10-2447-cv

Lomako v. New York Institute of Technology

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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in

the City of New York, on the 1st day of September, two thousand eleven.

PRESENT:

RALPH K. WINTER,

ROGER J. MINER,

PETER W. HALL,

Circuit Judges.

_____________________________________

Gennady Lomako,

Plaintiff-Appellant,

v. 10-2447-cv

New York Institute of Technology, Heskia Heskiaoff, Ayat Jafari,

Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: GENNADY LOMAKO, pro se, Brooklyn,

NY.

FOR DEFENDANTS-APPELLEES: ELAN RADAY, Law Offices of Elan

Raday, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of

New York (Baer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Gennady Lomako, proceeding pro se, appeals from a judgment of the

district court entered on May 14, 2010, the defendants’ motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) and thereby dismissing Lomako’s first amended complaint, in

which he asserted claims under, inter alia: Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-17 (2006) (“Title VII”); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-

34 (2006) (“ADEA”); the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17 (2006)

(“ADA”); 42 U.S.C. §§ 1985 and 1986 (2006); section 301 of the Labor Management Relations

Act (“LMRA”), 29 U.S.C. § 185(a) (2006); the New York State Human Rights Law, N.Y. Exec.

L. § 296 (McKinney 2010 & Supp. 2011) (“NYSHRL”); and the New York City Human Rights

Law, N.Y.C. Admin. Code § 8-502 (“NYCHRL”). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

This Court reviews de novo the district court’s dismissal of a complaint under 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 Warner,

Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, 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). A claim will have “facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although all

allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Id.

After an independent review of the record and the relevant case law, we conclude that the

district court properly dismissed Lomako’s complaint for failure to state a claim substantially for

the reasons stated in its May 2010 decision. See Lomako v. New York Inst. of Tech., No. 09 Civ.

6066(HB), 2010 WL 1915041 (S.D.N.Y. May 12, 2010). Specifically, the district court:

(1) properly dismissed as time-barred the Title VII, ADEA, ADA, §§ 1985 and 1986, and LMRA

§ 301 claims; (2) properly dismissed the NYSHRL and NYCHRL claims as barred by the

election-of-remedies provisions of those statutes; (3) did not abuse its discretion by denying

Lomako’s motion for leave to file a second amended complaint; and (4) did not abuse its

discretion by declining to exercise supplemental jurisdiction over the remaining state law claims.

Lomako argues that, under Delaware State College v. Ricks, 449 U.S. 250 (1980), the

relevant accrual date for his Title VII, ADEA, and ADA claims was when he received his

terminal contract on August 22, 2005. However, as the district court correctly determined, the

relevant accrual date was May 23, 2005, when Lomako was notified of the denial of his

reappointment. It was this denial that led to the subsequent issuance of Lomako’s terminal

contract. Lomako’s reliance on Ricks is misplaced. In Ricks, the Supreme Court held that the

limitations period for a professor’s Title VII claim based upon a discriminatory denial of tenure

commenced on the date that the professor was notified of the decision denying him tenure, not

the date of his subsequent termination. See id. at 259. Thus, to the extent that Lomako’s claims

were based upon the decision to deny his reappointment, which resulted in the subsequent

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issuance of his terminal contract, Ricks supports the district court’s conclusion as to the accrual

date.

Lomako argues for the first time on appeal that he was entitled to equitable tolling on the

grounds that New York Institute of Technology (“NYIT”) failed to comply with an Equal

Employment Opportunity Commission (“EEOC”) regulation requiring posting of a notice of

employee rights and that the defendants gave him misleading information. Although we

generally will not consider an issue raised for the first time on appeal, Virgilio v. City of New

York, 407 F.3d 105, 116 (2d Cir. 2005), we may, in our discretion, disregard the general rule

when necessary to remedy manifest or obvious injustice. See Thomas E. Hoar, Inc. v. Sara Lee

Corp., 900 F.2d 522, 527 (2d Cir. 1990). Here, Lomako fails to show that the circumstances of

his case warrant a departure from the general rule against review of issues raised for the first

time on appeal. In any event, Lomako’s complaint lacked any factual allegations suggesting that

NYIT violated the EEOC posting requirement or that he did not know of the deadlines and

procedures for filing an EEOC charge. Furthermore, Lomako’s assertion that his union and the

defendants intentionally misled him for the purpose of preventing him from filing a complaint

with the DHR or EEOC is vague and conclusory and does not suggest a plausible basis for

equitable tolling.

We have considered all of Lomako’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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