16-3064-cv Roy v. Buffalo Philharmonic Orchestra



### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PE RMITTED 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 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 Fole y Square, in the City of New York, on the 23 rd day of March, two thousand seventeen.

Present: R OBERT D. S ACK , D EBRA A NN L IVINGSTON , R AYMOND J. L OHIER , J R ., Circuit Judges.

_____________________________________ P IERRE R OY , Plaintiff-Appellant ,

v. 16-3064

B UFFALO P HILHARMONIC O RCHESTRA , Defendant-Appellee.

_____________________________________ For Plaintiff-Appellant: Pierre Roy, pro se, Amherst, New York. For Defendant-Appellee: Scott Patrick Horton, Bond, Schoeneck & King, PLLC, Buffalo, New York.2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Pierre Roy, pro se, appeals from a judgment of the United States District Court for the Western District of New York (Arcara, J .), entered on August 9, 2016, in favor of the Buffalo Philharmonic Orchestra (“BPO”) in his suit alle ging discrimination, retali ation, and failure to

accommodate in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The district court dismissed Roy’s complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), determining that Roy had faile d to exhaust his administrative remedies by filing a timely Equal Employment O pportunity Commission (“EEOC”) charge within 300 days of the alleged unlawful conduct. The dist rict court further determ ined that Roy was not entitled to equitable tolling. We assume the parties’ familiarit y with the underlying facts, the procedural history of the cas e, and the issues on appeal. We review dismissals pursua nt to Rule 12(b)(6) de novo. Vasquez v. Empress Ambul. Serv., Inc. , 835 F.3d 267, 271 (2d Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), the complaint must plead “enough facts to state a cl aim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the c ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although all allegations contained in the compla int are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.

We conclude that the distri ct court properly dismissed R oy’s complaint on the ground that he filed an untimely EEOC charge. A plainti ff raising an ADA claim of discrimination must3 exhaust all administrative remedies by filing an EEOC charge within 300 days of the alleged discriminatory conduct. Tewksbury v. Ottaway Newspapers , 192 F.3d 322, 325 (2d Cir. 1999). Here, Roy alleged that the last instance of di scriminatory conduct occurred on July 2, 2012, when he was terminated. He was thus required to file his EEOC char ge by April 29, 2013. Roy alleged that he filed his EEOC charge on June 30, 2015, well beyond the 300-day period. Roy’s contention that the 300-day period s hould be equitably tolled on a theory of fraudulent concealment is unavailing. “The filing deadline for the formal [EEOC] complaint is not jurisdictional and, like a statute of limitations, is subject to equitable tolling.” Zerilli-Edelglass v. N.Y.C. Transit Auth. , 333 F.3d 74, 80 (2d Cir. 2003). “[E]quitable tolling is only appropriate in rare and ex ceptional circumstances in which a party is prevented in some extraordinary way from exercising his rights.” Id. (internal quotation ma rks, alterations, and citations omitted). One such ex ceptional circumstance occurs when the “plaintiff [i]s unaware of

his or her cause of action due to mi sleading conduct of the defendant.” Id. This theory of fraudulent concealment warrants equitable tolling if the plaintiff can “show that it would have been impossible for a reasonably prudent pers on to learn that” the defendant’s conduct was discriminatory. Miller v. Int’l Tel. & Tel. Corp. , 755 F.2d 20, 24 (2d Cir. 1985). Roy, however,

had sufficient information to know of his cause of action. He alleged that he was terminated after he told the BPO of his disability and alleged in stances of discriminatory harassment. The court thus properly declined to e quitably toll the 300-day period. In addition, Roy was not entitled to equitabl e tolling because of an alleged delay by the BPO in arbitration proceedings. “[T]he pendenc y of a grievance, or some other method of collateral review of an employment decision, does not toll the running of th e limitations periods.”4 Del. State Coll. v. Ricks , 449 U.S. 250, 261 (1980). Consequently, any delay caused by the arbitration proceedings did not warrant equitabl e tolling. The district court thus properly dismissed Roy’s complaint pursuan t to Rule 12(b)(6). We have considered Roy’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk