13

- 2852

- cv

De La Pena v. Metro. Life Ins. Co.

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 mu st 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 29 th day of January , two thousand fourteen

.

PRESENT: J OSÉ A. C ABRANES
,

R EENA R

AGGI
, S USAN L. C ARNEY
,

Circuit Judges.

_____________________________________

A BDON D E L

A P ENA
,
Plaintiff

- Appellant

,

v. No

. 13

- 2852

- cv

M ETROPOLITAN L IFE I NSURANCE C OMPANY
, S ANG I M
,

Defendant s

- Appellees
,

K ATHY D EAS
,
Defendant.

_____________________________________

FOR PLAINTIFF

- APPELLANT : Alan E. Wolin

, Wolin & Wolin, Jericho, NY

.

FOR DEFENDANT S

- APPELLEE S : Stephen E. Tisman

, Valerie D. Ringel

, Margolis & Tisman LLP

, New York, NY.2

Appeal from a July 12 , 2013 judgment of the United States District Court for the Eastern District of New York (

Arthur D. Spatt

, J

udge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the District C ourt ’s judgment is AFFIRMED

.

Plaintiff

- Appellant Abdon De La Pena (“ De La Pena ”) appeals from the District C ourt’s judgment dismissing his complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 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 a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 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 Warne r, Inc. , 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007), and “allow[ ] the court

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 complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.

Here , an independe nt review of the record and rele vant case law reveals that the District

C ourt pr operly dismissed De La Pena’s claim against the defendants. A plaintiff seeking to recover

under Title VII must file a discrimin ation charge with the EEOC within 300 days of the occurrence of the allegedly unl awful employment practice. See 42 U.S.C. § 2000e

- 5(e)(1). Accordingly, the

District C ourt properly dismissed as time

- barred De La Pena’s Title VII claims based on allegations

of conduct that occurred beyond this 300

- day limitation. De La Pena argues on appeal that such claims are proper pursuant to the so

- called “continuing violation” exception, under which “ a pl aintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing po licy of discrimination extends the limitations period for al l claims of discriminatory acts committed under that poli cy even if those acts, standing alone, would have been barred by the stat ute of limitations.” Lightfoot v. Un ion Carbide Corp. , 110 F.3d 898, 907 (2d Cir. 1997). Yet De La Pena’s allegations of discriminatory treatment and hostile work environment amount to “[d] iscrete inci dents . . . unrelated to an identifiable policy or practice, ” which “will not ordinarily a mount to a continuing violation.” Id. (citation and internal quotations omitted)

.3

The District Court dismissed De La Pena’s timely discrimination claims for failure to raise a facially plausible inference that defendants’ actions were motivated by racial animus. P laintiff contends on appeal that by requiring such an inference the District Court disregarded the Supreme Court’s holding in Swierkiewicz v. So rema N.A.

, 534 U.S. 506 (2002)

, that “an employment discrimination plaintiff need not plead a prima facie case of discrimination

. ” Id. at 515 ; s ee also Twombly , 550 U.S. at 570 (reaffirming the continuing vitality of Swierkiewicz ). Yet the District Court

, with reliance on Swierkiewicz , expressly recognized that De La Pena need not plead facts sufficient to establish a prima fa cie case. That the Court then dismissed plaintiff’s claim for failure to allege facts showing a plausible inference of discrimination is wholly consistent with Swierkiewicz

. The Court simply reached the conclusion that plaintiff’s bald assertions of discrimination

— unsupported by any meaningful comments, actions, or examples of similarly

- situated persons outside of plaintiff’s protected class be ing treated differently

— we re implausible and insufficient to survive a motion to

dismiss.

Finally, plaintiff contends in conclusory fashion that the District Court erred in dismissing his hostile work environment and constructive discharge claims. After review, we conclude that the District Court properly dismissed these claims for the reasons set forth in its comprehensive opinion.

We have considered all of De La Pena ’s arguments and find them to be without merit. Accordingly, we AFFIRM the July 12 , 2013 judgment of the District C ourt.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk