10-2447-cv
Lomako v. New York Institute of Technology
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.
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 1st day of September, two thousand eleven.
PRESENT:
RALPH K. WINTER,
ROGER J. MINER,
PETER W. HALL,
Circuit Judges.
_____________________________________
Gennady Lomako,
Plaintiff-Appellant,
v. 10-2447-cv
New York Institute of Technology, Heskia Heskiaoff, Ayat Jafari,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: GENNADY LOMAKO, pro se, Brooklyn,
NY.
FOR DEFENDANTS-APPELLEES: ELAN RADAY, Law Offices of Elan
Raday, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Baer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Gennady Lomako, proceeding pro se, appeals from a judgment of the
district court entered on May 14, 2010, the defendants’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) and thereby dismissing Lomako’s first amended complaint, in
which he asserted claims under, inter alia: Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-17 (2006) (“Title VII”); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-
34 (2006) (“ADEA”); the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17 (2006)
(“ADA”); 42 U.S.C. §§ 1985 and 1986 (2006); section 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185(a) (2006); the New York State Human Rights Law, N.Y. Exec.
L. § 296 (McKinney 2010 & Supp. 2011) (“NYSHRL”); and the New York City Human Rights
Law, N.Y.C. Admin. Code § 8-502 (“NYCHRL”). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews de novo the district court’s dismissal of a complaint under Rule
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). To survive a 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). 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
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liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Id.
After an independent review of the record and the relevant case law, we conclude that the
district court properly dismissed Lomako’s complaint for failure to state a claim substantially for
the reasons stated in its May 2010 decision. See Lomako v. New York Inst. of Tech., No. 09 Civ.
6066(HB), 2010 WL 1915041 (S.D.N.Y. May 12, 2010). Specifically, the district court:
(1) properly dismissed as time-barred the Title VII, ADEA, ADA, §§ 1985 and 1986, and LMRA
§ 301 claims; (2) properly dismissed the NYSHRL and NYCHRL claims as barred by the
election-of-remedies provisions of those statutes; (3) did not abuse its discretion by denying
Lomako’s motion for leave to file a second amended complaint; and (4) did not abuse its
discretion by declining to exercise supplemental jurisdiction over the remaining state law claims.
Lomako argues that, under Delaware State College v. Ricks, 449 U.S. 250 (1980), the
relevant accrual date for his Title VII, ADEA, and ADA claims was when he received his
terminal contract on August 22, 2005. However, as the district court correctly determined, the
relevant accrual date was May 23, 2005, when Lomako was notified of the denial of his
reappointment. It was this denial that led to the subsequent issuance of Lomako’s terminal
contract. Lomako’s reliance on Ricks is misplaced. In Ricks, the Supreme Court held that the
limitations period for a professor’s Title VII claim based upon a discriminatory denial of tenure
commenced on the date that the professor was notified of the decision denying him tenure, not
the date of his subsequent termination. See id. at 259. Thus, to the extent that Lomako’s claims
were based upon the decision to deny his reappointment, which resulted in the subsequent
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issuance of his terminal contract, Ricks supports the district court’s conclusion as to the accrual
date.
Lomako argues for the first time on appeal that he was entitled to equitable tolling on the
grounds that New York Institute of Technology (“NYIT”) failed to comply with an Equal
Employment Opportunity Commission (“EEOC”) regulation requiring posting of a notice of
employee rights and that the defendants gave him misleading information. Although we
generally will not consider an issue raised for the first time on appeal, Virgilio v. City of New
York, 407 F.3d 105, 116 (2d Cir. 2005), we may, in our discretion, disregard the general rule
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). Here, Lomako fails to show that the circumstances of
his case warrant a departure from the general rule against review of issues raised for the first
time on appeal. In any event, Lomako’s complaint lacked any factual allegations suggesting that
NYIT violated the EEOC posting requirement or that he did not know of the deadlines and
procedures for filing an EEOC charge. Furthermore, Lomako’s assertion that his union and the
defendants intentionally misled him for the purpose of preventing him from filing a complaint
with the DHR or EEOC is vague and conclusory and does not suggest a plausible basis for
equitable tolling.
We have considered all of Lomako’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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