23-1041-cv Davis v. Metro North Commuter R.R.

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 3rd day of April, two thousand twenty-four. Present: ROBERT D. SACK, WILLIAM J. NARDINI, MYRNA PÉREZ, Circuit Judges.

_____________________________________ RHULAND DAVIS, Plaintiff-Appellant, v. 23-1041-cv

METRO NORTH COMMUTER RAILROAD, ANDREW PAUL, Vice President Labor Relations, in his official and personal capacity, JOHN LONGOBARDI, Deputy Chief Field Operations, in his official and personal capacity, Defendants-Appellees. _____________________________________

For Plaintiff-Appellant: JOSHUA ALEXANDER BERNSTEIN, Josh Bernstein P.C., New York, NY

For Defendants-Appellees: JENNIFER A. MUSTES, for Susan Sarch, Vice- President and General Counsel, Metro-North Commuter Railroad Company, New York, NY

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

New York (Edgardo Ramos, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,

and REMANDED in part.

Plaintiff-Appellant Rhuland Davis appeals from a judgment of the United States District

Court for the Southern District of New York (Edgardo Ramos, District Judge), entered on June

20, 2023, dismissing with prejudice his claims under Federal Rule of Civil Procedure 12(b)(6).

Davis, who is African American, sued his former employer, Defendant-Appellee Metro North

Commuter Railroad (the “MNR”) as well as Defendants-Appellees Andrew Paul and John

Longobardi, MNR employees, in their official and personal capacities (collectively with MNR, the

“Defendants”), asserting claims arising out of his termination for (1) race discrimination and

retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”),

et seq.;

(2) selective enforcement under the Equal Protection Clause of the Fourteenth Amendment and

; and (3) a procedural due process violation under the Fourteenth Amendment and

.

The second amended complaint (“SAC”) alleges the following: In 2016, the MNR found

Davis guilty of a workplace infraction and disciplined him by issuing him a “‘last chance’

disciplinary waiver.” J.A. at 11–12. Under a last chance waiver, Davis would be terminated upon

his next disciplinary violation. In 2018, Davis worked on a New Haven line train, along with a

brakeman and engineer, that collided with another train. For his involvement in the collision, the

MNR suspended Davis and issued a notice of a disciplinary trial. The MNR held pre-trial

conciliation meetings with the brakeman and engineer and offered them both settlement

2 agreements that did not involve termination, but the MNR did neither for Davis. After a

disciplinary trial, the MNR terminated Davis pursuant to the last chance waiver that he received

in 2016. Davis claims that his termination was racially motivated, pointing to instances where the

MNR declined to terminate white employees who also had last chance waivers and were involved

in similar misconduct. The district court dismissed the SAC with prejudice for failure to state a

claim under Rule 12(b)(6). This appeal followed. We assume the parties’ familiarity with the

case.

“We review de novo a district court’s grant of a dismissal under Rule 12(b)(6).

Accordingly, we accept all factual allegations as true and draw every reasonable inference from

those facts in the plaintiff’s favor. The complaint must provide enough facts to state a claim to

relief that is plausible on its face.” MacNaughton v. Young Living Essential Oils, LC,

(2d Cir. 2023). 1

I. Title VII Claim

“[A]t the initial stage of the litigation[,] . . . the plaintiff does not need substantial evidence

of discriminatory intent . . . in light of the plaintiff’s minimal burden.” Littlejohn v. City of New

York,

(2d Cir. 2015). “[F]or a discrimination claim [under Title VII] to survive

a motion to dismiss, absent direct evidence of discrimination, what must be plausibly supported

by facts alleged in the complaint is that the plaintiff (1) is a member of a protected class, (2) was

qualified, (3) suffered an adverse employment action, and (4) has at least minimal support for the

proposition that the employer was motivated by discriminatory intent.” Buon v. Spindler,

(2d Cir. 2023). With respect to the fourth prong, a plaintiff may “rais[e] an inference of

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.

3 discrimination” through “[a] showing of disparate treatment—that is, a showing that an employer

treated plaintiff less favorably than a similarly situated employee outside his protected group.”

Ruiz v. County of Rockland,

(2d Cir. 2010); see Littlejohn,

.

“An employee is similarly situated to co-employees if they were (1) subject to the same

performance evaluation and discipline standards and (2) engaged in comparable conduct.” Ruiz,

609 F.3d at 493–94.

Davis first argues that the district court improperly relied on exhibits attached to

Defendants’ motion to dismiss and, in particular, Defendants’ Exhibit H. “In considering a motion

to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the

facts alleged in the complaint, documents attached to the complaint as exhibits, and documents

incorporated by reference in the complaint. Where a document is not incorporated by reference,

the court may nevertheless consider it where the complaint relies heavily upon its terms and effect,

thereby rendering the document integral to the complaint.” United States ex rel. Foreman v.

AECOM,

(2d Cir. 2021).

Exhibit H is a copy of a text message sent from Dennis Richardson—an MNR conductor

and hearing officer for the union to which Davis belonged—to Davis on September 26, 2018,

stating:

He said he would put you back to work tomorrow IF you sign a last chance waiver for time served, admitting guilt and forfeiting any appeals. If you decline they are going to dismiss. Not a great choice but let me know what you want to do. We support any decision you make. Thanks.

J.A. at 63. Richardson further wrote, “I spoke to Ralph [a train conductor and the chairman of the

union], I sent an email to grant them an extension on their time to make a decision. Ralph wants

to see the President about the offer.”

Davis responded, “Ok.”

Citing Exhibit H, the district

4 court stated that “[o]n September 26, 2018, Davis was informed that [MNR] would not terminate

his employment as long as he signed an admission of guilt waiver and forfeited his right to an

appeal.” Davis v. Metro N. Commuter R.R., No. 21 Civ. 387 (ER),

, at *3

(S.D.N.Y. June 20, 2023). It further stated that “Davis rejected [MNR]’s offer,”

citing a

paragraph in the SAC alleging that Davis “did not want to sign an admission of guilt,” J.A. at 21.

Relying on those facts, the district court concluded that some of the proffered comparators were

not similarly situated because they accepted a settlement offer, whereas Davis rejected his offer.

We conclude that, even assuming Exhibit H was properly incorporated by reference by or

integral to the SAC, the district court erred by engaging in impermissible factfinding. At the

pleading stage, the court must accept the allegations in the complaint as true, unless they are

conclusory and contradicted by extrinsic material incorporated into the complaint. See Amidax

Trading Grp. v. S.W.I.F.T. SCRL,

, 146–47 (2d Cir. 2011). Additionally, courts must

resolve competing inferences in plaintiff’s favor at the pleading stage. See Anderson News, L.L.C.

v. Am. Media, Inc.,

, 184–85 (2d Cir. 2012). Here, the SAC alleges that even though

Davis heard that he might receive a settlement offer from the MNR, the offer “never actually

materialized.” J.A. at 21. Indeed, the SAC repeats on multiple occasions that Davis never received

an offer. Exhibit H does not contradict those allegations and permits an inference supporting the

narrative set forth in the SAC. While Exhibit H may allow for an inference that Davis received an

offer, “[t]he choice between two plausible inferences that may be drawn from factual allegations

is not a choice to be made by the court on a Rule 12(b)(6) motion.” Anderson News, L.L.C.,

. Thus, by finding that Davis received an offer based on Exhibit H, and by failing to

credit any of Davis’s allegations to the contrary, the district court erred by resolving competing

inferences in favor of Defendants.

5 Davis next argues that the district court erred by concluding that the SAC fails to

adequately plead circumstances giving rise to an inference of discrimination. We agree. The SAC

sufficiently pleads that one white employee, Danielle Bonge, was similarly situated. Davis alleges

that Bonge received a last chance waiver and later was working on a train that collided with a

passenger train. MNR did not terminate Bonge for her role in the collision, but instead gave her

another last chance waiver. Thus, at least as alleged in the SAC, Bonge “was similarly situated in

all material respects to [Davis],” Brown v. Daikin Am. Inc.,

(2d Cir. 2014),

because, like Davis, Bonge was on a last chance waiver before her involvement in a train collision.

We also find, however, that the remaining alleged comparators are not similarly situated to Davis

because the SAC fails to plead that they were on last chance waivers or participated in conduct of

comparable severity as a train collision. 2 In sum, the sufficient comparator allegation provides “at

least minimal support for the proposition that the employer was motivated by discriminatory

intent.” Buon,

. We therefore vacate the district court’s dismissal of the Title VII

claim and remand for further proceedings consistent with this order.

II. Selective Enforcement Claim

Davis also asserts a selective enforcement claim under the Equal Protection Clause. “To

prevail on such a claim, a plaintiff must prove that (1) [he], compared with others similarly

situated, was selectively treated, and (2) the selective treatment was motivated by an intention to

discriminate on the basis of impermissible considerations, such as race or religion, to punish or

2 In its opinion and order ruling on the motion to dismiss, the district court at times states that there is no evidence of disparate treatment. See, e.g., Davis,

, at *8 (“Because none of the identified individuals could objectively be considered similarly situated in all material respects, Davis failed to produce evidence of discrimination vis-à-vis similarly situated employees.” (emphasis added)). Of course, it would have been erroneous for the district court to require Davis to produce evidence to survive a motion to dismiss. But reading the district court’s references to “evidence” in context, we are convinced that it was referring instead to the sufficiency of the allegations in the SAC and the extrinsic materials that it considered.

6 inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the

person.” Hu v. City of New York,

(2d Cir. 2019). A comparator is similarly

situated to the plaintiff when “the plaintiff’s and comparator’s circumstances . . . bear a reasonably

close resemblance.”

. To establish the second prong, “plaintiffs must prove that the

disparate treatment was caused by the impermissible motivation. They cannot merely rest on a

showing of disparate treatment.” Bizzarro v. Miranda,

(2d Cir. 2005); see also

Hu,

(defining “impermissible considerations” to “protect[] against both

discrimination on the basis of a plaintiff’s protected status (e.g., race or a constitutionally-protected

activity) and discrimination on the basis of a defendant’s personal malice or ill will towards a

plaintiff”).

As established above, the SAC sufficiently pleads that Bonge “bear[s] a reasonably close

resemblance” to Davis,

. Defendants contend that Davis’s selective enforcement claim

nevertheless fails because the SAC does not plausibly allege that Defendants’ conduct was caused

by an impermissible motivation. While this is a close call, we conclude that the SAC contains

sufficient allegations of irregularities in Defendants’ treatment of Davis after the collision that

“nudge[]” his selective enforcement claim “across the line from conceivable to plausible.”

Ashcroft v. Iqbal,

(2009). The SAC alleges that (1) Defendants did not provide

a pre-investigation meeting or a settlement offer to Davis, in violation of the MNR’s collective

bargaining agreement with the union; (2) Defendants indicated prior to the investigation that they

intended to terminate Davis for the collision; and (3) Defendants delayed the investigation of

Davis. Generously construed, these allegations suggest that Defendants acted with malice towards

Davis. Accordingly, we vacate the district court’s dismissal of the selective enforcement claim

and remand for further proceedings consistent with this order.

7 III. Procedural Due Process Claim

Davis next argues that the district court erred by dismissing his procedural due process

claim. “A procedural due process claim is composed of two elements: (1) the existence of a

property or liberty interest that was deprived and (2) deprivation of that interest without due

process.” Radwan v. Manuel,

(2d Cir. 2022). Davis, a public employee who is

terminable only for cause, “was entitled to a very limited hearing prior to his termination, to be

followed by a more comprehensive post-termination hearing.” Gilbert v. Homar,

(1997). The “pretermination process need only include oral or written notice of the charges,

an explanation of the employer’s evidence, and an opportunity for the employee to tell his side of

the story.”

Davis contends that Defendants deprived him of due process because MNR decided to

terminate him before the investigation and hearing occurred. We disagree. It is well settled that a

neutral adjudicator is not required at a pre-termination hearing, “where the [employer] affords

plaintiff, subsequent to his termination, a full adversarial hearing before a neutral adjudicator.”

Locurto v. Safir,

(2d Cir. 2001). Here, the SAC alleges that Davis was given

(and took) the opportunity to subsequently challenge his termination through an arbitration

proceeding.

Davis contends that arbitration proceedings are per se insufficient because they differ from

the proceeding in Locurto, and that his particular arbitration was insufficient because the arbitrator

was allegedly mentally infirm. We again disagree. Arbitration proceedings can constitute

adequate post-deprivation process. See Harhay v. Town of Ellington Bd. of Educ.,

,

213 (2d Cir. 2003) (“Courts have held that . . . post-deprivation procedures [set forth by a union

agreement], providing for [an arbitration] hearing to contest a challenged employment decision,

8 are sufficient to satisfy due process.”). And beyond conclusory allegations that the arbitrator was

mentally infirm based on his age and that the MNR and the union have since decided to no longer

use that arbitrator, Davis alleges no facts demonstrating that his arbitration proceeding constituted

insufficient process. Accordingly, we affirm the district court’s dismissal of Davis’s due process

claim.

* * *

We have considered Davis’s remaining arguments and find them unpersuasive.

Accordingly, the district court’s judgment is AFFIRMED in part and VACATED and

REMANDED in part.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

9