10-2342-cv 

Vargas v. Manhattan & Bronx Surface Transit Operating Authority

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 30th day of August, two thousand and eleven.

PRESENT:

ROGER J. MINER,

JOSÉ A. CABRANES,

PETER W. HALL,

Circuit Judges.

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HECTOR VARGAS,

Plaintiff-Appellant,

v. No. 10-2342-cv

MANHATTAN AND BRONX SURFACE TRANSIT OPERATING

AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY,

Defendants-Appellees.

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FOR APPELLANT: Hector Vargas, pro se, New York, NY.

FOR APPELLEES: Kristen M. Nolan (Richard Schoolman, on the brief), Office of

the General Counsel, New York City Transit Authority,

Brooklyn, NY.

Appeal from an April 30, 2010 judgment entered in the United States District Court for the

Southern District of New York (Alvin K. Hellerstein, Judge). 

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

Plaintiff-appellant Hector Vargas, pro se, appeals from a judgment granting summary

judgment to defendants, Manhattan and Bronx Surface Transit Operating Authority and New York

City Transit Authority, and dismissing Vargas’s suit in its entirety on the grounds that: (1) Vargas

had failed to articulate a prima facie age discrimination claim under § 296 of the New York Human

Rights Law; (2) Vargas’s breach of contract claim based on a collective bargaining agreement

(“CBA”) was barred by both the terms of the general release of the parties’ settlement agreement

and the fact that Vargas was not a party to the CBA; and (3) Vargas’s constitutional due process and

equal protection claims failed as a matter of law because Vargas did not demonstrate that he had a

“protectable property interest” or that he was treated differently than any other group. We assume

the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal. 

We review de novo a district court’s grant of summary judgment, drawing all factual inferences

in favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d

Cir. 2008). “Summary judgment is proper only when, construing the evidence in the light most

favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)

(quoting Fed. R. Civ. P. 56(a)). 

Having conducted an independent, de novo review of the record in light of these principles,

we affirm the judgment of the District Court for substantially the reasons stated in its thorough and

well-reasoned opinion. See Vargas v. Manhattan & Bronx Surface Transit Operating Auth., No. 08-CV9254, 2010 U.S. Dist. LEXIS 42736 (S.D.N.Y. Apr. 30, 2010). 

With respect to Vargas’s argument on appeal that the District Court erred in determining

that he did not offer any evidence to establish that he was suffering from diabetes, we decline to

consider whether Vargas has demonstrated that he is disabled under state law because he failed to

raise a disability discrimination claim under either state or federal law in his complaint. 

Similarly, we decline to consider Vargas’s First Amendment free speech claim because it is

raised for the first time on appeal, and Vargas has not demonstrated that any manifest or obvious

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injustice will occur if we refuse to consider the issue. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900

F.2d 522, 527 (2d Cir. 1990). 

CONCLUSION

We have reviewed Vargas’s remaining arguments on appeal and find them to be without

merit. Accordingly, the judgment of the District Court is AFFIRMED. 

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court

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