Rowe v. N.Y.S. Dep't of Taxation and Finance ( 2019 )

18-2302
Rowe v. N.Y.S. Dep’t of Taxation and Finance
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 18th day of September, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
George Rowe,
Plaintiff-Appellant,
v. 18-2302
New York State Department
of Taxation and Finance,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: George Rowe, pro se, Albany, NY.
FOR DEFENDANT-APPELLEE: Barbara D. Underwood, Solicitor General,
Andrea Oser, Deputy Solicitor General,
Jennifer L. Clark, Assistant Solicitor
General of Counsel, for Letitia James,
Attorney General State for the State of New
York, Albany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Hurd, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant George Rowe, proceeding pro se, sued his current employer, the New
York State Department of Taxation and Finance (“NYSTF”) under Title VII of the Civil Rights
Act of 1964, alleging that NYSTF discriminated against him on the basis of race and retaliated
against him when it failed to promote him on various occasions from 1997 to 2017.1 On appeal,
Rowe challenges the District Court’s dismissal of his claims based on acts alleged to have occurred
on or before July 15, 2016 as untimely, and of his remaining disparate treatment and retaliation
claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Forest Park
Pictures v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012).2 The complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although all allegations in the complaint are assumed to be
1
On appeal, Rowe argues that he also intended to assert claims under 42 U.S.C. § 1983.
However, Rowe did not assert § 1983 claims below. This argument is waived because it is
asserted for the first time on appeal. Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir.
2016).
2
Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
footnotes, and citations.
2
true, this tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In reviewing a motion to dismiss, “a district court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
The District Court properly concluded that Rowe’s Title VII claims based on acts alleged
to have occurred on or before July 15, 2016 are time-barred. Title VII requires individuals
aggrieved by acts of discrimination in states like New York that have state or local employment
discrimination enforcement mechanisms to file a charge with the Equal Employment Opportunity
Commission (“EEOC”) within 300 days “after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1). Claims falling outside this statute of limitations are time-
barred unless they are subject to waiver, estoppel, or equitable tolling, Zipes v. Trans World
Airline., Inc., 455 U.S. 385, 393 (1982), or fall within the continuing violation exception to the
300-day rule, Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). Rowe filed
his discrimination charge against NYSTF on May 11, 2017. Accordingly, to be timely, the alleged
acts of discrimination must have occurred after July 15, 2016. The majority of the alleged
discriminatory acts that Rowe discusses in his complaint and supporting documents occurred years
before this date.
Rowe argues that the district court erred in finding that the continuing violation doctrine
did not revive the claims based on these acts. Under the continuing violation doctrine, “if a Title
VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance
of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will
3
be timely even if they would be untimely standing alone.” Chin v. Port Auth. of N.Y. & N.J., 685
F.3d 135, 155-56 (2d Cir. 2012). But the continuing violation doctrine does not apply to discrete
unlawful acts, even if the discrete acts were undertaken “pursuant to a general policy that results
in other discrete acts occurring within the limitations period.” Id. at 157. “[A]n employer’s failure
to promote is by its very nature a discrete act.” Id. The District Court correctly concluded that
Rowe’s complaint, which focused on multiple failures to promote, alleged only a series of discrete
acts of retaliation and discrimination, occurring over the course of more than twenty years and
often separated by years.3 Accordingly, the continuing violation doctrine does not revive the time-
barred claims.
The District Court also did not err in dismissing Rowe’s disparate treatment claims based
on the NYSTF’s failure to promote him between June 2, 2016 and May 10, 2017. At the pleadings
stage, Title VII “requires a plaintiff asserting a discrimination claim to allege two elements: (1)
the employer discriminated against him (2) because of his race, color, religion, sex, or national
origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citing 42 U.S.C. §
2000e-2(a)(1)). A plaintiff may adequately plead this second element “by alleging facts that directly
show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference
of discrimination.” Id. at 87. The District Court correctly found that Rowe failed to make this showing
because he made only conclusory allegations that he was denied promotions due to racial animus,
3
Rowe’s argument that the district court erred in finding that the continuing violation doctrine
did not apply relies on inapposite case law discussing the doctrine as relevant to hostile work
environment claims. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
4
otherwise alleged that nepotism guided some of the hiring decisions concerned, and submitted
documentation showing merely that he was not hired for positions because others were selected. These
allegations neither show nor give rise to a plausible inference of racial animus.
Finally, the District Court did not err in dismissing Rowe’s retaliation claim for failure to
state a claim. To establish a prima facie case of retaliation, an employee must show: “(1) participation
in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected activity and the adverse employment action.”
Littlejohn v. City of New York, 795 F.3d 297, 316 (2d Cir. 2015). The causal connection may be
indirect, made “by showing that the protected activity was followed closely by discriminatory
treatment, or through other circumstantial evidence such as disparate treatment of fellow employees
who engaged in similar conduct,” or direct, “through evidence of retaliatory animus directed against
the plaintiff by the defendant.” Id. at 319. The only protected activity Rowe identified in his filings
occurred in 2003. The District Court correctly held that allegations that Rowe was passed over for
promotions in 2016 and 2017 were too attenuated from the protected activity to plausibly allege a
causal connection between the two.
We have considered all of Rowe’s 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
5