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, N.Y. Exec. Law §§ 296 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
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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 N.Y. Educ. Law § 3813,
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. 24 N.Y.3d
721, 727, 730 (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.
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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, 24 N.Y.3d 721 (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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