IR L INES , I NC

. and Q UEST D IAGNOSTICS C LINICAL L ABORATORIES , I NC ., Defendants-Appellees

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_____________________________________ For Plaintiff-Appellant: A NGEL A. C ASTRO III, Esq., New York, NY For Defendant-Appellant Delta Air Lines, Inc.: I RA G. R OSENSTEIN , Morgan, Lewis & Bockius LLP, New York, NY; Bryan M. Killian, Morgan, Lewis & Bockius LLP, Washington, DC; Shannon N. Attalla, Morgan, Lewis & Bockius LLP, Philadelphia, PA For Defendant-Appellant2 Quest Diagnostics Clinical Laboratories, Inc.: D. F AYE C ALDWELL , Caldwell Everson PLLC, Houston, TX
Appeal from a judgment of the United States Dist rict Court for the East ern District of New York (Irizarry, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Venus Stinnett (“Stinnett”), formerly a flight attendant employed by Defendant-Appellee Delta Air Lines, Inc. (“De lta”), appeals from an April 4, 2019 judgment of the United States District Court for the Eastern District of New York (Irizarry, J. ), granting Delta’s and Defendant-Appellee Quest Diagnostics Clinical Laboratories, Inc.’s (“Quest”) motions to dismiss the complaint for failure to state a clai m pursuant to Federal Rule of Civil Procedure 12(b)(6). In 2014, Delta terminated Stinnett after a mandatory drug test—administered by Quest— returned a positive result for cocaine and alcohol intoxication. Following her termination, Stinnett sued Delta and Quest in the Easter n District of New York (Irizarry, J. ), alleging, inter alia , disability discrimination under the American s with Disabilities Act (“ADA”) and gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The district court dismissed Stinnett’s federal cla ims and declined to ex ert supplemental jurisd iction over her related state claims in Stinnett v. Delta Air Lines, Inc. (“ Stinnett I ”), 278 F. Supp. 3d 599 (E.D.N.Y. 2017). Stinnett then filed the instant action in the Supreme Court of th e State of New York, Kings County, alleging, inter alia , disability discrimination under the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296, et seq. , and gender discrimination under the New York3 City Human Rights Law (“NYCHRL” ), N.Y.C. Admin. Code §§ 8-107, et seq

. 1 The defendants removed the action to the federal district court pu rsuant to 28 U.S.C. § 1441 and moved separately to dismiss Stinnett’s comp laint (the “Complaint”) for failure to state a cl aim. As indicated above, the district court granted those motions in their entirety. 2 We assume the parties’ familiarity with the underlying facts, the pro cedural history of the case, and the issues on appeal.
* * * I. Stinnett’s Disability Dis crimination and Related Claims We review a district court’s rulings on a mo tion to dismiss pursuant to Rule 12(b)(6) de

novo , “accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor.” Carpenters Pens. Tr. Fund of St. Louis v. Barclays PLC , 750 F.3d 227, 232 (2d Cir. 2014) (internal quotation marks omitted) . Under Federal Rule of Civil Procedure 8(a), the Complaint must contain a “short and plain stat ement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In othe r words, it must allege “sufficient factual matter, accepted as true, to ‘state a claim for re lief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). “[T]he

1 On appeal, Stinnett challenges the district co urt’s interpretation of the Complaint to allege disability discrimination only under the NYSHR L and gender discrimination only under the NYCHRL. The district court’s unde rstanding of the Complaint, how ever, is the onl y fair reading. Stinnett’s cause of act ion under the NYSHRL clearly refers only to the pr ovisions of that law prohibiting discrimination on the basis of disability. Likewise , her cause of action under the NYCHRL clearly refers only to the provisions of that law prohibiting disc rimination on the basis of gender. In any case, the allegati ons in Stinnett’s Complaint are insu fficient to suppo rt a disability or gender discrimination claim under either statute.
2 In her appellate briefing, Stinne tt makes no argument whatsoever in connection with the district court’s dismissal of her claims ag ainst Quest. At oral argument, S tinnett’s counsel conceded that she has waived those claims on appeal. See Tolbert v. Queens Coll. , 242 F.3d 58, 75 (2d Cir. 2001). For the same reason, we a ffirm the district court’s dismissal of Stinnett’s breach-o f-contract claims against Delta.4 complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC , 783 F.3d 395, 401 (2d Cir. 2015) (quoting Twombly , 550 U.S. at 555 (alteration in original)). In considering claims based in New York law, we determine the law of New York de novo , affording the greatest weight to decisions of the New York Court of Appeals. If that cour t has not spoken on the relevant issue, we may consider the opinions of lower New York courts as indicators of how the Court of Appeals might rule. In re Sharp Int’l Corp. , 403 F.3d 43, 50 (2d Cir. 2005). The district court dismissed Stinnett’s claims for disability disc rimination, failure to accommodate, and retaliation under the NYSHRL as barred by collateral es toppel. “Collateral estoppel, or issue preclusion, prev ents parties or their privies fro m relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon , 310 F.3d 280, 288 (2d Cir. 2002). We have consistently held that issue preclusion applies only in the pr esence of the following four elemen ts: “(1) the identical issue was raised in a previous proceeding; (2) the issue wa s actually litigated and d ecided in the previous proceeding; (3) the part[ies] had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to suppor t a valid and final judgment on the merits.” Wyly v.
Weiss , 697 F.3d 131, 141 (2d Ci r. 2012) (quoting Marvel Characters, Inc. , 310 F.3d at 288–89). For two issues to be “identical,” they must invol ve not only the same factual predicate, but also the same legal standard. B & B Hardware, Inc. v. Hargis Indus., Inc. , 575 U.S. 138, 154 (2015). The district court determined that it had resolv ed issues identical to Stinnett’s disability discrimination claims in Stinnett I , explaining that the prior suit involved essentially indistinguishable factual alle gations and was governed by e quivalent legal standards. Rodal v. Anesthesia Grp. of Onondaga, P.C. , 369 F.3d 113, 117 n.1 (2d Cir. 2004) (“New York State5 disability discrimination claims are governed by the same legal stan dards as federal ADA claims.”). The district court dete rmined that the parties had enjoye d a “full and fair opportunity to litigate” the relevant issue in Stinnett I , and that its resolution of t hose issues was necessary to support a final judgment on the merits. On appeal, Stinnett does not contest the district court’s legal determination that collateral estoppel would bar the above claims. Instead, she ch allenges the district cour t’s authority to apply the doctrine of collateral estoppel sua sponte . She argues that because her complaint was filed in New York state court and subsequently removed to federal district court on diversity grounds, New York law governs whether Delta and Quest waived the collateral estoppel defense. Under New York Civil Practice Law and Rules § 3211, she c ontends, a defendant must raise a collateral estoppel defense in a motion to dismiss or othe r responsive pleading. This may be the preferred result under New York law, see Rienzi v. Rienzi , 808 N.Y.S.2d 116, 117 (2d Dep’t 2005), but federal courts “apply federal law in determining the pr eclusive effect of a federal judgment.” 3 Marvel Characters, Inc. , 310 F.3d at 286; see also Taylor v. Sturgell , 553 U.S. 880, 891 (2008). And under federal law, a court may rais e the issue of collateral estoppel sua sponte

. Doe v. Pfrommer , 148 F.3d 73, 79 (2d Cir. 1998); see also Arizona v. California , 530 U.S. 392, 412 (2000)

3 Under federal common law, the qu estion of whose law governs the preclusive effect of a prior federal judgment turns on the basi s for jurisdiction in that prior ca se, without regard to the basis for jurisdiction in a later case appl ying it. The preclusive effect of a judgment rendered by a federal court sitting in diversity is determined by the law of the state in which the rendering court sat. See Semtek Int’l Inc. v. Lockheed Martin Corp. , 531 U.S. 497, 508 (2001). But th e preclusive effect of a judgment rendered by a federal court on a federal question is determined by federal law principles, even where, as here, a subsequent court sits in diversity. See Purdy v. Zeldes , 337 F.3d 253, 258 & n.5 (2d Cir. 2003) (applying federal collateral estoppel pr inciples to bar a diversity plaintiff’s claims ba sed on a prior federa l question judgment); see also Gelb v. Royal Globe Ins. Co. , 798 F.2d 38, 41–42 (1986) (“[A] fede ral court should apply fede ral law” to “determine the preclusive effect of a prior federal question judgment.”).6 (“[I]f a court is on notice that it has previously decided the issue presente d, the court may dismiss the action sua sponte , even though the defense ha s not been raised.”). Stinnett I was a federal judgment based on the district court’s federal ques tion jurisdiction. Accordingly, the district court was entitled to apply collateral estoppel to bar S tinnett’s disability disc rimination, failure to accommodate, and retaliation claims under the NYSHRL. II. Stinnett’s Gender Discrimi nation and Related Claims The district court did not apply collateral esto ppel principles to bar Stinnett’s claims of gender discrimination and retaliation under the NYCHRL because that statute imposes a more liberal standard than the one applicable to comparable claims brought under Title VII. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 109 (2d Cir. 2013) (“[C]ourts must analyze NYCHRL claims separately and indepe ndently from any federal and state law claims, construing the NYCHRL’s provisions broadly in favor of discriminati on plaintiffs, to the extent that such a construction is reasonably possible.” (internal quotation marks and citations omitted)). Nonetheless, the NYCHRL “is not a general civility code,” and the plaintiff must still show that the challenged “conduct is cause d by a discrimin atory motive.” Id. at 110 (internal quotation marks omitted). Even under this more permissive standa rd, the district court de termined that Stinnett failed to plausibly allege that her termination occurred under circumstances giving rise to an inference of discrimination or retaliation. Rath er, it concluded that the facts Stinnett pleaded indicated that she was fired ba sed on her positive drug test. We agree with the district co urt’s determination. Although S tinnett alleges that six male flight attendants were reinstated after completing a drug rehabilitation course while she was not, her pleadings give no indication that she was suffici ently similarly situated to these other flight attendants plausibly to suggest a discriminatory mo tive. A plaintiff relying on comparator evidence7 to allege gender discrimination under Title VII or the NYSHRL must plead that “she was similarly situated in all material respects to the indivi duals with whom she seeks to compare herself.” Littlejohn v. City of New York , 795 F.3d 297, 312 (2d Cir. 2015) (inter nal quotation marks omitted). Stinnett, however, not only fails to allege facts suggesting th at the six putative comparators engaged in conduct similar to he rs before being terminated and reinstated, but she also affirmatively alleges that thes e putative comparators had known dr ug and alcohol abuse disabilities while she suffered from no such disorder. Thes e threadbare allegations, which actively undermine any claim that Stinnett is similarly situated to the six men she argued received better treatment, are insufficient to state a claim for gender discri mination even under the more permissive NYCHRL standard. See Mihalik , 715 F.3d at 110 (explaining that a pl aintiff under the NYCHRL must allege that she is “treated ‘less well’[] because of a discriminatory intent .” (emphasis added)). We have considered Stinnett’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