Boyar v. Yellen ( 2022 )

21-507-cv
Boyar v. Yellen
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 ASUMMARY ORDER@). A PARTY CITING TO 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 13th day of January, two thousand twenty-two.
PRESENT:
SUSAN L. CARNEY,
STEVEN J. MENASHI,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
Allen Grant Boyar,
Plaintiff-Appellant,
v. 21-507
Janet L. Yellen, Secretary of the Department of
the Treasury, Internal Revenue Service,
Defendant-Appellee.*
____________________________________
FOR PLAINTIFF-APPELLANT: ALLEN GRANT BOYAR, pro se, Buffalo, NY.
FOR DEFENDANT-APPELLEE: MICHAEL S. CERRONE, Assistant United
States Attorney, for Trini E. Ross, United
* Janet L. Yellen, the current Secretary of the Department of the Treasury, is automatically substituted as the
Defendant-Appellee in this case pursuant to Federal Rule of Appellate Procedure 43(c)(2). The Clerk of Court is
directed to amend the case caption to conform to the above.
States Attorney for the Western District of
New York, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Sinatra, J.; Roemer, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Allen Boyar, proceeding pro se, sued his former employer, the Internal
Revenue Service (“IRS”), for disparate treatment, hostile work environment, and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. A United States Magistrate Judge
recommended granting the IRS’s motion to dismiss the complaint for failure to exhaust
administrative remedies with respect to Boyar’s retaliation claim and failure to state a claim with
respect to the remaining claims. The district court adopted the recommendation and dismissed
the complaint. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal, to which we refer only as necessary to explain our
decision to affirm.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all 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). To survive a motion to dismiss under Rule 12(b)(6), the complaint
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
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claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678.
I. Retaliation
The district court properly dismissed Boyar’s retaliation claims. We “liberally construe
pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest
arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)
(per curiam) (internal quotation marks omitted). Federal Rule of Appellate Procedure 28(a)
requires all appellants in their briefs to provide the court with a clear statement of the issues on
appeal. Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (per curiam). Therefore, “[i]ssues
not sufficiently argued in the briefs are considered waived and normally will not be addressed on
appeal.” Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
Here, Boyar’s brief fails to address the primary reason given by the district court for
dismissing his retaliation claims: that he failed to exhaust his administrative remedies. Instead,
he merely argues that he alleged sufficient facts to state a retaliation claim, asserting conclusorily
that he faced adverse actions because he sought to have his manager replaced. By failing
meaningfully to address the district court’s exhaustion ruling, Boyar has waived his challenge to
that aspect of the district court’s decision. See Norton, 145 F.3d at 117.
Moreover, even if we were to excuse the waiver and address the merits, we would conclude
that the district court properly dismissed Boyar’s retaliation claims for failure to exhaust
administrative remedies. Federal employees are required to timely exhaust administrative
remedies before they may file a lawsuit in federal district court under Title VII or the ADEA.
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Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (per curiam). A claim not raised in an Equal
Employment Opportunity Commission (“EEOC”) charge may be brought in federal court only if
it is “reasonably related” to the claim filed with the EEOC. Williams v. N.Y.C. Housing Auth.,
458 F.3d 67, 70 (2d Cir. 2006) (internal quotation marks omitted). “A claim is considered
reasonably related if the conduct complained of would fall within the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge that was made.”
Fitzgerald v. Henderson, 251 F.3d 345, 359–60 (2d Cir. 2001) (internal quotation marks omitted).
Here, Boyar’s retaliation claims were neither exhausted nor reasonably related to the
allegations made in Boyar’s discrimination charge. Boyar did not check the box on the charge
form indicating he was asserting a claim of retaliation. He made no factual allegations that would
suggest retaliation of any kind. Indeed, in his EEOC allegations he did not refer to the two
incidents that he asserts in his complaint were retaliatory (these were management reports that he
had violated the office dress code and sexually harassed a coworker). Because those incidents
were not even mentioned, the EEOC would not have had any basis to investigate an allegation of
retaliation. See Williams, 458 F.3d at 70 (“The central question is whether the complaint filed
with the EEOC gave that agency adequate notice to investigate discrimination on both bases.”
(internal quotation marks omitted)). Therefore, Boyar did not exhaust his administrative remedies
and the district court appropriately dismissed his retaliation claims.
II. Disparate treatment
The district court also properly dismissed Boyar’s disparate treatment claims. “[T]o
defeat a motion to dismiss . . . in a Title VII discrimination case, a plaintiff must plausibly allege
that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or
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national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). To state an ADEA claim, a plaintiff must allege
sufficient facts to show that age was the “but-for” cause of the employer’s adverse acts. Lively v.
WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021).
Boyar did not allege any facts to support his claims that his sex, religion, national origin,
or age was a motivating factor or but-for cause of the IRS’s decision to terminate his employment.
The EEOC decision attached to his complaint concluded that his employment was terminated for
cause—namely, his poor performance and dress code violation. Boyar argues that three members
of his supervisor’s team were treated more favorably than he was; all were under age 40, and none
shared Boyar’s religion or national origin. But he alleged no facts showing that these employees
were suitable comparators: he did not allege that they engaged in similar disapproved behaviors at
work or had similarly poor performance. See Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir.
2014) (“In the context of employee discipline, . . . the plaintiff and the similarly situated employee
must have engaged in comparable conduct, that is, conduct of comparable seriousness.” (internal
quotation marks omitted)). Therefore, the district court properly dismissed Boyar’s disparate
treatment claims.
III. Hostile work environment
In addition, the district court properly dismissed Boyar’s hostile work environment claims.
To state a hostile work environment claim, “a plaintiff must plead facts that would tend to show
that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an
environment that a reasonable person would find hostile or abusive; (2) creates an environment
that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment
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because of the plaintiff’s [protected class].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)
(internal quotation marks omitted) (describing standard under Title VII for sex-based hostile work
environment claim); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d Cir. 2007)
(describing standard under the ADEA for age-based hostile work environment claim).
Boyar’s factual allegations are not sufficient to state a plausible hostile work environment
claim. He alleged that his supervisor (1) told him to go back to his desk or she would “[w]ring
[his] neck”; (2) yelled at him demanding his employee identification number “now”; (3) ignored
him at a meeting; (4) yelled at him “very loudly”; and (5) told him he had 90 minutes to complete
two certification exams, when he had 60 minutes to complete each. Gov’t App’x at 9. Whether
viewed alone or in the aggregate, these incidents were not severe or pervasive enough to establish
an objectively hostile work environment. See Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 102
(2d Cir. 2020) (“Title VII is not a general civility code but rather forbids only behavior so
objectively offensive as to alter the conditions of the victim’s employment.” (internal quotation
marks omitted)); Littlejohn v. City of New York, 795 F.3d 297, 320–21 (2d Cir. 2015) (“To
establish a hostile work environment . . . a plaintiff must show that the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.” (internal
quotation marks omitted)). Moreover, Boyar did not allege any facts at all that would support the
inference that the behavior he complains of was because of his age, sex, religion, or national origin.
See Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must . . .
demonstrate that [he or] she was subjected to the hostility because of . . . membership in a protected
class.”).
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***
We have considered all of Boyar’s remaining arguments and find in them no basis for
reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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