12-91-cv

Triola v. ASRC Management Services

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 "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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 3rd day of July, two thousand twelve.

PRESENT:

RALPH K. WINTER, 

CHESTER J. STRAUB, 

DENNY CHIN, 

Circuit Judges.

- - - - - - - - - - - - - - - - - -x

THOMAS J. TRIOLA,

Plaintiff-Appellant, 

 -v.- 12-91-cv 

ASRC MANAGEMENT SERVICES, a wholly

owned subsidiary of Arctic Slope

Regional Corporation, AKA ASRC MS,

TIMOTHY GEITHNER, Secretary, United

States Department of the Treasury,

Defendants-Appellees.

- - - - - - - - - - - - - - - - - -x

FOR PLAINTIFF-APPELLANT: ALAN E. WOLIN, Wolin & Wolin,

Jericho, New York. 

FOR DEFENDANTS-APPELLEES: JOHN T. BAUER (Lisa M. Griffith, on

the brief), Littler Mendelson,

P.C., Melville, New York, for ASRC

Management Services.

ELLEN LONDON, Assistant United

States Attorney (Neil M. Corwin,

Assistant United States Attorney,
-2-

on the brief), for Preet Bharara,

United States Attorney for the

Southern District of New York, New

York, New York, for Timothy

Geithner.

Appeal from the United States District Court for the

Eastern District of New York (Korman, J.). UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.

Plaintiff-appellant Thomas Triola appeals from the

district court's December 12, 2011, judgment dismissing his

complaint against defendants-appellees ASRC Management Services

("ASRC") and Timothy Geithner. The district court entered

judgment pursuant to two separate decisions and orders. The

first, dated August 12, 2010, granted ASRC's motion to dismiss

the complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). The second, dated December 12, 2011, granted

Geithner's motion to dismiss the complaint pursuant to Rule

12(b)(6) and Rule 12(c).

We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

We review dismissal of a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) de novo, "accepting all factual

allegations as true and drawing all reasonable inferences in

favor of the plaintiff." ECA & Local 134 IBEW Joint Pension

Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d

Cir. 2009). We review a district court's grant of judgment on
1 Triola asserts that the district court should have

granted his request for leave to amend his complaint. The

district court, however, never expressly denied Triola leave. We

nevertheless construe the court's entry of final judgment in the

case as an effective denial of leave.

-3-

the pleadings under Federal Rule of Civil Procedure 12(c) de

novo, Doyle v. Am. Home Prods. Corp., 583 F.3d 167, 170-71 (2d

Cir. 2009), applying the same standards applied under Rule

12(b)(6), Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.

2006). We review denial of leave to amend a complaint for abuse

of discretion. Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d

479, 490 (2d Cir. 2011).

We have conducted an independent review of the record

in light of these principles. For substantially the reasons

stated by the district court in its thorough and well-reasoned

decisions, we conclude that the district court properly dismissed

the complaint and that it did not abuse its discretion in not

granting Triola leave to amend his complaint.1

The district court correctly held that Triola's

retaliation claim based on his prior age discrimination complaint

was not cognizable under Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq. ("Title VII"). See Bornholdt v. Brady,

869 F.2d 57, 62 (2d Cir. 1989) (noting Title VII does not apply

to plaintiff's reprisal claim based on prior age discrimination

complaints "since that statute governs complaints relating only

to discrimination on the basis of race, color, religion, sex, or

national origin, and not discrimination on the basis of age");

see also Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 586-87
-4-

(2004) (noting "Congress chose not to include age within

discrimination forbidden by Title VII"); Lennon v. Rubin, 166

F.3d 6, 8 (1st Cir. 1999) ("We reject [plaintiff's] challenge to

the district court's dismissal of his Title VII claims for

retaliation based on age discrimination complaints.").

Moreover, even assuming Triola's claims were cognizable

under Title VII or that they had been brought under the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., we

agree that Triola's claim based on the 2006 job offer rescission

would be time-barred and that his claim based on the 2009 job

application did not plead any "plausible theory of retaliation." 

Triola v. ASRC Mgmt. Servs., No. 10-CV-560 (ERK) (ALC), 2010 WL

3218414, at *4 n.2 (E.D.N.Y. Aug. 12, 2010).

We have considered Triola's remaining arguments on

appeal and find them to be without merit. Accordingly, the

judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, CLERK