Odom v. Doar

11-3541 Odom v. Doar 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 2 the Second Circuit, held at the Daniel Patrick Moynihan United 3 States Courthouse, 500 Pearl Street, in the City of New York, on 4 the 20th day of September, two thousand twelve. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RICHARD C. WESLEY, 9 Circuit Judges, 10 JOHN GLEESON, 11 District Judge.* 12 _____________________________________ 13 14 Curtis Odom, 15 16 Plaintiff-Appellant, 17 18 v. 11-3541 19 20 Robert Doar, Commr. New York City 21 Human Resources Administration, 22 Mattye Gandel, Office of Collective 23 Bargaining, 24 25 Defendants-Appellees. 26 _____________________________________ 27 28 FOR PLAINTIFF-APPELLANT: Curtis Odom, pro se, Brooklyn, NY. 29 30 * Judge John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 1 FOR DEFENDANT-APPELLEE Fay Ng, Assistant Corporation 2 ROBERT DOAR: Counsel (Pamela Seider Dolgow, 3 James L. Hallman, on the brief) for 4 Michael A. Cardozo, Corporation 5 Counsel for the City of New York, 6 New York, NY. 7 8 FOR DEFENDANT-APPELLEE William D. Buckley, Garbarini & 9 MATTYE GANDEL: Scher, P.C., New York, NY. 10 11 12 Appeal from the judgment of the United States District Court 13 for the Southern District of New York (Cote, J.). 14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 15 DECREED that the judgment of the district court is AFFIRMED. 16 Plaintiff-Appellant Curtis Odom, pro se, appeals from the 17 district court’s judgment dismissing his discrimination claims 18 brought pursuant to Title VII of Civil Rights Act of 1964 (“Title 19 VII”), 42 U.S.C. § 2000e et seq.; the New York State Human Rights 20 Law (“NYSHRL”), N.Y. Exec. Law §§ 290-97; and the New York City 21 Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-101 et 22 seq. Odom asserts that his former employer, the New York City 23 Human Resources Administration (the “Administration”), 24 discriminated against him by terminating his employment in 25 October 2007 on the basis of his race and sex.** We assume the 26 parties’ familiarity with the facts, the procedural history of 27 the case, and the issues on appeal. ** On appeal, Odom has abandoned his claims against Defendant Mattye Gandel. 2 1 As a precondition to filing an action in federal court under 2 Title VII, a litigant must first have filed a timely charge of 3 discrimination with the Equal Employment Opportunity Commission 4 (“EEOC”). See 42 U.S.C. § 2000e-5(e)(1); Francis v. City of New 5 York, 235 F.3d 763, 766-67 (2d Cir. 2000). “[F]iling a timely 6 charge of discrimination with the EEOC is not a jurisdictional 7 prerequisite to suit in federal court, but a requirement that, 8 like a statute of limitations, is subject to waiver, estoppel, 9 and equitable tolling.” Francis, 235 F.3d at 767 (quoting Zipes 10 v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)) 11 (internal quotation marks omitted). In New York, the statute of 12 limitations for filing a charge with the EEOC is 300 days. See 13 42 U.S.C. § 2000e-5(e)(1); Quinn v. Green Tree Credit Corp., 159 14 F.3d 759, 765 (2d Cir. 1998) (abrogated on other grounds). 15 Here, the most recent alleged discriminatory action, Odom’s 16 termination, occurred on October 22, 2007. Because Odom’s EEOC 17 complaint was not filed until nearly three years later, in August 18 2010, it was untimely under Title VII’s 300-day statute of 19 limitations. Similarly, because Odom did not file his federal 20 complaint until January 2011, his claims brought under the New 21 York State Human Rights Law and the New York City Human Rights 22 Law, both of which have a three-year statute of limitations, are 23 also time-barred. See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code 24 § 8-502(d); see also Kassner v. 2nd Ave. Delicatessen, Inc., 496 25 F.3d 229, 238 (2d Cir. 2007). 3 1 On appeal, Odom argues that the above time limits should be 2 equitably tolled. This argument, however, was never presented to 3 the district court and it is a well-established general rule that 4 a court of appeals will not consider an issue raised for the 5 first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 6 120-21 (1976); Virgilio v. City of New York, 407 F.3d 105, 116 7 (2d Cir. 2005) (citing Westinghouse Credit Corp. v. D’Urso, 371 8 F.3d 96, 103 (2d Cir. 2004)). While this rule is not inflexible, 9 and we may in our discretion disregard it when necessary to 10 remedy a manifest injustice, Thomas E. Hoar, Inc. v. Sara Lee 11 Corp., 900 F.2d 522, 527 (2d Cir. 1990), Odom has not adequately 12 explained why he did not raise this issue in the district court 13 after the Administration explicitly moved to dismiss his 14 complaint as time-barred. The complaint, therefore, was 15 appropriately dismissed as time-barred. 16 We have considered all of Odom’s remaining arguments and 17 find them to be without merit. Accordingly, we AFFIRM the 18 judgment of the district court. 19 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 4