Odom v. Doar , 497 F. App'x 88 ( 2012 )

11-3541
Odom v. Doar
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 20th day of September, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges,
10 JOHN GLEESON,
11 District Judge.*
12 _____________________________________
13
14 Curtis Odom,
15
16 Plaintiff-Appellant,
17
18 v. 11-3541
19
20 Robert Doar, Commr. New York City
21 Human Resources Administration,
22 Mattye Gandel, Office of Collective
23 Bargaining,
24
25 Defendants-Appellees.
26 _____________________________________
27
28 FOR PLAINTIFF-APPELLANT: Curtis Odom, pro se, Brooklyn, NY.
29
30
*
Judge John Gleeson, of the United States District Court for
the Eastern District of New York, sitting by designation.
1 FOR DEFENDANT-APPELLEE Fay Ng, Assistant Corporation
2 ROBERT DOAR: Counsel (Pamela Seider Dolgow,
3 James L. Hallman, on the brief) for
4 Michael A. Cardozo, Corporation
5 Counsel for the City of New York,
6 New York, NY.
7
8 FOR DEFENDANT-APPELLEE William D. Buckley, Garbarini &
9 MATTYE GANDEL: Scher, P.C., New York, NY.
10
11
12 Appeal from the judgment of the United States District Court
13 for the Southern District of New York (Cote, J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
15 DECREED that the judgment of the district court is AFFIRMED.
16 Plaintiff-Appellant Curtis Odom, pro se, appeals from the
17 district court’s judgment dismissing his discrimination claims
18 brought pursuant to Title VII of Civil Rights Act of 1964 (“Title
19 VII”), 42 U.S.C. § 2000e et seq.; the New York State Human Rights
20 Law (“NYSHRL”), N.Y. Exec. Law §§ 290-97; and the New York City
21 Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-101 et
22 seq. Odom asserts that his former employer, the New York City
23 Human Resources Administration (the “Administration”),
24 discriminated against him by terminating his employment in
25 October 2007 on the basis of his race and sex.** We assume the
26 parties’ familiarity with the facts, the procedural history of
27 the case, and the issues on appeal.
**
On appeal, Odom has abandoned his claims against Defendant
Mattye Gandel.
2
1 As a precondition to filing an action in federal court under
2 Title VII, a litigant must first have filed a timely charge of
3 discrimination with the Equal Employment Opportunity Commission
4 (“EEOC”). See 42 U.S.C. § 2000e-5(e)(1); Francis v. City of New
5 York, 235 F.3d 763, 766-67 (2d Cir. 2000). “[F]iling a timely
6 charge of discrimination with the EEOC is not a jurisdictional
7 prerequisite to suit in federal court, but a requirement that,
8 like a statute of limitations, is subject to waiver, estoppel,
9 and equitable tolling.” Francis, 235 F.3d at 767 (quoting Zipes
10 v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))
11 (internal quotation marks omitted). In New York, the statute of
12 limitations for filing a charge with the EEOC is 300 days. See
13 42 U.S.C. § 2000e-5(e)(1); Quinn v. Green Tree Credit Corp., 159
14 F.3d 759, 765 (2d Cir. 1998) (abrogated on other grounds).
15 Here, the most recent alleged discriminatory action, Odom’s
16 termination, occurred on October 22, 2007. Because Odom’s EEOC
17 complaint was not filed until nearly three years later, in August
18 2010, it was untimely under Title VII’s 300-day statute of
19 limitations. Similarly, because Odom did not file his federal
20 complaint until January 2011, his claims brought under the New
21 York State Human Rights Law and the New York City Human Rights
22 Law, both of which have a three-year statute of limitations, are
23 also time-barred. See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code
24 § 8-502(d); see also Kassner v. 2nd Ave. Delicatessen, Inc., 496
25 F.3d 229, 238 (2d Cir. 2007).
3
1 On appeal, Odom argues that the above time limits should be
2 equitably tolled. This argument, however, was never presented to
3 the district court and it is a well-established general rule that
4 a court of appeals will not consider an issue raised for the
5 first time on appeal. See Singleton v. Wulff, 428 U.S. 106,
6 120-21 (1976); Virgilio v. City of New York, 407 F.3d 105, 116
7 (2d Cir. 2005) (citing Westinghouse Credit Corp. v. D’Urso, 371
8 F.3d 96, 103 (2d Cir. 2004)). While this rule is not inflexible,
9 and we may in our discretion disregard it when necessary to
10 remedy a manifest injustice, Thomas E. Hoar, Inc. v. Sara Lee
11 Corp., 900 F.2d 522, 527 (2d Cir. 1990), Odom has not adequately
12 explained why he did not raise this issue in the district court
13 after the Administration explicitly moved to dismiss his
14 complaint as time-barred. The complaint, therefore, was
15 appropriately dismissed as time-barred.
16 We have considered all of Odom’s remaining arguments and
17 find them to be without merit. Accordingly, we AFFIRM the
18 judgment of the district court.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
4