14‐268‐cv Cetina v. Westchester County Department of Public Safety Services and Longworth, et al.

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 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 3rd day of September, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. ____________________________________________

LIEUTENANT HENRY CETINA,

Plaintiff‐Appellant,

‐v.‐ 14‐268‐cv

GEORGE N. LONGWORTH, Police Commissioner/Sheriff, JOSEPH J. YASINSKI, Deputy Commissioner, WESTCHESTER COUNTY,

Defendants‐Appellees,

1 WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY SERVICES,

Defendant.

____________________________________________

FOR APPELLANT: KAREN S. BURSTEIN, Law Offices of Karen S. Burstein, New York, NY.

FOR APPELLEES: ADAM RODRIGUEZ, Senior Assistant County Attorney (Robert F. Meehan, on the brief), White Plains, NY.

Appeal from the United States District Court for the Southern District of New York (Nelson S. Román, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Plaintiff‐Appellant Henry Cetina appeals from a December 30, 2013

Memorandum and Order of the United States District Court for the Southern

District of New York (Nelson S. Román, J.) dismissing his Third Amended

Complaint (“TAC”). Cetina principally challenges the dismissal of the majority

of his Title VII claims as untimely or non‐actionable and his

and

claims as failing to state a claim. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues for

review.

2 A Title VII employment discrimination claim must be filed with the Equal

Employment Opportunity Commission (“EEOC”) or New York State Division of

Human Rights (“SDHR”) within 300 days of the alleged unlawful practice. 42

U.S.C. § 2000e. Cetina filed his claim with the appropriate agencies on March 7,

2011. Accordingly, Cetina’s claims are timely so long as the challenged conduct

occurred within 300 days before this date. See Annis v. County of Westchester,

(2d Cir. 1998).

Cetina argues that the statutory period for his failure to promote claim

should not begin to run until August 2010, when the Westchester County

Department of Public Safety (“DPS”) officially announced that another

individual received a promotion that Cetina had sought. However, this Court

has held that the limitations period begins to run when the plaintiff receives

notice of the adverse action. Miller v. Int’l Tel. & Tel. Corp.,

, 23 (2d Cir.

1985); see also Chardon v. Fernandez,

(1981) (per curiam); Del. State

Coll. v. Ricks,

(1980). Because Cetina received notice of this

promotion prior to August 2010—in February 2010— the official announcement

does not control the start of the 300–day period. Accordingly, the district court

properly dismissed Cetina’s Title VII failure to promote claim. The district court

3 also properly dismissed Cetina’s denial of training and assignments claim, and

his harassment claim as untimely.

Cetina alternatively contends that his hostile work environment claim is

timely because the facts underlying it constitute a “continuing violation.” But

this Court has explained that “multiple incidents of discrimination, even similar

ones, that are not the result of a discriminatory policy or mechanism do not

amount to a continuing violation.” Lambert v. Genesee Hosp.,

, 53 (2d

Cir. 1993). Cetina admits that the acts themselves are time barred, but argues

that the resulting investigation into them is part of a continuing violation.

However, the actions Cetina identifies and the investigation that followed are

discrete acts that do not create a continuing violation. See Washington v. County of

Rockland,

(2d Cir. 2004).

As to Cetina’s disparate impact claim, it is also time barred as to Cetina’s

reliance on acts that did not occur within 300 days of his SDHR filing. To the

extent that Cetina hinges his disparate impact claim on the August 2010 overtime

decision, he fails to allege causation: Cetina argues only that part of the benefit of

his job (overtime) was made available to all supervisors in the patrol division,

instead of solely to him. Moreover, Cetina fails to make out a substantial or

4 statistically significant disparity in this change in policy. The district court

correctly dismissed this claim.

Cetina also claims unlawful retaliation under Title VII from his filing of

internal complaints with DPS. However, because Cetina did not raise these

claims in his filing with the SDHR and the EEOC, the claims were not exhausted

and were properly dismissed on this basis. See Williams v. N.Y.C. Hous. Auth.,

(2d Cir. 2006) (per curiam).

Cetina’s Monell claim also fails. His operative complaint concedes in

numerous places that Defendant Westchester County Department of Public

Safety Services had an official policy at odds with the alleged policy that Cetina

challenges. Moreover, Cetina fails to allege facts that, if true, would demonstrate

the existence of a practice so persistent and widespread that it would establish, in

effect, that the municipality was the “moving force” behind the activity. Roe v.

City of Waterbury,

(2d Cir. 2008). Accordingly, the district court

correctly determined that “no facts” revealed or hinted at a pattern of

discrimination through policy, custom, or practice.

In addition, Cetina brings a

equal protection claim against

Deputy Commissioner Yasinski, who informed Cetina in February 2010 that a

5 colleague would receive the promotion Cetina sought, and Commissioner

Longworth, who was head of DPS at that time. To establish a § 1981 claim,

plaintiffs must factually allege that: (1) plaintiffs are members of a racial

minority; (2) defendants acted with intent to discriminate on the basis of race;

and (3) the alleged discrimination involved one of the statute’s enumerated

activities. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,

, 1087 (2d Cir.

1993) (per curiam).

Cetina fails to allege Defendants’ intent to discriminate on the basis of race.

As to Yasinski, the allegations amount to a description of a conversation with

regard to another individual’s promotion over Cetina and a statement that

Yasinski confirmed Cetina’s presence at a training session. The facts involved

therein are insufficient make out a § 1981 claim. This same logic applies to the

claim as to Commissioner Longworth, against whom Cetina alleges even less.

Lastly, the court properly dismissed Cetina’s § 1981 retaliation claim

brought against Longworth and Yasinski in their individual capacities. As

discussed above, Cetina fails to sufficiently allege a causal connection between

the alleged protected activity and subsequent challenged conduct, which he also

6 fails to link to Defendants. Accordingly, the district court properly dismissed

Cetina’s § 1981 retaliation claim against Yasinski and Longworth.

We have considered all of Cetina’s remaining arguments and find them to

be without merit. For the reasons stated above, the judgment of the district court

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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