12-2625
Colquitt v. Xerox Corp.
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 1st
day of November, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
AMALYA L. KEARSE,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
Patricia Colquitt,
Plaintiff-Appellant,
v. 12-2625
Xerox Corporation,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Patricia Colquitt, pro se, Ontario,
NY.
FOR DEFENDANT-APPELLEE: Margaret A. Clemens, Littler
Mendelson, P.C., Rochester, NY.
Appeal from the judgment of the United States District Court
for the Western District of New York (Telesca, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Patricia Colquitt, pro se, appeals from
the district court’s final judgment entered in May 2012,
dismissing her action brought pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. She
challenges (1) the court’s October 7, 2010 order granting the
Rule 12(b)(6) motion of Xerox Corporation (“Xerox”) to dismiss
for failure to state a claim on which relief can be granted a)
Colquitt’s gender-based hostile work environment claim and b) her
claims of race-based denial of phone privileges and failure to
promote, and (2) its May 25, 2012 order granting Xerox’s motion
for summary judgment dismissing her remaining claim, asserting a
race-based hostile work environment. We assume the parties’
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
I. Partial Dismissal Pursuant to Rule 12(b)(6)
We review de novo a district court’s grant of a Rule
12(b)(6) motion to dismiss, “accepting all factual claims in the
complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor.” Famous Horse Inc. v. 5th Ave. Photo Inc.,
624 F.3d 106, 108 (2d Cir. 2010). To survive a Rule 12(b)(6)
motion to dismiss, the 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); see also
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim will have
“facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678.
We turn first to Colquitt’s claims that Xerox discriminated
against her by allegedly failing to promote her and denying her
telephone privileges. Below, the district court dismissed these
claims because Colquitt did not include in her Equal Employment
Opportunity Commission (“EEOC”) charge any allegations concerning
Xerox’s failure to promote her or its denial of her workplace
privileges. Administrative exhaustion is “a precondition to
bringing a Title VII action,” Francis v. City of New York, 235
F.3d 763, 768 (2d Cir. 2000) (internal quotation marks omitted),
and, in general, claims that were not presented to the EEOC “may
be pursued in a subsequent federal court action [only] if they
are ‘reasonably related’ to those that were filed with the
agency,” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274
F.3d 683, 686 (2d Cir. 2001) (per curiam) (internal quotation
marks omitted).
Here, the district court properly found that Colquitt’s
failure-to-promote and denial-of-workplace-privileges claims were
not reasonably related to the hostile work environment claims
listed in Colquitt’s EEOC charge because the charge contained no
factual allegations that would have given the agency notice that
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Colquitt sought to pursue a failure-to-promote claim or a claim
that she had been improperly denied workplace privileges. See
Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003). Because such
claims were not administratively exhausted, and because an
amendment to add factual detail to those claims would not cure
this substantive flaw, the district court properly dismissed
those claims without granting leave to replead. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Next, with respect to the district court’s dismissal of her
gender-based hostile work environment claim, Colquitt argues that
the district court erred in applying separate analyses to her
race- and gender-based hostile work environment claims. Not only
did Colquitt fail to raise this argument below, but in her
counseled opposition to Xerox’s motion to dismiss, Colquitt also
separated her gender- and race-based hostile work environment
claims. In so doing, she acknowledged that it was “doubtful”
that her “gender[-based hostile work environment] claim meets the
plausibility standard.” Pl.’s Mem. in Opp. Mot. to Dismiss 6,
ECF No. 20, No. 6:05-cv-06405-MAT-MWP (W.D.N.Y. Oct. 8, 2009).
Given this concession, we decline to address this issue as, “[i]n
general we refrain from passing on issues not raised below.”
Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 446 (2d
Cir. 2006) (internal quotation marks omitted).
We therefore affirm the district court’s October 2010 order
of partial dismissal.
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II. Summary Judgment
We review orders granting summary judgment de novo and focus
on whether the district court properly concluded that there was
no genuine issue as to any material fact and that the moving
party was entitled to judgment as a matter of law. See Miller v.
Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). “In
determining whether there are genuine issues of material fact, we
are required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir. 2003) (internal quotation marks omitted).
Having conducted a de novo review of the record in light of
the above standards, we affirm the district court’s summary
judgment decision on Colquitt’s race-based hostile work
environment claim for substantially the reasons set forth by the
district court in its order of May 25, 2012.
We have considered all of Colquitt’s remaining arguments 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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