22-587 Rosado v. Port Auth. of N.Y. & N.J.

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 16th day of February, two thousand twenty-four.

PRESENT:

PIERRE N. LEVAL, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _______________________________________________________

VICTOR ROSADO,

Plaintiff-Appellant,

v. No. 22-587

PORT AUTHORITY OF NEW YORK AND NEW JERSEY,

Defendant-Appellee. ∗ ________________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: VICTOR ROSADO, pro se, Chester, NY.

For Defendant-Appellee: MEGAN LEE, Port Authority Law Department, New York, NY.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Analisa Torres, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Victor Rosado, proceeding pro se, appeals from the district court’s grant of

summary judgment in favor of his former employer, the Port Authority of New

York and New Jersey (the “Port Authority”), on Rosado’s claims under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with

Disabilities Act (“ADA”),

et seq., and

. We

assume the parties’ familiarity with the facts, procedural history, and issues on

appeal, which we refer to only as necessary to resolve this appeal.

On January 11, 2019, Rosado – who was represented by counsel at the time

– commenced the instant case, alleging that the Port Authority discriminated

2 against him on the basis of his national origin, ethnicity, and disability status and

retaliated against him when he expressed his concerns about this disparate

treatment. The district court granted summary judgment in favor of the Port

Authority, concluding that several of Rosado’s proffered unsworn declarations

were inadmissible; that certain of his claims were time-barred because he failed

to timely file a charge with the Equal Employment Opportunity Commission (the

“EEOC”); that he failed to administratively exhaust his ADA claim; and that he

otherwise failed to establish a racial discrimination or retaliation claim. 1 On

appeal, Rosado argues that the district court erred in dismissing his claims as

time-barred, in granting summary judgment as to his ADA claim, and in failing

to require the Port Authority to disclose exhibits that Rosado claims were never

provided to him or his counsel. For the reasons set forth below, we disagree.

I. Title VII and Section 1981 Claims

Though we “liberally construe pleadings and briefs submitted by pro se

litigants, reading such submissions to raise the strongest arguments they

1 The district court additionally dismissed Rosado’s claims pursuant to the New York State Human Rights Law and the New York City Human Rights Law on the basis that Rosado withdrew those claims in his counseled opposition to the Port Authority’s motion for summary judgment. Rosado does not challenge the dismissal of those claims on appeal.

3 suggest,” McLeod v. Jewish Guild for the Blind,

(2d Cir. 2017)

(internal quotation marks omitted), pro se appellants must still comply with

Federal Rule of Appellate Procedure 28(a), which requires appellants “to provide

the court with a clear statement of the issues on appeal,” Moates v. Barkley,

(2d Cir. 1998). Accordingly, a pro se litigant will be deemed to

have “abandon[ed] an issue by failing to address it in [his] appellate brief.”

Green v. Dep’t of Educ. of City of N.Y.,

(2d Cir. 2021); see also

LoSacco v. City of Middletown,

(2d Cir. 1995) (“[W]e need not

manufacture claims of error for an appellant proceeding pro se.”); Terry v. Inc.

Vill. of Patchogue,

, 632–33 (2d Cir. 2016) (“Although we accord filings

from pro se litigants a high degree of solicitude, even a litigant representing

himself is obliged to set out identifiable arguments in his principal brief.”

(internal quotation marks omitted)). Furthermore, we will not decide issues

that a pro se appellant raises in his brief only “obliquely and in passing.”

Gerstenbluth v. Credit Suisse Secs. (USA) LLC,

, 142 n.4 (2d Cir. 2013).

Rosado’s brief does not address the merits of the district court’s grant of

summary judgment as to his Title VII and section 1981 claims. Instead, he

argues only that the district court’s conclusion regarding the timeliness of his

4 EEOC charge was erroneous and that he was discriminated against in violation

of the ADA. Although he once identifies a doctor who treated him as a “policy

maker or decision maker” for the Port Authority and briefly mentions several

specific summary judgment exhibits, Rosado Br. at 4–6, Rosado does not explain

how those points are relevant to any of his claims or address the district court’s

determination that he failed to show how the alleged discrimination was the

result of a policy or custom. Because Rosado fails to address the substance of

the district court’s decision granting summary judgment as to his Title VII and

section 1981 claims in his brief on appeal, we must conclude that he has

abandoned any challenge to these aspects of the district court’s judgment. See

Green,

; LoSacco, 71 F.3d at 92–93; Gerstenbluth,

n.4.

II. ADA Claim

Although Rosado does not explicitly challenge the district court’s

conclusion that he failed to administratively exhaust his ADA claim, he generally

argues that the Port Authority “violated [his] disability rights” by “not following

the [ADA’s] rules and regulations . . . regarding disabilities and

accommodations.” Rosado Br. at 8, 10. We will therefore liberally construe his

5 brief as challenging the district court’s dismissal of his ADA claim for failure to

exhaust.

As with claims under Title VII, plaintiffs asserting claims under the ADA

must first file a charge of discrimination with the EEOC. See

(a)

(adopting, among other procedures, the exhaustion requirements of Title VII);

Soules v. Conn., Dep’t of Emergency Servs. & Pub. Prot.,

(2d Cir. 2018)

(“Ordinarily, a plaintiff seeking to bring a claim pursuant to the [ADA] . . . must

exhaust administrative remedies through the EEOC.”). Here, the record reflects

that Rosado filed a charge with the EEOC in September 2018, complaining of

racial and ethnic discrimination and retaliation. Although the charge

referenced discrimination and retaliation claims related to Rosado’s “[r]ace,”

“[e]thnicity,” and “[c]olor,” Supp. App’x at 562, it did not make any reference to

Rosado’s alleged disability.

In his memorandum in opposition to summary judgment, Rosado’s then-

counsel argued that certain of Rosado’s claims were “[r]easonably related” to the

conduct discussed in his EEOC charge, and that the EEOC permits “loose

pleading.” Dist. Ct. Doc. No. 88 at 5 (alterations omitted). We agree with the

district court that Rosado failed to demonstrate that his ADA claim was

6 reasonably related to the claims set forth in his EEOC charge, and that he

therefore failed to exhaust his ADA claim.

Claims not asserted before the EEOC may still be pursued in a

subsequent federal action if they are “reasonably related to those that were filed

with the agency.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,

(2d Cir. 2001) (internal quotation marks omitted). “A claim is considered

reasonably related if the conduct complained of would fall within the scope of

the EEOC investigation which can reasonably be expected to grow out of the

charge that was made.” Deravin v. Kerik,

, 200–01 (2d Cir. 2003)

(internal quotation marks omitted). We have described this exception as

“essentially an allowance of loose pleading” in light of the fact that most

employees do not have the benefit of counsel while filing a charge with the

EEOC.

(internal quotation marks omitted).

In this case, none of the acts of discrimination alleged in Rosado’s

September 2018 EEOC charge overlapped with or involved the same acts raised

in connection with his ADA claim. A claim of disability discrimination is

conceptually distinct from a claim of racial discrimination, see

and Rosado

did not allege any facts in his EEOC charge that would have given the agency

7 reason to investigate a disability claim. We therefore cannot conclude that the

district court erred in dismissing Rosado’s ADA claim. 2

III. Remaining Arguments

Rosado argues that the Port Authority did not disclose certain exhibits to

him or his attorney during discovery but relied on them for the purposes of

summary judgment. But Rosado’s attorney did not object to the use of these

exhibits. We therefore decline to consider this issue. See Virgilio v. City of New

York,

(2d Cir. 2005) (“In general we refrain from passing on

issues not raised below.” (internal quotation marks omitted)).

Finally, Rosado filed a “motion to appeal” in this Court, asserting that the

district court did not fully examine the summary judgment evidence and that the

Port Authority failed to accommodate his disability. As discussed above,

Rosado has failed to identify any way in which the district court erred in granting

summary judgment in favor of the Port Authority. The motion is therefore

denied.

2 Because Rosado’s appellate brief addresses only his ADA claim and we agree with the district court that his ADA claim was unexhausted, we need not reach his argument that his claims were timely since he began seeing a Port Authority doctor in January 2018.

8 We have considered Rosado’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court and

DENY Rosado’s pending motion.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9