16-1391-cv
Hardy v. Pepsi-Cola Bottling Company
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
ASUMMARY 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of May, two thousand seventeen.
Present:
JOHN M. WALKER JR.,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
WAYNE L. HARDY,
Plaintiff-Appellant,
v. 16-1391
PEPSI-COLA BOTTLING COMPANY OF NEW YORK,
INC.,
Defendant-Appellee.
_____________________________________
For Plaintiff-Appellant: WAYNE L. HARDY, pro se, Hempstead, New York
For Defendant-Appellee: ANTHONY MINGIONE, Anna K. Svensson (on the
brief), Blank Rome LLP, New York, New York
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Wayne L. Hardy, proceeding pro se, appeals from a judgment of the
United States District Court for the Southern District of New York (Caproni, J.), entered on
March 31, 2016, in favor of his former employer Pepsi-Cola Bottling Company of New York
(“PCNY”), in his employment discrimination and retaliation suit under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12183(a). We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court’s grant of summary judgment. Garcia v. Hartford
Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Upon review, we conclude that the
district court properly granted summary judgment to PCNY. Except as noted below, we affirm
for substantially the reasons stated by the district court in its thorough decision. See Hardy v.
Pepsi Bottling Co. of N.Y., Inc., No. 14-CV-4007 (VEC), 2016 WL 1301181 (S.D.N.Y. Mar. 31,
2016).
The district court did not explicitly address Hardy’s claim that PCNY retaliated against
him for filing a workers’ compensation claim. Nonetheless, this claim was properly dismissed
because Hardy could not bring a workers’ compensation retaliation claim in district court. The
Workers’ Compensation Board has exclusive jurisdiction over any claims for violation of New
York’s Workers’ Compensation Law, including claims that an employer retaliated against an
employee for filing for workers’ compensation. See Isabella v. Koubek, 733 F.3d 384, 392 (2d
Cir. 2013) (exclusive jurisdiction); N.Y. Workers’ Comp. Law § 120 (retaliation claims).
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Hardy argues for the first time on appeal that the arbitrator violated New York’s Workers’
Compensation Law and the collective bargaining agreement. Generally, we do not consider
issues raised for the first time on appeal, and there is no reason to do so here. See Harrison v.
Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016).
Finally, the district court did not abuse its discretion in denying Hardy’s motions for
counsel. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.
1988) (reviewing the denial of counsel for abuse of discretion); Hodge v. Police Officers, 802
F.2d 58, 61 (2d Cir. 1986) (stating that a “threshold requirement” to appoint counsel is that “the
indigent’s position [must] seem[] likely to be of substance”).
We have considered all of Hardy’s 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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