21

- 6 01 Francois v. N.Y.C. Dep’t of Educ

. 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 OR DER 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 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 25 th da y of October, two thousand twenty

- one
. PRESENT: B ARRINGTON D. P ARKER , S USAN L. C ARNEY , R ICHARD J. S ULLIVAN , Circuit Judges

.

_________________________________________ E UGENIE F RANCOIS , Plaintiff

- Appellant ,

v. No. 21

- 601

N EW Y ORK C ITY D EPARTMENT OF E DUCATION , Defendant

- Appellee

.

_________________________________________ FOR APPELLANT: B RYAN D

. G LASS , Glass Harlow & Hogrogian LLP , New York, NY

. FOR APPELLEE: M AC K ENZIE F ILLOW ( Richard Dearing, Deborah A. Brenner, on the brief ) , for Georgia M. Pestana, Acting Corporation2 Counsel for the City of New York , New York, NY

. Appeal from a judgment of the United States District Court for the Southern District of New York ( Ramos , J. ). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on February 16, 2021 , is
AFFIRMED

. Eugenie Francois , a retired high school teacher who until 201 7 was employed by the New York City Department of Education (the “Department”) , appeals from a judgment of
the d istrict c ourt dismissing under Federal Rule of Civil Procedure 12(b)(6) her employment discrimination claims against the Department alleging violations of the Age Discrimination in Employment Act ( “ ADEA ” ), the New York State Human Rights Law (“NYSHRL”), and
the New York City Human Rights Law (“ NYCHRL ”). 1 The primary issue on appeal is whether the d istrict c ourt erred in determining that Francois’s ADEA claims were untimely

. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, t o which we refer only as necessary to explain our decision to affirm.

We review de novo a district court ’ s grant of a motion to dismiss, including its application of the relevant statute of limitations

. See City of Pontiac Gen. Employees ’ Ret. Sys. v. MBIA, Inc. , 637 F.3d 169, 173 (2d Cir. 2011)

. Because Franc oi s proceeded pro se before the district court, we constru e her complaint liberally, accepting its factual allegations as true, and drawing all reasonable inferences in her favor. Tri estman v. Federal Bureau of Prisons , 470 F.3d 471, 474

– 75 (2d Cir. 2006) ( per curiam )

. Before bringing certain the ADEA claims , a plaintiff must file a complaint with the Equal Employment Opportunity Commission ( “ EEOC ” ) or an equivalent state agency no

1 Our analysis does not address Francois’s NYSHRL and NYCHRL claims because the district court declined to exercise supplemental jurisdiction over these claims after dismissing Francois’s ADEA claim, and that determination is not at issue on appeal.3 later than 300 days after learning of the alleged discriminatory action

. See 29 U.S.C. § 626(d)(1) (B) ; see also Kassner v. 2nd Ave. Delicatessen Inc ., 496 F.3d 229, 237 (2d Cir. 2007)

. Francois ’s claims focus on actions that occurred over several years. The most recent of those actions was the “ineffective” annual rating that her supervisors gave her for the
2016

- 17 school year. A pp

. 16 ( Francois’s Compl. )

. Francois received notice of that rating on October 11, 2017. Although Francois concedes that her EEOC complaint was filed more than 300 days after October 11, 2017, she nevertheless argues that the ADEA’s 300

- day limitations window was not triggered until May 31, 2018, when she learned that the Department den ied
her appeal of the rating . Francois contends that the Department’s denial was an “independent act of discrimination” that occurred within the 300

- day statute of limitations

. Appellant’s Br. at 9. We disagree.

In Delaware State Coll ege v. Ricks , 449 U.S. 250, 261 (1980) , the Supreme Court declared
that the pendency of collateral review of an employment decision do es not extend the time to file an EEOC charge under federal law

. Directly on point here, Ricks held that

t he pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. The existence of careful procedures to assure fairness in the tenure decision should not obscure the prin ciple that limitations periods normally commence when the employer’s decision is made.

Id

. ; see also Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992) (citing Ricks and concluding that the availability of an internal administrative review of an allegedly discriminatory decision “ has no effect on when the statute of limitations period begins to

run ” )

. 2 That Francois was required by state law to exhaust administrative appeals before bringing a state suit to challenge the act complained of is of n o import in this federal ADEA

2 Unles s otherwise noted, in quoting caselaw this O rder omits all alterations, citations, footnotes, and internal quotation marks.4 action. Thus, Franc ois ’s administrative appeal of her ineffective rating d id not toll the 300

- day statute of limitations period or otherwise excuse her failure to timely file her claims

.
In addition, contrary to her contentions, Francois’ s EEOC complaint did not assert that the denial of her appeal constitute d an independent act of discrimination

. Instead, the administrative appeal was an attempt to remedy an alleged discriminatory act that occurred

ou tside of the 300

- day limitations period for her ADEA claim

. R icks instructs that a collateral review of an employment decision “by its nature, is a remedy for a prior decision [and] not an opportunity to influence that decision before it is made

. ” Ricks , 4 49 U.S. at 26 1 (emphasis in original)

. Consequently, “ [t]he proper focus is upon the time of the discriminatory

acts , not upon the time at which the consequences of the acts became most painful.” Id. at 258 (emphasis in original) (internal quotation omitted)

. In line with this instruction , we conclude that the denial of the appeal did not restart the clock for Francois to bring an EEOC charge.
See Morse , 973 F.2d at 125 (concluding that an administrative review of an alleged discriminatory d ecision is not itself a discriminatory act for purposes of the statute of limitations)

. Finally , Francois contends that , combined with the “ineffective” annual rating that she received , certain comments allegedly made by school officials about her before s he retired in August 2017 establish a continu ing violation of the ADEA and saves her claims from the statute of limitations

. The continuing violation doctrine, however, still requires
“some non

- time barred acts contributing to the alleged violation.” Gonzalez v. Hasty , 802 F.3d 212, 220 (2d Cir. 2015) . As discussed above , Francois ’s “ineffective” teacher rating falls outside of the 300

- day window, and the denial of her appeal of that rating neither tolled the limitations period nor constituted an indep endent discriminatory act. Further, the school officials ’ alleged comment s were made by two individuals from February 2014 to September
2016 , long before October 11, 2017

. Thus, the d istrict c ourt did not err in holding that Francois’s ADEA claims are time

- barred.

* * *5 We have considered Francois’s remaining arguments and find in them no basis for
reversal. The judgment of the d istrict c ourt is AFFIRMED

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