10-3906-cv
Tompkins v. AlliedBarton Security 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 Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
of June, two thousand eleven.

PRESENT:
            ROSEMARY S. POOLER,
            ROBERT D. SACK,
            GERARD E. LYNCH,
                  Circuit Judges.
_______________________________________________

Cynthia Tompkins,

                                             Plaintiff-Appellant,
                     v.                                                        No. 10-3906-cv

AlliedBarton Security Services,

                        Defendant-Appellee.
______________________________________________

For Plaintiff-Appellant:                            Cynthia Tompkins, pro se, Bronx, NY.

For Defendant-Appellee:                             Matthew D. Crawford, Martenson, Hasbrouck & Simon,
                                                    LLP Atlanta, GA (Janet B. Linn, Eckert Seamans Cherin &
                                                    Mellott, LLC, White Plains, NY, on the brief).

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Berman, J.).

          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.
       Plaintiff-Appellant Cynthia Tompkins appeals pro se from the district court’s judgment

granting the Defendant-Appellee’s motion for summary judgment and dismissing her claims

brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 (“Title

VII”), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (“EPA”). We assume the parties’

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

       We review orders granting summary judgment de novo and focus on whether the district

court properly concluded that there was no genuine issue as to any material fact and the moving

party was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321

F.3d 292, 300 (2d Cir. 2003). Here, following an independent and de novo review of the record,

we conclude that the district court properly granted the Defendant’s motion for summary

judgment, and thus affirm the district court’s judgment for substantially the same reasons as set

forth in the magistrate judge’s well-reasoned and thorough report and recommendation.

       We review Tompkins’s challenge to the district court’s denial of her motion for leave to

amend her complaint to add a claim under the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. §§ 12101-12213, for abuse of discretion, Chavis v. Chappius, 618 F.3d 162,

167 (2d Cir. 2010). It is clear from the record that amendment of Tompkins’s complaint to add

an ADA claim would have been futile because the claim was untimely, 42 U.S.C. § 12117(a)

(adopting the filing requirements of 42 U.S.C. § 2000e-5 for Title I ADA claims); 42

U.S.C. § 2000e-5(e)(1) (after the filing of a complaint in a state with a fair employment agency,

such as New York, a charge must be filed with the EEOC within 300 days of the alleged

discrimination or within 30 days of notice of termination of state proceedings, whichever comes

first). Although the ADA’s time limits for filing with the EEOC are not “jurisdictional,” and are


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therefore “subject to waiver, estoppel, and equitable tolling,” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982), here, it is clear that such a “rare and exceptional” remedy was

not appropriate. See Zerilli-Edelglass v. NYC Transit Off., 333 F.3d 74, 80 (2d Cir. 2003) (citing

examples of where equitable tolling is considered appropriate, such as where a defendant’s

misconduct or a plaintiff’s medical condition prevented timely filing). Accordingly, the district

court did not abuse its discretion in denying Tompkins leave to amend her complaint to add an

ADA claim.

       Finally, inasmuch as Tompkins now attempts to allege a retaliation claim against her

supervisor on appeal, generally this Court will not consider an issue raised for the first time on

appeal, see Singleton v. Wulff, 428 U.S. 106, 120-21 (1976), and no circumstances warranting

review are present in this case, Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (the bar

to raising new issues on appeal may be disregarded if “necessary to remedy an obvious injustice”

or “the elements of the claim were fully set forth” in the trial court).

       We have reviewed Tompkins’s remaining arguments and find them to be without merit.

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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