Triola v. ASRC Management Services , 487 F. App'x 611 ( 2012 )

12-91-cv
Triola v. ASRC Management Services
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.
PRESENT:
RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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THOMAS J. TRIOLA,
Plaintiff-Appellant,
-v.- 12-91-cv
ASRC MANAGEMENT SERVICES, a wholly
owned subsidiary of Arctic Slope
Regional Corporation, AKA ASRC MS,
TIMOTHY GEITHNER, Secretary, United
States Department of the Treasury,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: ALAN E. WOLIN, Wolin & Wolin,
Jericho, New York.
FOR DEFENDANTS-APPELLEES: JOHN T. BAUER (Lisa M. Griffith, on
the brief), Littler Mendelson,
P.C., Melville, New York, for ASRC
Management Services.
ELLEN LONDON, Assistant United
States Attorney (Neil M. Corwin,
Assistant United States Attorney,
on the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York, for Timothy
Geithner.
Appeal from the United States District Court for the
Eastern District of New York (Korman, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED.
Plaintiff-appellant Thomas Triola appeals from the
district court's December 12, 2011, judgment dismissing his
complaint against defendants-appellees ASRC Management Services
("ASRC") and Timothy Geithner. The district court entered
judgment pursuant to two separate decisions and orders. The
first, dated August 12, 2010, granted ASRC's motion to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). The second, dated December 12, 2011, granted
Geithner's motion to dismiss the complaint pursuant to Rule
12(b)(6) and Rule 12(c).
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
We review dismissal of a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) de novo, "accepting all factual
allegations as true and drawing all reasonable inferences in
favor of the plaintiff." ECA & Local 134 IBEW Joint Pension
Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d
Cir. 2009). We review a district court's grant of judgment on
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the pleadings under Federal Rule of Civil Procedure 12(c) de
novo, Doyle v. Am. Home Prods. Corp., 583 F.3d 167, 170-71 (2d
Cir. 2009), applying the same standards applied under Rule
12(b)(6), Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006). We review denial of leave to amend a complaint for abuse
of discretion. Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d
479, 490 (2d Cir. 2011).
We have conducted an independent review of the record
in light of these principles. For substantially the reasons
stated by the district court in its thorough and well-reasoned
decisions, we conclude that the district court properly dismissed
the complaint and that it did not abuse its discretion in not
granting Triola leave to amend his complaint.1
The district court correctly held that Triola's
retaliation claim based on his prior age discrimination complaint
was not cognizable under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. ("Title VII"). See Bornholdt v. Brady,
869 F.2d 57, 62 (2d Cir. 1989) (noting Title VII does not apply
to plaintiff's reprisal claim based on prior age discrimination
complaints "since that statute governs complaints relating only
to discrimination on the basis of race, color, religion, sex, or
national origin, and not discrimination on the basis of age");
see also Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 586-87
1
Triola asserts that the district court should have
granted his request for leave to amend his complaint. The
district court, however, never expressly denied Triola leave. We
nevertheless construe the court's entry of final judgment in the
case as an effective denial of leave.
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(2004) (noting "Congress chose not to include age within
discrimination forbidden by Title VII"); Lennon v. Rubin, 166
F.3d 6, 8 (1st Cir. 1999) ("We reject [plaintiff's] challenge to
the district court's dismissal of his Title VII claims for
retaliation based on age discrimination complaints.").
Moreover, even assuming Triola's claims were cognizable
under Title VII or that they had been brought under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., we
agree that Triola's claim based on the 2006 job offer rescission
would be time-barred and that his claim based on the 2009 job
application did not plead any "plausible theory of retaliation."
Triola v. ASRC Mgmt. Servs., No. 10-CV-560 (ERK) (ALC), 2010 WL
3218414, at *4 n.2 (E.D.N.Y. Aug. 12, 2010).
We have considered Triola's remaining arguments on
appeal and find them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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