Delaney v. Farley , 623 F. App'x 14 ( 2015 )


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  • 14-4529-cv
    Delaney v. Farley
    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 25th day of August, two thousand fifteen.
    PRESENT: GUIDO CALABRESI,
    REENA RAGGI,
    RICHARD C. WESLEY,
    Circuit Judges.
    ----------------------------------------------------------------------
    BRENDAN DELANEY,
    Plaintiff-Appellant,
    v.                                                    No. 14-4529-cv
    DR. THOMAS FARLEY, in his official capacity as
    Commissioner of the New York City Department of
    Health and Mental Hygiene, DR. LYNN SILVER,
    Assistant Commissioner New York City Department
    of Health and Mental Hygiene and Chair for NYCRx Inc.,
    a Not-for-Profit Organization, CITY OF NEW YORK,
    Defendants-Appellees.
    ----------------------------------------------------------------------
    APPEARING FOR APPELLANT:                         ANTONIA KOUSOULAS, Kousoulas              &
    Associates, P.C., New York, New York.
    APPEARING FOR APPELLEES:                         KATHY CHANG PARK (Pamela Seider
    Dolgow, on the brief), Assistant Corporation
    Counsels, for Zachary W. Carter, Corporation
    Counsel of the City of New York, New York,
    New York.
    Appeal from a judgment of the United States District Court for the Southern
    District of New York (Valerie E. Caproni, Judge).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment entered on November 10, 2014, is AFFIRMED.
    Plaintiff Brendan Delaney appeals the dismissal of his Second Amended
    Complaint, challenging the district court’s determination that his claims for
    discriminatory and retaliatory termination of employment under 42 U.S.C. § 1983, the
    New York State Human Rights Law (“NYSHRL”), and the New York City Human
    Rights Law (“NYCHRL”) are untimely. We review de novo the dismissal of a complaint
    under Fed. R. of Civ. P. 12(b)(6), see Askins v. Doe No. 1, 
    727 F.3d 248
    , 252–53 (2d Cir.
    2013), and may affirm dismissal on any basis supported by the record, see Coulter v.
    Morgan Stanley & Co., 
    753 F.3d 361
    , 366 (2d Cir. 2014). We assume the parties’
    familiarity with the facts and the record of prior proceedings, which we reference only as
    necessary to explain our decision to affirm.
    Each of Delaney’s discrimination and retaliation claims is subject to a three-year
    statute of limitations. See Pearl v. City of Long Beach, 
    296 F.3d 76
    , 79 (2d Cir. 2002)
    (applying three-year statute of limitations to § 1983 claims brought in New York);
    Lightfoot v. Union Carbide Corp., 
    110 F.3d 898
    , 907 (2d Cir. 1997) (applying three-year
    statute of limitations to NYSHRL claims); N.Y.C. Admin. Code § 8-502(d) (applying
    three-year statute of limitations to NYCHRL claims). That period begins to run from
    “the time of the discriminatory act,” Chardon v. Fernandez, 
    454 U.S. 6
    , 8 (1981)
    2
    (emphasis omitted), which in this case is the date when Delaney received, whether orally
    or in writing, “a definite notice of the termination,” Miller v. Int’l Tel. & Tel. Corp., 
    755 F.2d 20
    , 23 (2d Cir. 1985); accord Flaherty v. Metromail Corp., 
    235 F.3d 133
    , 137 (2d
    Cir. 2000).   That is “the date on which defendants ‘had established [their] official
    position—and made that position apparent to [the plaintiff].’” Economu v. Borg-Warner
    Corp., 
    829 F.2d 311
    , 315 (2d Cir. 1987) (quoting Delaware State Coll. v. Ricks, 
    449 U.S. 250
    , 262 (1980)).
    We conclude, as the district court did, that defendants gave Delaney definite notice
    of termination on April 7, 2010. On that date, Dr. Lynn Silver—Delaney’s supervisor
    and one of the individuals responsible for identifying employees who would be laid off,
    see Second Am. Compl. ¶¶ 53, 55, 64—said to Delaney, “I hope you signed up to attend
    a layoff session,” 
    id. ¶ 72.
    Consistent with allegations in his original complaint, Delaney
    conceded at oral argument that in response to this statement, he asked Silver if he was
    being laid off, to which Silver responded, “Yes. It’s the budget.” Compl. ¶ 334. This
    conclusively demonstrates that by April 7, 2010, defendants “had established [their]
    official position—and made that position apparent to” Delaney. Economu v. Borg-
    Warner 
    Corp., 829 F.2d at 315
    (internal quotation marks omitted).
    Delaney nevertheless argues that he did not have definite notice of termination
    until April 28, 2010, when he was informed in writing that his employment would end on
    May 14, 2010. See Second Am. Compl. ¶ 76. We have not identified communication of
    a final work day as an essential component of definite notice of termination.            For
    example, in Economu v. Borg-Warner Corp., we concluded that plaintiff “received . . .
    3
    sufficiently definite” notice as of the date of a meeting at which corporate officers
    informed plaintiff’s lawyer that the company “was no longer interested in [plaintiff’s]
    
    services.” 829 F.2d at 314
    –16. In reaching this conclusion, we did not consider whether
    a specific termination date was communicated to counsel at the meeting.
    Equally unavailing is Delaney’s argument that discussions about budget cuts and
    layoffs were ongoing on April 7, 2010. Indeed, “the mere possibility that the decision
    might be reversed [is] not enough to label it advisory or ineffective for time-bar
    purposes.” Miller v. Int’l Tel. & Tel. 
    Corp., 755 F.2d at 24
    (concluding that plaintiff
    received definite notice of termination when orally informed “that he would, absent
    exceptional circumstances, be removed from the payroll on April 1, 1979,” despite fact
    that personnel department had not yet voted to approve termination). We therefore
    conclude that the applicable three-year statutes of limitations for Delaney’s claims began
    to run on April 7, 2010.
    Delaney argues that this conclusion cannot apply to his sex discrimination claims
    because he did not learn that he was replaced by a female employee until May 24, 2010.
    Delaney does not appear to have raised this argument in the district court and, indeed,
    mentions it only in a footnote in his opening brief to this court. Generally, we do not
    consider arguments raised only in footnotes, see Norton v. Sam’s Club, 
    145 F.3d 114
    ,
    117 (2d Cir. 1998), nor do we consider “issue[s] raised for the first time on appeal,” Otal
    Inv. Ltd. v. M/V Clary, 
    673 F.3d 108
    , 120 (2d Cir. 2012). We see no reason to depart
    from these rules in this case. See In re Nortel Networks Corp. Sec. Litig., 
    539 F.3d 129
    ,
    4
    133 (2d Cir. 2008) (recognizing this court’s “discretion to consider arguments waived
    below” if “necessary to avoid a manifest injustice”).
    Accordingly, all of Delaney’s claims for discriminatory and retaliatory termination
    of employment accrued on April 7, 2010. Because Delaney did not commence this action
    in state court until April 20, 2013, more than three years later, the district court correctly
    concluded that his claims were time-barred.1
    We have considered Delaney’s remaining arguments and conclude that they are
    without merit. Therefore, the district court’s judgment of dismissal is AFFIRMED.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, Clerk of Court
    1
    Delaney also alleges a municipal liability claim against the City of New York on the
    basis that the individuals who made the decision to terminate his employment are
    policymakers. See Second Am. Compl. ¶¶ 101, 107. On appeal, Delaney does not
    challenge the district court’s conclusion that because his underlying constitutional claims
    are time-barred, his claim for municipal liability similarly fails. Accordingly, we need
    not consider Delaney’s argument that his Amended Complaint, in which he first asserted
    his claim for municipal liability, relates back to the date on which he filed his original
    pleading.
    5