09-4474-cv
Perry v. State of New York Department of Labor
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST C ITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY
ORDER M UST 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 17 th day of September, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
_____________________________________
JESSE PERRY,
Plaintiff-Appellant,
v. 09-4474-cv
STATE OF NEW YORK DEPARTMENT
OF LABOR,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: J ESSE P ERRY, pro se, Albany, New York.
FOR DEFENDANT-APPELLEE: R OBERT C. W EISZ, Assistant Solicitor General
(Andrew M. Cuomo, Attorney General of the
State of New York, Barbara D. Underwood,
Solicitor General, Michael S. Belohlavek,
Senior Counsel, on the brief), New York, New
York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Jesse Perry, pro se, appeals the district court’s judgment
dismissing his amended complaint alleging unlawful discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review de novo a district court’s dismissal for failure to state a claim under
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).
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have
facial plausibility “when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Perry argues that the district court should not have dismissed his retaliation claim
because: (1) the New York State Department of Labor (“DOL”) falsely created the
appearance that the person vacating the employment position he sought had returned to
her position at the DOL, and this created an inference of retaliation; (2) the DOL should
have known about his 2001 termination from a DOL position because he mentioned it in
his 2006 employment application; and (3) the DOL’s conduct in failing to fully disclose
his personnel file in his prior litigation against the DOL gave rise to an inference of
retaliation. However, Perry did not raise the first two of these arguments in the district
court, and we decline to consider them in light of the well established general rule 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).
We reject Perry’s third argument as meritless. Perry does not explain how any
misconduct by the DOL in the prior action is relevant to the present action, particularly in
light of his acknowledgment that he ultimately received his personnel file before the
commencement of the present action. Furthermore, we agree with the district court that
the amended complaint did not allege facts plausibly suggesting a causal connection
between the adverse action and the protected activity, and an independent review of the
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portions of the personnel file that Perry attached to the amended complaint does not
suggest otherwise. Thus, we affirm the dismissal of the retaliation claim for substantially
the same reasons stated by the district court. See Perry v. State of New York Dep’t of
Labor, No. 08 Civ. 4610, 2009 WL 2575713 (S.D.N.Y. Aug. 20, 2009).
We have considered all of Perry’s arguments on appeal and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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