09-2581-cv
C herry v. C ity of N ew Y ork
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULING S BY SUM M AR Y ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUM M AR Y O RD ER FILED O N O R A FTER
J A N UA RY 1, 2007, IS PER M ITTED A ND IS G O VER NED BY F EDERAL R ULE OF A PPELLATE P ROCEDU RE 32.1 A N D TH IS C O U R T ’ S
L OC AL R ULE 32.1.1. W H EN CITIN G A SU M M A RY O RD ER IN A D O CU M EN T FILED W ITH TH IS C O U RT , A PA RT Y M UST CITE
EITHER THE F EDERAL A PPEND IX O R A N ELECTRONIC D ATAB ASE ( W ITH TH E N O TA TIO N “ SUM M AR Y O RD ER ”). A PARTY
CITING A SUM M AR Y O RD ER M UST SERVE A C OPY O F IT ON A NY PARTY N OT REPRESENTED BY CO UN SEL .
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18th day
of June, two thousand and ten.
PRESENT:
WILFRED FEINBERG,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_______________________________________________
Bernard Cherry,
Plaintiff-Appellant,
v. 09-2581-cv
City of New York, et al.,
Defendants-Appellees.
______________________________________________
For Appellant: BERNARD CHERRY, pro se,
Bronx, New York.
For Appellees: SCOTT SCHORR, City of New
York Law Department, New York,
New York.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Bernard Cherry, pro se, appeals from the judgment of the United
States District Court for the Eastern District of New York (Cogan, J.), dismissing Appellant’s
employment discrimination claims. We assume the parties’ familiarity with the facts and
procedural history.
We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of
Civil Procedure 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). “[T]he pleadings of pro se litigants
should be construed liberally, and should not be dismissed unless it is clear that the plaintiff
would not be entitled to relief under any set of facts that could be proved consistent with the
allegations.” Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir. 2005) (citations and internal
quotation marks omitted).
A litigant must have filed a timely charge (subject to possible enlargement by way of
equitable estoppel, waiver, or tolling) with the Equal Employment Opportunity Commission and
corresponding state agencies as a condition precedent to the filing of an action in federal court
pursuant to the Age Discrimination in Employment Act, Americans with Disabilities Act, or
Title VII of the Civil Rights Act. See 29 U.S.C. § 626(d); 42 U.S.C. § 12117(a) (adopting the
filing requirements of 42 U.S.C. § 2000e-(5)); see also Dalessandro v. Monk, 864 F.2d 6, 8 (2d
Cir. 1988) (ADEA); Francis v. City of New York, 235 F.3d 763, 766-67 (2d Cir. 2000) (citing
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), for the proposition that a Title VII
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claim is time-barred if the plaintiff fails to file a timely EEOC charge). In New York, where the
New York State Division of Human Rights (“NYSDHR”) addresses claims of employment
discrimination, the statute of limitations for filing a claim with the EEOC is 300 days. See 42
U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d)(2); Quinn v. Green Tree Credit Corp, 159 F.3d 759,
765 (2d Cir. 1998) (Title VII); Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164, 166 (2d Cir.
1998) (ADEA).
Here, the most recent alleged discriminatory action, i.e., Appellant’s termination,
occurred on March 15, 2007, and he learned of the termination on March 22, 2007. Because
Appellant’s NYSDHR complaint was not filed until a year later in March 2008, it was untimely.
See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996) (holding that
timeliness is measured from the date the employee receives notice of the discriminatory
decision). Appellant asserts that his NYSDHR charge was timely because he had submitted
complaints through both the internal Department of Corrections (“DOC”) grievance procedures
and through his union. That argument is unavailing, however, as “the pendency of a grievance,
or some other method of collateral review of an employment decision, does not toll the running
of the limitations periods.” Del. State Coll. v. Ricks, 449 U.S. 250, 261 (1980); see also Int’l
Union of Elec., Radio and Mach. Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429
U.S. 229, 234-36 (1976) (holding that the filing deadline is not tolled during the pendency of
grievance or arbitration procedures).
Finally, Appellant appears to assert that he was misled into waiting for completion of the
DOC’s investigation, and he argues that we should excuse his untimely complaint because the
delay was not his fault. This argument, however, was not presented before the district court.
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The well established general rule is that a court of appeals will not consider an issue raised for
the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976); see also Virgilio v.
City of New York, 407 F.3d 105, 116 (2d Cir. 2005) (citing Westinghouse Credit Corp. v.
D'Urso, 371 F.3d 96, 103 (2d Cir. 2004)). The rule is not an absolute bar to raising new issues
on appeal, and the Court may in its discretion disregard it when necessary to remedy manifest or
obvious injustice. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir.
1990). Appellant, nonetheless, does not explain why he did not assert this argument before the
district court, and he has not established manifest or obvious injustice sufficient for us to
exercise our discretion to consider the issue.
Additionally, even if we were to consider the argument, it is without merit. Equitable
tolling is only appropriate in “rare and exceptional circumstance[s],” such as when a party “is
prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. New York
City Transit Auth., 333 F.3d 74, 80 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000),
and Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)). In determining if equitable tolling
should apply, the court should consider whether the plaintiff (1) has acted with reasonable
diligence during the time period he seeks to have tolled and (2) has proved extraordinary
circumstances justifying application of the doctrine. Id. at 80-81. Appellant’s only argument in
favor of equitable tolling is that he was misled by his union and/or DOC. While the documents
that Appellant has submitted indicate that he was diligent in seeking resolution of his dispute
through DOC and his union, he has not asserted, much less established, that extraordinary
circumstances justify application of the equitable tolling doctrine. See id. Moreover, nothing in
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the record supports Appellant’s claim of a conspiracy or shows that there existed exceptional
circumstances sufficient to excuse his delay. Id.
We have reviewed Appellant’s remaining arguments and find them to be without merit.
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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