13‐1827
Son v. Lee
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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 21st day of March, two thousand
4 fourteen.
5
6 PRESENT: CHESTER J. STRAUB,
7 ROBERT D. SACK,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
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11
12 YONG CHUL SON,
13
14 Plaintiff‐Appellant,
15
16 v. No. 13‐1827
17
18 CHU CHA LEE, IN SUK SEO, KYUNG TAE HA,
19 GREENLAND PRODUCE & GROCERY, INC.,
20
21 Defendants‐Appellees.
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24
1
1 FOR APPELLANT: Yong Chul Son, pro se, Palisades Park, NJ.
2
3 FOR APPELLEES: No appearance.
4
5 Appeal from a judgment of the United States District Court for the
6 Southern District of New York (Paul G. Gardephe, Judge).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the District Court is AFFIRMED.
9 Plaintiff‐appellant Yong Chul Son, pro se, sued Greenland Produce &
10 Grocery, Inc. (“Greenland”), his former employer, as well as three of his former
11 co‐workers, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
12 et seq. (“Title VII”); the Age Discrimination in Employment Act of 1967, 29 U.S.C.
13 § 621 et seq. (“ADEA”); the Americans with Disabilities Act of 1990, 42 U.S.C.
14 § 12101 et seq. (“ADA”); the New York State Human Rights Law, N.Y. Exec. Law
15 § 290 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C.
16 Admin. Code § 8‐107 et seq. (“NYCHRL”). Son’s federal complaint alleged
17 discrimination on the basis of race, national origin, age, and disability or
18 perceived disability.
19 Before bringing his federal action, Son filed a complaint against Greenland
20 with the New York State Division of Human Rights (“NYSDHR”), alleging
21 discrimination on the basis of race and color in violation of Title VII and the
22 NYSHRL. The NYSDHR found no probable cause to believe that Greenland had
23 discriminated against Son. Son then filed an Article 78 petition in New York
24 State court, seeking to overturn the NYSDHR decision. The State court
2
1 dismissed his petition, finding that the NYSDHR decision was neither erroneous
2 nor an abuse of discretion.
3 In view of these prior administrative and State court proceedings, the
4 District Court dismissed Son’s complaint in its entirety. It held that principles of
5 res judicata barred Son’s Title VII, ADEA, and ADA claims, while Son’s
6 NYSHRL and NYCHRL claims were barred by the election of remedies doctrine
7 under New York Executive Law § 297(9) and New York City Administrative
8 Code § 8‐502(a). We assume the parties’ familiarity with the facts and record of
9 the prior proceedings, to which we refer only as necessary to explain our
10 decision to affirm.
11 We review de novo a district court decision dismissing a complaint
12 pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). Jaghory v. N.Y.
13 State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack
14 of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district
15 court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
16 United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion
17 to dismiss, the complaint must plead “enough facts to state a claim to relief that
18 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
19 claim will have “facial plausibility when the plaintiff pleads factual content that
20 allows the court to draw the reasonable inference that the defendant is liable for
21 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although
22 pro se complaints must contain sufficient factual allegations to meet the
23 plausibility standard, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), courts
24 must afford the litigant “special solicitude, interpreting the complaint to raise the
3
1 strongest claims that it suggests,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2 2011) (quotation marks omitted).
3 District courts generally should not dismiss a pro se complaint “without
4 granting leave to amend at least once when a liberal reading of the complaint
5 gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu,
6 222 F.3d 99, 112 (2d Cir. 2000). Leave to amend is not necessary, however, when
7 it would be futile. See id. “When the denial of leave to amend is based on . . . a
8 determination that amendment would be futile, [we] conduct[] a de novo
9 review.” Nielsen v. Rabin, No. 12‐4313, 2014 WL 552805, at *2 (2d Cir. Feb. 13,
10 2014) (quoting Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir.
11 2011)) (quotation marks omitted).
12 Substantially for the reasons set forth in the District Court’s order dated
13 March 11, 2013, we conclude that dismissal of Son’s complaint was proper and
14 that amendment would have been futile.
15 We have considered all of Son’s remaining arguments and conclude that
16 they are without merit. For the foregoing reasons, the judgment of the District
17 Court is AFFIRMED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
20
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