Faktorovich v. Memorial Sloan Kettering Cancer Center

13-4051-cv
Faktorovich v. Memorial Sloan Kettering Cancer Center

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, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 19th day of September, two thousand fourteen.
4
5 PRESENT:
6 DEBRA ANN LIVINGSTON,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 ALISON J. NATHAN,*
10 District Judge.
11 ___________________________________________
12
13 Lyubov Faktorovich,
14
15
16 Plaintiff-Appellant,
17
18 v. 13-4051-cv
19
20 Memorial Sloan-Kettering Cancer Center,
21
22 Defendant-Appellee.
23 ___________________________________________
24
25 FOR PLAINTIFF-APPELLANT: Lyubov Faktorovich, pro se, Brooklyn, NY.
26
27 FOR DEFENDANT-APPELLEE: Terri L. Chase, Jones Day, New York, NY.
28

*
Judge Alison J. Nathan, of the United States District Court for the Southern District of
New York, sitting by designation.
1 Appeal from a judgment of the United States District Court for the Southern District of New

2 York (Griesa, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment is AFFIRMED.

5 Plaintiff-Appellant Lyubov Faktorovich brought an action against her former employer,

6 Memorial Sloan-Kettering Cancer Center (“Sloan-Kettering”), alleging a violation of Title VII of

7 the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. In her charge of discrimination to the

8 Equal Employment Opportunity Commission (“EEOC”), Faktorovich claimed that, after she made

9 (unspecified) critical comments about her supervisor in a survey, the supervisor retaliated by

10 discriminating against her on the basis of her religion and disability. In her complaint in the district

11 court, she alleged that, after her supervisor learned of her survey comments, she faced retaliation and

12 discrimination on the basis of her national origin. Aside from the allegation about the survey, there

13 were no further similarities between the claims in Faktorovich’s EEOC charge and in her federal

14 complaint. The district court dismissed her complaint for failure to exhaust her administrative

15 remedies. We assume the parties’ familiarity with the underlying facts, the procedural history of the

16 case, and the issues on appeal.

17 We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

18 construing the complaint liberally, accepting all factual allegations in the complaint as true, and

19 drawing all reasonable inferences in the plaintiff’s favor. See Chambers v. Time Warner, Inc., 282

20 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that

21 is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ]

22 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

2
1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are

2 assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.

3 The district court did not err in dismissing Faktorovich’s complaint for failure to exhaust

4 administrative remedies because the claims raised in Faktorovich’s complaint were not reasonably

5 related to the claims in her EEOC charge. See Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d

6 Cir. 2001) (holding that a “federal court generally lacks jurisdiction to adjudicate [a] claim” unless

7 the “claim is ‘reasonably related’ to those that the plaintiff did assert before the agency”).

8 Faktorovich’s claim of national-origin discrimination was not alleged in her original EEOC charge.

9 Her claim of retaliation in her prior EEOC charge was also not adequate to notify the agency that

10 she may have been retaliated against based on her claims of national-origin discrimination.

11 In its order, the district court stated that, in her EEOC charge, Faktorovich alleged retaliation

12 arising from her complaint of religious discrimination to a supervisor. The district court might have

13 inferred that this was the basis of her retaliation claim in the EEOC charge because the other bases

14 for discrimination in her EEOC charge were religion and disability. But Factorovich did not specify

15 the basis for her retaliation claim. In her EEOC charge, Faktorovich stated only that the supervisor

16 retaliated against her after she learned of Faktorovich’s unspecified comments in the survey. She

17 did not state in her EEOC charge or in her complaint what those comments were, and there is no

18 indication that she complained of religious discrimination to a supervisor.

19 Despite the district court’s misstatement, it properly held that the claims raised in

20 Faktorovich’s complaint were not reasonably related to the claims in her EEOC charge. See

21 Fitzgerald, 251 F.3d at 359-60 (“A claim is considered reasonably related if the conduct complained

22 of would fall within the scope of the EEOC investigation which can reasonably be expected to grow

3
1 out of the charge that was made.” (citation and internal quotation marks omitted)). Although

2 Faktorovich alleged retaliation arising out of her comments on the survey in both her EEOC charge

3 and in her federal complaint, the factual similarities end there. Before the EEOC, Faktorovich

4 alleged that her supervisor retaliated by discriminating against her based on her religion and

5 perceived mental disability – for instance, by refusing to give her time off for Jewish holidays and

6 ordering her to undergo a psychiatric evaluation. In her federal complaint, however, Faktorovich

7 alleges that after hearing of her survey comments, the supervisor retaliated against her on the basis

8 of her Belorussian national origin by, inter alia, commenting on her poor English skills.

9 Because there is nothing in Faktorovich’s EEOC charge that would have put the agency on

10 notice that she was alleging discrimination on the basis of her national origin, the EEOC cannot

11 reasonably have been expected to investigate whether she was retaliated against based on her claims

12 of discrimination based on national origin. Accordingly, we AFFIRM the judgment of the district

13 court.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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19