15‐2395 Carter v. Syracuse 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 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 8th day of August, two thousand sixteen.

PRESENT: CHESTER J. STRAUB, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. ______________________

CORENE D. CARTER, AKA CORENE BROWN,

Plaintiff‐Appellant,

‐v.‐ 15‐2395

SYRACUSE CITY SCHOOL DISTRICT, DANIEL LOWENGARD, JOHN DITTMAN, JILL STEWART, JOHN DOE(S), JANE DOE(S),

Defendants‐Appellees. ______________________ FOR APPELLANT: A.J. BOSMAN, Bosman Law Firm, L.L.C., Canastota, NY.

FOR APPELLEE: MILES G. LAWLOR, Ferrara Fiorenza PC, East Syracuse, NY.

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

Northern District of New York (Scullin, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the petition for rehearing is GRANTED, the

prior summary order of this Court of July 11, 2016, is modified, the judgment of

the District Court is VACATED, and the case is REMANDED.

Defendants‐Appellees seek rehearing of the decision of this Court

rendered July 11, 2016, to the extent it vacated the District Court’s dismissal, on

the pleadings, of Plaintiff‐Appellant Corene D. Carter’s New York state law

claims of retaliation and racial and gender discrimination under the New York

State Human Rights Law,

et seq. (“NYSHRL”) against the

Syracuse City School District (the “School District”) and Daniel Lowengard, the

School District’s former Superintendent (“Superintendent Lowengard”).

Before the District Court, Carter sought to amend her complaint to assert

New York state law claims of retaliation and racial and gender discrimination

2 against the School District and Superintendent Lowengard pursuant to the

NYSHRL. The District Court dismissed these claims on the basis that Carter had

failed to comply with the notice‐of‐claim provisions in

,

which the District Court held were conditions precedent to bringing any claim

under the NYSHRL against a school district or its officers.

Following the dismissal of these claims, the New York State Court of

Appeals decided Margerum v. City of Buffalo, where it stated “that a notice of

claim need not be filed for a Human Rights Law claim against a municipality,”

and thus concluded that a notice of claim was not a condition precedent to a

plaintiff’s lawsuit alleging NYSHRL violations against a municipality.

(2015). Despite this language, no party briefed the matter on appeal

or followed up on the discussion of Margerum at oral argument with a post‐

argument letter clarifying its position on the applicability of the case to the

claims at issue here until Defendants petitioned for rehearing. Because we are

already remanding other portions of the District Court’s judgment, rather than

evaluate the relevance of Margerum to Carter’s NYSHRL claims ourselves, we

think it is the preferred course to remand to the District Court to consider

Margerum’s impact on these claims in the first instance.

3 Moreover, although “ordinarily rehearing will not be granted in the

absence of . . . a request” for an answer, see Fed. R. App. P. 40(a)(3), we do not

believe an answer is necessary in this case, as Carter will have an opportunity to

present her views to the District Court on remand. Accordingly, the petition for

rehearing is GRANTED, and we withdraw that part of our summary order of

July 11, 2016, which vacated the District Court’s dismissal of Carter’s NYSHRL

retaliation and racial and gender discrimination claims asserted against the

School District and Superintendent Lowengard in the proposed amended

complaint. We therefore REMAND the District Court’s dismissal of those claims

asserted in Counts 2 and 5 of the proposed amended complaint for

reconsideration in light of Margerum v. City of Buffalo,

(2015), and

REMAND the case to the District Court for further proceedings consistent with

both this order and this Court’s summary order of July 11, 2016.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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