09-1924-cv
Baroor v. New York City Department of Education

                               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 21st day of January, two thousand ten.

PRESENT:          PETER W. HALL,
                  DEBRA ANN LIVINGSTON,                  Circuit Judges,
                  DENNY CHIN,*                           District Judge.

_______________________________________________________

Shahin Baroor,
                                                  Plaintiff-Appellant,

                          v.                                                    No. 09-1924-cv

New York City Department of Education, Helen Zentner, Ted Radin, and Gary Goldenback, in
Their Individual and Official Capacities,

                                    Defendants-Appellees.**
________________________________________________________




        *
       The Honorable Denny Chin, of the United States District Court for the Southern District
of New York, sitting by designation.
        **
             The Clerk of the Court is directed to amend the official caption as set forth above.
For Appellant:                 THOMAS RICOTTA , Leeds, Morelli & Brown, P.C., Carle Place,
                               New York.

For Appellees:                 MICHAEL A. CARDOZO , Corporation Counsel of the City of New
                               York (Norman Corenthal, Assistant Corporation Counsel, Kristin
                               M. Helmers, Counsel, Andrea O’Connor, Counsel, on the brief),
                               New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Gershon, J.), filed April 8, 2009, which, in accordance with the court’s memorandum

decision and order dated April 3, 2009, granted defendants-appellees’ motion for summary

judgment in its entirety. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Shahin Baroor appeals from a judgment of the United States District

Court for the Eastern District of New York (Gershon, J.), which, in accordance with the court’s

memorandum decision and order dated April 3, 2009, granted defendants-appellees’ motion for

summary judgment in its entirety. Appellant claims that the district court erred in granting

summary judgment for appellees on appellant’s employment discrimination claims. We review a

district court’s grant of summary judgment de novo, drawing all inferences in favor of the

nonmoving party. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).

While we will not uphold an award of summary judgment in favor of the defendant if the

evidence is sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point

to more than a “scintilla” of evidence in support of his position to defeat summary judgment. See

Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (internal quotation marks omitted).

“[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary judgment


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motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002). We review a district

court’s application of the relevant statute of limitations de novo, see Somoza v. New York City

Dep’t of Educ., 538 F.3d 106, 112 (2d Cir. 2008), and its ruling on equitable tolling for abuse of

discretion, see United States v. All Funds Distributed To, or on Behalf of, Weiss, 345 F.3d 49, 54

(2d Cir. 2003). We assume the parties’ familiarity with the factual and procedural history of the

case, as well as the issues on appeal, which we reference only to the extent necessary to explain

our decision to affirm.

       We affirm for substantially the reasons stated in the district court’s thorough and

well-reasoned opinion. See Baroor v. New York City Dep’t of Educ., No. 06 cv 3965 (NG), 2009

WL 959537, at *1 (E.D.N.Y. Apr. 3, 2009).

I.     Title VII Claims

       For a Title VII claim arising in New York to be timely, a plaintiff must file the charge

with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the

allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree

Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). And, while a hostile work environment claim is

treated as a continuing violation and treated as timely if one act contributing to the claim

occurred within the 300-day period, discrete acts of discrimination such as termination that occur

outside the limitations period are considered untimely. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 111-14 (2002).

       Here, Baroor filed an EEOC charge on June 13, 2006. Because all of the defendants’

alleged misconduct occurred prior to August 17, 2005, the EEOC charge is untimely as to each of

Baroor’s Title VII claims.


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       Title VII’s time limits for filing with the EEOC are not jurisdictional, but, like statutes of

limitations, are subject to “waiver, estoppel, and equitable tolling.” Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable tolling is, however, “only appropriate in rare

and exceptional circumstances, in which a party is prevented in some extraordinary way from

exercising his rights.” Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80 (2d

Cir. 2003) (internal quotation marks, alteration and citation omitted). Exceptional circumstances

that might warrant equitable tolling include “where a plaintiff’s medical condition or mental

impairment prevented her from proceeding in a timely fashion.” Id. (citing Brown v. Parkchester

S. Condos., 287 F.3d 58, 60 (2d Cir. 2002)). “When determining whether equitable tolling is

applicable, a district court must consider whether the person seeking application of the equitable

tolling doctrine (1) has ‘acted with reasonable diligence during the time period she seeks to have

tolled,’ and (2) has proved that the circumstances are so extraordinary that the doctrine should

apply.” Id. at 80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288

F.3d 506, 512 (2d Cir. 2002)).

       The district court declined to equitably toll the 300-day EEOC filing deadline because it

found that Baroor had failed to act with reasonable diligence throughout the time period she

seeks to have tolled.

       A review of the record reveals that Baroor failed to adduce evidence demonstrating the

extraordinary circumstances that would merit the application of equitable tolling. Baroor argues

that her “medical and mental impairment” warrant equitable tolling because her condition

indicates that she acted with the requisite diligence. The record, however, does not support this

claim. The district court’s finding is well-supported by the record. Accordingly, the district


                                                 4
court did not abuse its discretion in concluding that equitable tolling is not warranted in this case

and that Baroor’s Title VII claims are time-barred.

II.     Section 1983 Claims

        “The statute of limitations for claims brought under Section 1983 is governed by state

law, and in this case is the three-year period for personal injury actions under New York State

law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009). Under New York law, the

statute of limitations period may be extended “[i]f a person entitled to commence an action is

under a disability because of infancy or insanity at the time the cause of action accrues.” N.Y.

C.P.L.R § 208. Physical ailments, however, do not suffice to invoke the New York tolling

provisions. See Eisenbach v. Metro. Transp. Auth., 97 A.D.2d 808 (N.Y. App. Div. 1983); see

also McBride v. County of Westchester, 211 A.D.2d 792, 794 (N.Y.A.D. 1995). “In § 1983

actions . . . a state statute of limitations and the coordinate tolling rules are more than a technical

obstacle to be circumvented if possible.” Bd. of Regents of Univ. of the State of New York v.

Tomanio, 446 U.S. 478, 484 (1980).

        Baroor filed the present action on August 16, 2006. Except for her wrongful retirement

claim, each alleged discrete act of discrimination accrued more than three years prior to her filing

this action. Baroor’s untimely claims cannot be deemed timely under the continuing violations

theory because her only timely claim arises out of a discrete discriminatory act that is separate

from her hostile work environment claim. See Natl. R.R. Passenger Corp. v. Morgan, 536 U.S.

at 111-14, 116. Baroor argues that the district court erred by declining to equitably toll her §

1983 claims because her impairment was a mental impairment that “included physical




                                                   5
manifestations.” This argument, however, is without merit. See Baroor, 2009 WL 959537, at

*7.

        Accordingly, the district court did not abuse its discretion in concluding that equitable

tolling is not warranted in this case and that Baroor’s Title VII claims are time-barred.

III.    Wrongful Retirement

        Claims of employment discrimination brought pursuant to 42 U.S.C. § 1983 are analyzed

using the burden-shifting framework set forth in McDonnell Douglas v. Green, 411 U.S. 792

(1973). See Sorlucco v. New York City Police Dep’t, 888 F.2d 4, 7 (2d Cir. 1989) (holding that

“[i]n a claim arising under Title VII or section 1983, a plaintiff . . . has the initial burden of

establishing a prima facie case of discrimination”). A plaintiff must first present sufficient

evidence to establish a prima facie case of discrimination by demonstrating that: (1) she

belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse

employment action; and (4) the adverse employment action occurred under circumstances giving

rise to an inference of discrimination. McDonnell, 411 U.S. at 802-04.

        The district court determined that Baroor failed to present sufficient evidence to establish

that she suffered any adverse employment action because she retired at her request and had

submitted a retirement application. The court concluded that Baroor thus failed to make out a

prima facie case with respect to her claim of wrongful retirement under § 1983, and appellees

were entitled to judgment as a matter of law on that claim. Baroor, 2009 WL 959537, at **7-8.

        We agree with the district court that Baroor has not made out a prima facie case for

wrongful retirement because she failed to demonstrate that she suffered any adverse employment

action. Baroor’s testimony that the retirement application was a forgery notwithstanding, she


                                                   6
failed to offer any “specific, particularized facts, or expert testimony, to support her claim that

the retirement application form—which bears her signature and was notarized by a notary

public—was a product of forgery.” Id. at *8 (citing Jeffreys v. City of New York, 426 F.3d 549,

554 (2d Cir. 2005) (“To defeat summary judgment . . . nonmoving parties must do more than

simply show that there is some metaphysical doubt as to the material facts, and they may not rely

on conclusory allegations or unsubstantiated speculation.”) (internal citations and quotations

omitted)).

       We have considered Baroor’s remaining claims and find them to be without merit.

                                          CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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