12‐1819
Setevage v. Department of Homeland Security
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 the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 25th day of September, two thousand thirteen.
4
5 PRESENT:
6 John M. Walker, Jr.,
7 Debra Ann Livingston,
8 Denny Chin,
9 Circuit Judges.
10 _____________________________________
11
12 John Setevage,
13
14 Plaintiff‐Appellant,
15 v. 12‐1819
16
17 Department of Homeland Security,
18 Transportation Security Administration,
19 Federal Air Marshall Service,
20
21 Defendants‐Appellees.
22 _____________________________________
23
24
25 FOR PLAINTIFF‐APPELLANT: John Setevage, pro se, Gales Ferry, CT.
26
1 FOR DEFENDANTS‐APPELLEES: David C. Nelson, Carolyn A. Ikari, Sandra S.
2 Glover, Assistant United States Attorneys, for
3 David B. Fein, United States Attorney for the
4 District of Connecticut, Hartford, CT.
5
6 Appeal from the judgment of the United States District Court for the
7 District of Connecticut (Fitzsimmons, M.J.).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
9 ADJUDGED, AND DECREED that the judgment of the district court is
10 AFFIRMED.
11 Plaintiff‐Appellant John Setevage, pro se, appeals from the judgment of the
12 district court granting the defendants’ summary judgment motion in Setevage’s
13 discrimination action brought under the Age Discrimination in Employment Act
14 (“ADEA”), 29 U.S.C. § 621, et. seq. We assume the parties’ familiarity with the
15 underlying facts, the procedural history of the case, and the issues presented for
16 review.
17 We review orders granting summary judgment de novo. See Miller v.
18 Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). “Summary judgment is
19 appropriate only if the moving party shows that there are no genuine issues of
20 material fact and that the moving party is entitled to judgment as a matter of
21 law.” Id. In determining whether there are genuine issues of material fact, we
2
1 are “required to resolve all ambiguities and draw all permissible factual
2 inferences in favor of the party against whom summary judgment is sought.”
3 Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks
4 omitted). Summary judgment is appropriate “[w]here the record taken as a
5 whole could not lead a rational trier of fact to find for the non‐moving party.”
6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
7 Applying this framework, we conclude that the magistrate judge properly
8 found that: (1) Setevage did not file a formal complaint of age discrimination
9 with the Equal Employment Opportunity Commission (“EEOC”); (2) Setevage’s
10 February 6, 2008 notice of his intent to initiate a civil action in federal court was
11 submitted to the EEOC more than 180 days after both the October 19, 2006 date
12 on which Setevage received a letter informing him he had not been selected for
13 the position and the June 29, 2007 closure date of the vacancy for which Setevage
14 had applied; and (3) Setevage was not entitled to equitable tolling beyond the
15 June 29, 2007 date because he did not present any arguments or evidence that
16 extraordinary circumstances prevented him from exercising his rights after the
17 June 2007 vacancy closure date. See 29 U.S.C. § 633a(d); Zerilli‐Edelglass v. N.Y.C.
18 Transit Auth., 333 F.3d 74, 80‐81 (2d Cir. 2003) (noting that, in order to be entitled
3
1 to equitable tolling, the litigant must both act “with reasonable diligence during
2 the time period she seeks to have tolled” and “prove[ ] that the circumstances are
3 so extraordinary that the doctrine should apply” (internal quotation marks
4 omitted)).
5 On appeal, Setevage argues that the ADEA’s 180‐day time limit began to
6 run at some point between September 19, 2007 and October 19, 2007, which, if
7 applied, would make his February 6, 2008 notice of intent to file a civil action
8 timely. As an initial matter, Setevage did not raise this argument below and we
9 generally refrain from passing on issues not presented to the district court. See,
10 e.g., Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005).
11 Even if we were to consider Setevage’s current argument, moreover, we
12 would find it to be without merit. First, as the Appellees correctly note, the
13 district court was entitled to rely on Setevage’s deposition testimony that he
14 “would have started [the discrimination complaint process] in July of 2007”
15 because the vacancy for the position for which he had applied closed on “June 29,
16 2007.” See Fed. R. Civ. P. 56(c)(1)(A) (stating that a party may support its
17 position that facts are not in dispute by citing to, inter alia, depositions). In
18 addition, to the extent that Setevage now argues that his deposition testimony
4
1 regarding the date on which he learned of the vacancy closure was incorrect, we
2 have held that a party may not seek to create an issue of material fact to defeat a
3 summary judgment motion, by “denying his previously sworn statements.” Heil
4 v. Santoro, 147 F.3d 103, 110 (2d Cir. 1998); see also Trans‐Orient Marine Corp. v.
5 Star Trading & Marine, Inc., 925 F.2d 566, 572‐73 (2d Cir. 1991) (“The rule is
6 well‐settled in this circuit that a party may not, in order to defeat a summary
7 judgment motion, create a material issue of fact by submitting an affidavit
8 disputing his own prior sworn testimony.”).
9 Second, in his counter‐statement of material facts, his response to the
10 defendants’ statement of material facts, and his memorandum of law — all of
11 which were submitted through counsel — Sevetage specifically admitted that he
12 learned that he would not be hired as a Federal Air Marshal on the June 29, 2007
13 vacancy closure date. These assertions of fact constitute judicial admissions to
14 which Setevage remains bound, see Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757
15 F.2d 523, 528‐29 (2d Cir. 1985) (“A party’s assertion of fact in a pleading is a
16 judicial admission by which it normally is bound throughout the course of the
17 proceeding.”), and his complaints about his attorney’s performance do not alter
18 this conclusion, see, e.g., Bergerson v. New York State Office of Mental Health, 652
5
1 F.3d 277, 289 (2d Cir. 2011) (“[A]ll litigants are bound by the concessions of freely
2 retained counsel.” (internal quotation marks omitted)).
3 We have considered all of Setevage’s remaining arguments and find them
4 to be without merit. Accordingly, we AFFIRM the judgment of the district court.
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
6