Pajooh v. N.Y.C. Dep't of Sanitation , 547 F. App'x 73 ( 2013 )

12-4252
Pajooh v. N.Y.C. Dep’t of Sanitation
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 December, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
GUIDO CALABRESI,
Circuit Judges.
_________________________________________
Randy K. Pajooh,
Plaintiff - Appellant,
v. No. 12-4252-cv
Department of Sanitation City of New York,
Local 831 Sanitation Workers Union,
Defendants - Appellees.
_________________________________________
For Plaintiff-Appellant: Randy Pajooh, pro se, Bronx, NY
For Defendants-Appellees: Deborah A. Brenner, Assistant Corporation Counsel,
New York, NY, for the City of New York,
Department of Sanitation
Alan Mark Klinger (Allyson Rucinski and Dina
Kolker, of counsel), Stroock & Stroock & Lavan
LLP, New York, NY, for Local 831 Sanitation
Workers Union
Appeal from a judgment of the United States District Court for the Southern
District of New York (Swain, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Randy Pajooh, proceeding pro se, appeals from a September 27, 2012
judgment entered by the United States District Court for the Southern District of New York
(Swain, J.) dismissing Pajooh’s employment discrimination claims against his former
employer, the New York City Department of Sanitation (“DOS”), and his former union, the
Local 831 Sanitation Workers Union (the “Union”). We assume the parties’ familiarity
with the underlying facts, procedural history of the case, and issues on appeal. “We review
de novo a district court’s dismissal of a complaint under Rule 12(b)(6),” taking “all factual
allegations as true and draw[ing] all reasonable inferences in favor of the plaintiff.” Metz v.
U.S. Life Ins. Co., 662 F.3d 600, 602 (2d Cir. 2011) (per curiam) (internal quotation marks
omitted).
First, we find that Pajooh’s claim against the DOS brought pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), is barred under
principles of claim and issue preclusion. As the district court noted, the allegations in
Pajooh’s Verified Complaint in the New York State Division of Human Rights and the
complaint in this action “emerge from the same set of events and allegations, namely that
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Plaintiff suffered discrimination and retaliation by the DOS on account of his national
origin and race.” Pajooh v. Dep’t of Sanitation City of N.Y., No. 11 Civ. 3116, 2012 WL
4465370, at *3 (S.D.N.Y. Sept. 27, 2012). The New York State Division of Human Rights
dismissed Pajooh’s complaint after finding a lack of evidence to support his allegations;
that determination was upheld by both the New York State Supreme Court and the New
York State Appellate Division, First Department. See Pajooh v. State Div. of Human
Rights, 82 A.D.3d 609 (N.Y. App. Div. 2011). The dismissal of Pajooh’s state action was a
final judgment on the merits of a factually identical claim, and therefore Pajooh is barred
from re-raising those claims here. See Kremer v. Chem. Const. Corp., 456 U.S. 461,
479–85 (1982) (finding a Title VII action precluded in analogous circumstances). Pajooh
likewise previously raised in state court his argument that the Division of Human Rights’
decision was “procured by extrinsic fraud,” and thus he is not entitled to relitigate that
argument here. Accordingly, the district court properly dismissed Pajooh’s Title VII claim
against the DOS.
Second, we agree with the district court that Pajooh’s Title VII claim against the
Union is time-barred for failure to file a charge against the Union with the Equal
Employment Opportunity Commission (“EEOC”) prior to bringing this action. See 42
U.S.C.A. § 2000e-5(f)(1) (limiting complainant’s right to sue to “the respondent named in
the charge”). Although Pajooh included the Union’s name and address in his intake
questionnaire submitted to the EEOC, his descriptions of his claims fail to mention the
Union; Pajooh’s underlying Verified Complaint submitted to the New York State Division
of Human Rights named only the DOS; and the EEOC’s “Right To Sue” letter included
only the DOS as a respondent, having adopted the state proceeding’s findings. Under these
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circumstances, Pajooh failed to provide sufficient notice to the Union that he intended to
assert a discrimination claim against it, and therefore the district court properly found that
Pajooh failed to name the Union as a respondent in his EEOC charge. Additionally,
because there is no identity of interest between the DOS and the Union, as is required to
allow Pajooh to assert his claim against the Union as an unnamed party, Pajooh’s Title VII
claim against the Union was properly dismissed. See Vital v. Interfaith Med. Ctr., 168 F.3d
615, 619–20 (2d Cir. 1999) (affirming dismissal of a Title VII claim where the plaintiff
named only his employer and not his union in his EEOC charge).
Finally, we conclude that the district court did not abuse its discretion in refusing to
exercise jurisdiction over Pajooh’s state law claims after dismissing his Title VII claims, as
“[i]t is well settled that where, as here, the federal claims are eliminated in the early stages
of litigation, courts should generally decline to exercise pendent jurisdiction over
remaining state law claims.” Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464
F.3d 255, 262 (2d Cir. 2006).
We have considered Pajooh’s remaining arguments and find them to be without
merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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