1 19-364-cv Perez-Dickson v. Bridgeport Bd. of Educ. 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 Courthouse, 40 Fole y Square, in the City of New York, on the 28 th day of January, two thousand twenty.
Present: R EENA R AGGI , D EBRA A NN L IVINGSTON , W ILLIAM J. N ARDINI , Circuit Judges

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_____________________________________ C ARMEN P EREZ -D ICKSON , Plaintiff-Appellant , v. 19-364-cv
B RIDGEPORT B OARD OF E DUCATION , D R
. S ANDRA K ASE , & P AUL V ALLAS Defendants-Appellees

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_____________________________________ For Plaintiff-Appellant: J OSEPHINE S. M ILLER , Danbury, CT For Defendants-Appellees: S TEPHEN M. S EDOR , Pullman & Comley LLC, Bridgeport, CT Appeal from a judgment of the United States Dist rict Court for the Dist rict of Connecticut (Warren W. Eginton, J .).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Carmen Perez-Dickson (“Perez-Dickson”) appeals from a September 28, 2018, memorandum and order denying her motion for leave to amend her complaint. The complaint alleged claims for race discrimina tion and retaliation under 42 U.S.C. § 1983 and Connecticut General Statutes 31-51q against her em ployer, the Bridgeport Bo ard of Education (the “Board”), as well as Dr. Sandra Kase and Paul Vallas (together, “Defen dants”). We conduct de

novo review where, as here, the district court denies leave to amend on futility grounds. See Gorman v. Consol. Edison Corp. , 488 F.3d 586, 592 (2d Cir. 2007). We assume the parties’ familiarity with the underlying fact s, the procedural history of th e case, and the issues on appeal.
* * * The instant case is the latest in a series of employment disc rimination and retaliation suits brought since 2000 by Perez-Dickson, a school prin cipal employed by the Board. Perez-Dickson first sued the Board in 2000, alleging discrimin ation and retaliation st emming from her reporting of two Caucasian teachers for student abuse. Perez-Dickson v. City of Bridgeport , 43 A.3d 69, 79 (Conn. 2012). She prevailed at trial, but th e Connecticut Supreme Court overturned the verdict in 2012. Id. at 103. Perez-Dickson filed a second suit in 2013, which was removed to the District of Connecticut, asserting claims ba sed on the Board’s decision to place her on paid leave and recommend her for termination due to alle gations that she dragged children in the halls at school. The court granted summary judgme nt to defendants on January 19, 2016, and this Court affirmed. See Perez-Dickson v. Bridgeport Bd. of Educ. , No. 16-525-cv, 2017 WL 362771 (2d Cir. Jan. 24, 2017) (hereinafter “ Perez-Dickson I” ). Now before the Court is PerezDickson’s third suit against the Board, allegi ng discrimination and retaliation based on her3 suspension in October 2013 for the dragging incidents, and based on additional adverse employment actions she experi enced upon her return from suspen sion. These included not being assigned a regular worksite, not being permitted to participate in a professional development retreat, the withdrawal of ten days of sick leave, and the provision of false information to the State Department of Education. The district court granted Defendants’ motion to dismiss on January 18, 2018, providing Perez-Dickson with an opportunity to seek leav e to amend her complaint. On September 28, 2018, the court denied Perez-Dickson’s motion fo r leave to amend, dee ming amendment futile because the proposed complaint failed to resolve the deficiencies identified in the earlier complaint. The court granted Perez-Dickson a final opportunity to su pplement her complaint based on evidence adduced in ongoing discove ry, permitting her to file a motion for reconsideration by October 19, 2018. When she fa iled to do so, the court entered judgment on October 31, 2018, and later denied a motion to vacate on January 8, 2019. The district court did not err in determin ing that Perez-Dicks on’s proposed amendment was futile. First, as to discrimination, the proposed complaint does not allege facts that “give plausible support to a minimal infe rence of discriminatory motivati on,” as required to survive a motion to dismiss under Federal Rule of Civi l Procedure 12(b)(6) in this context. Vega v. Hempstead Union Free School Dist. , 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn v. City of New York , 794 F.3d 297, 311 (2d Cir. 2015)). In Perez-Dickson I , this Court c oncluded that, following discovery, Perez-Dickson had adduced insu fficient evidence to raise a triable question of fact as to whether her place ment on administrative leave pendi ng investigation was a pretext for race discrimination, as opposed to a legitimate response to “the serious (and documented) allegations of student abuse” against her. Perez-Dickson I , 2017 WL 362771, at *2. In the4 instant case, in arguing that the transition from the previously uphe ld paid leave to suspension based on the same underlying incide nt amounted to race discrimina tion, Perez-Dickson has failed to plead additional facts rendering plausible even a minimal inference of discrimination. As Perez-Dickson I previously held, her proffered comparator s, including an assistant principal who was alleged to have assaulted a student but who was not disciplined, are not similarly situated because none was accused of multiple ac ts of abuse documented on videotape. See PerezDickson I , 2017 WL 362771, at *2. Perez-Dickson’s un supported, conclusory assertion that “similarly situated employees of the school board who engage d in the same or similar conduct as Plaintiff but who were not placed on administrative leave . . . or disciplined with a six month unpaid suspension are comparators that are similarl y situated to Plaintiff” likewise cannot render her claim plausible. A. 35; see Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). The proposed complaint’s discrimination claims are thus insuffic ient to withstand a motion to dismiss, and the denial of leave to amend with resp ect to those claims was proper. The district court was likewise correct in finding Perez-Dickson’s proposed amendment futile as to her re taliation claims. Claims for em ployment retaliation under § 1983 and Connecticut General Statutes § 31-51q require that Perez-Dickson plausibly plead a causal connection between protected activity and an a dverse employment action taken against her. See Vega , 801 F.3d at 91; Conn. Gen. Stat. § 31-51q (2019) . She failed to do so. Even assuming that Perez-Dickson engaged in prot ected activity within the meaning of the relevant statutes with any temporal proximity to the October 2013 susp ension, the complaint fails to set forth facts rendering plausible the inference of the requ isite causal connection. The October 2013 suspension and the collateral consequences thereof identified by the complaint were merely the culmination of the same July 2012 suspension that this Court has already upheld as non-retaliatory.5 See Perez-Dickson I , 2017 WL 362771, at *3. Pe rez-Dickson was required to plead more than merely a conclusory assertion that those adverse actions were the re sult of retaliation in order to render a causal connection plausible. In these circ umstances, and in light of the history of this case, Perez-Dickson’s proposed complaint was th erefore insufficient to survive a motion to dismiss, warranting the denial of leave to amend. Finally, as to Perez-Dickson’s ar guments relating to the district court’s denial of her motion to vacate the October 31, 2018, ju dgment in order to obtain furt her discovery, the Court lacks jurisdiction over that claim. Perez-Dickson’s notice of ap peal refers solely to the judgment rendered on “October 3[1], 2018.” A. 56. The chal lenged denial of the motion to vacate is contained in a distinct January 8, 2019, order, wh ich is not identified by Perez-Dickson’s notice of appeal and cannot reasonably be infe rred to be raised by that notice. See Kovaco v. Rockbestos–Surprenant Cable Corp. , 834 F.3d 128, 134 (2d Cir. 2016); see also Perez-Dickson I , 2017 WL 362771, at *1–2 (holding juri sdiction lacking where Perez- Dickson similarly failed to designate appropriate order in notice of appeal). Moreover, even if Perez-Dickson could establish jurisdiction over this claim, she has failed to demonstrate “extraordinary circumstances” warranting relief under Federal Rule of Civil Procedure 60(b). United States v. Bank of N.Y. , 14 F.3d 756, 759 (2d Cir. 1994). We have considered Perez-Dickson’s remainin g arguments and find th em to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk