14‐972
Scott v. Berkeley College
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 31st day of March, two thousand fifteen.
PRESENT: RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
____________________________________________
ROBERT SCOTT,
Plaintiff‐Appellant,
‐v.‐ No. 14‐972
BERKELEY COLLEGE,
Defendant‐Appellee.*
____________________________________________
FOR APPELLANT: Robert Scott, pro se, New York, NY.
* The Clerk of the Court is respectfully requested to amend the caption as indicated.
FOR APPELLEE: Patrick J. Lawless, Wilson, Elser, Moskowitz, Edelman
& Dicker, LLP, New York, NY (David F. Bayne,
Akerman LLP, New York, NY, on the brief).
____________________________________________
Appeal from the United States District Court for the Southern District of
New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and
hereby is AFFIRMED.
Plaintiff‐Appellant Robert Scott appeals from a judgment of the United
States District Court for the Southern District of New York, dismissing his claims
of gender discrimination and retaliation against Defendant‐Appellee Berkeley
College (“College”) pursuant to Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 et seq. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.1
This case arises from a classroom altercation involving two female
students and Scott, a male student. Scott argues that the College engaged in
gender discrimination when it investigated and punished Scott differently from
1 We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), construing the complaint liberally, accepting all well‐pled
factual allegations in the complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
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the two female participants. We conclude that the District Court correctly
dismissed Scott’s claim for failure to allege sufficient facts under either a “flawed
outcome” or “selective enforcement” theory of gender discrimination. See Yusuf
v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). The factual allegations in the
Amended Complaint and the attached documentary exhibits render implausible
Scott’s claim that the College unlawfully discriminated against him in its
disciplinary action. Scott likewise fails to state a plausible claim of retaliation
since the written materials incorporated into the Amended Complaint
demonstrate that the College had already moved toward expelling Scott before
he filed an affirmative action complaint against the investigating administrator.
See Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 251 (2d Cir. 1995).
We have considered all of Scott’s remaining arguments and find them to
be without merit. Accordingly, for the reasons set forth above, the judgment of
the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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