17‐2443‐cv Staten v. City of New York

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 12th day of March , two thousand eighteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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CLAUDE A. STATEN, Plaintiff‐Appellant,

v. 17‐2443‐cv

CITY OF NEW YORK, Defendant‐Appellee.

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FOR PLAINTIFF‐APPELLANT: CLAUDE A. STATEN, pro se, Middletown, New York.

FOR DEFENDANT‐APPELLEE: JULIE STEINER, Assistant Corporation Counsel (Scott N. Schorr, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Koeltl, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Pro se plaintiff‐appellant Claude A. Staten, a New York City police officer

who identifies as black and Hispanic, sued defendant‐appellee City of New York (the

ʺCityʺ) raising, inter alia, race and age discrimination claims under Title VII of the Civil

Rights Act of 1964 (ʺTitle VIIʺ), 42 U.S.C. § 2000e et seq., and the Age Discrimination in

Employment Act of 1967 (the ʺADEAʺ),

et seq. In a memorandum

opinion and order filed July 10, 2017, the district court dismissed the complaint, on the

Cityʹs motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, reasoning that certain of Statenʹs claims were barred by claim preclusion,

others were time‐barred, and others failed to plausibly allege a Title VII or ADEA

violation. Judgment was entered the same day. We assume the partiesʹ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

This is the third lawsuit filed by Staten against the City complaining of

discrimination in the terms and conditions of his employment. In his first lawsuit, filed

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in 2012, Staten alleged disparate treatment because of the failure of the New York City

Police Department (ʺNYPDʺ) to promote him to sergeant. That case was dismissed on

summary judgment. Staten v. City of New York, No. 12‐cv‐3544,

at *23 (S.D.N.Y. Aug. 7, 2014). In the second case, filed in 2014, Staten again

alleged that the NYPD had unlawfully passed him over for promotion; he also claimed

that he had been given unfavorable assignments and otherwise discriminated and

retaliated against in his employment. The district court ruled that the claims pertaining

to his lack of promotion were claim precluded because Staten could have raised them in

his prior 2012 lawsuit against the City. Staten v. City of New York, No. 16‐cv‐5317,

at *4 (S.D.N.Y. Jul. 10, 2017) (citing Staten v. City of New York, No. 14‐cv‐

4307,

(S.D.N.Y. Jul. 20, 2015)). It otherwise dismissed for failure to

state a claim. Staten,

at *13‐14. This Court affirmed. Staten v. City of

New York, 653 F. Appʹx 78 (2d Cir. 2016). In the instant case, Staten again attempts to

bring similar, if not identical, claims, alleging discriminatory and retaliatory treatment

at the hands of the NYPD.

We review de novo a district courtʹs dismissal of a complaint for failure to

state a claim, construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiffʹs favor.

Chambers v. Time Warner, Inc.,

(2d Cir. 2002). The complaint must

plead ʺenough facts to state a claim to relief that is plausible on its face,ʺ Bell Atl. Corp v.

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Twombly,

(2007), and ʺallow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v. Iqbal,

(2009). Upon such review, we conclude that the district court properly

dismissed Statenʹs claims. We therefore affirm for substantially the reasons stated by

the district court in its thorough July 10, 2017 decision.

Statenʹs race and age discrimination and hostile work environment claims

based on alleged objectionable work assignments in 2016 were not claim precluded by

his prior lawsuits against the City because they alleged independent conduct that

occurred after the judgments in those cases. See TechnoMarine SA v. Giftports, Inc.,

, 499‐500 (2d Cir. 2014). But Statenʹs allegations do not support a race

discrimination claim because his assignments did not constitute adverse employment

actions, see Galabya v. N.Y.C. Bd. of Educ.,

, 640‐42 (2d Cir. 2000), nor do the

allegations suggest that the assignments were part of a campaign of harassment based

on his age or race, see Feingold v. New York,

(2d Cir. 2004).

Staten argues that his claims are not claim precluded or untimely because

they are subject to the continuing violation doctrine. As an initial matter, the

continuing violation doctrine applies only to time‐barred claims, not those that are

claim precluded. See Patterson v. Cty. of Oneida,

, 220 (2d Cir. 2004)

(discussing continuing violation doctrine in relation to timeliness of claims). Under

both the ADEA and Title VII, a plaintiff must file a complaint with the EEOC within 300

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days of a discriminatory act. 42 U.S.C. § 2000e‐5(e)(1) (Title VII);

(d)(1)(B)

(ADEA). Claims outside this window are time‐barred, except when the claims are part

of a continuing violation; otherwise time‐barred claims may proceed when separate acts

ʺcollectively constitute one unlawful employment practice.ʺ Washington v. Cty. of

Rockland,

, 318 (2d Cir. 2004) (citation omitted). However, the doctrine does

not apply to discrete acts of discrimination or retaliation, ʺsuch as termination, failure to

promote, denial of transfer or refusal to hire,ʺ which Staten alleges here. Nat’l R.R.

Passenger Corp. v. Morgan,

(2002).

Finally, Staten raises for the first time on appeal several new claims, which

this Court need not consider. See Harrison v. Republic of Sudan,

(2d Cir.

2016).

We have considered all of Statenʹs 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 of Court

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