15-1837 Carter v. Brennan 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 26 th day of July, two thousand sixteen. PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, Circuit Judges.

_____________________________________ Robert West Carter, Plaintiff-Appellant , v. 15-1837 Megan J. Brennan, Postmaster General, United States Postal Service, Defendant-Appellee .

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FOR PLAINTIFF -APPELLANT: Robert West Carter, pro se, Suffield, CT. FOR DEFENDANT -APPELLEE: Michelle L. McConaghy, A ssistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief ), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.2 Appeal from a judgment of the United States District Court fo r the District of Connecticut (Arterton, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Robert West Carter, proceeding pro se, appeals the distri ct court’s judgment dismissing his complaint, which alleged discrimina tion in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq., for failu re to exhaust his administrative remedies. Carter sued his former employer, the United States Postal Service (“Postal Service”), alleging that he had been fired because of his age. The district court grante d the Postal Service’s motion to dismiss, ruling that Carter had been required to initiate contact with an EEO counselor within 45 days of receiving notice of his termination in March 2009. He did not do so until July 2010, after an arbitrator had upheld his termination. On appeal, Carter ch allenges both the dismissal of his complaint and the court’s denial of his request for appointed couns el. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. We review the district court’s decision de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc ., 282 F.3d 147, 152 (2d Cir. 2002). We review the denial of a motion for appointme nt of counsel for abuse of discretion. Jenkins v. Chem. Bank , 721 F.2d 876, 879 (2d Cir. 1983). Upon review, we conclude that the district court properly dismissed the complaint. We affirm for substantially the reasons stated by the district court in its thorough May 4, 20153 decision. Further, Carter has not shown that the district court abused its discretion by failing to appoint counsel. Carter contends that the court’s order of dismissal is inconsiste nt with its prior ruling that his amended complaint stated a claim. However, the first ruling addressed the sufficiency of his allegations, not whether he had e xhausted his administrative remedies , and the failure to exhaust is an affirmative defense. See Belgrave v. Pena , 254 F.3d 384, 386 (2d Cir. 2001). The Postal Service raised that defense after service of the complaint. For the first time on appeal, Carter argues th at he was employed by the Postal Service through September 2010, relying on a Notificati on of Personnel Action and other documents related to his health insurance coverage. We generally do not c onsider arguments raised for the first time on appeal. See Singleton v. Wulff , 428 U.S. 106, 121 (1976). Even if we were to consider the new argument, it is without meri t, as Carter was on notice of the alleged discriminatory action in March 2009. See 29 C.F.R. § 1614.105(a)(1), (2); cf. Green v. Brennan , — U.S. —, 136 S. Ct. 1769, 1782 (2016) (“[A]n ordinary wrongful-d ischarge claim accrues—and the limitations period begins to run—when the em ployer notifies the employee he is fired, not on the last day of his employment.”). We have considered all of Carter’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