     12-3341-cv
     Jones v. New York State Metro D.D.S.O., et al.




                                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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 17th day of October, two thousand thirteen.

     PRESENT:
                 BARRINGTON D. PARKER,
                 PETER W. HALL,
                 RAYMOND J. LOHIER, JR.,
                       Circuit Judges.
     __________________________________________

     Damon O. Jones,

                        Plaintiff-Appellant,

              v.                                                          No. 12-3341-cv

     New York State Metro D.D.S.O., et al.,

                        Defendants-Appellees,


     Urmic Arora, et al.,

                 Defendants.
     __________________________________________

     FOR APPELLANT:                                   Damon O. Jones, pro se, New York, NY.
FOR APPELLEES:                     Barbara D. Underwood, Solicitor General, Michael S.
                                   Belohlavek, Senior Counsel, Claude S. Platton, Assistant
                                   Solicitor General, for Eric T. Schneiderman, Attorney
                                   General of the State of New York, New York, NY.
_________________________________________

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

of New York (Hellerstein, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

    Plaintiff-Appellant Damon O. Jones (“Jones”), proceeding pro se, appeals from the

district court’s grant of summary judgment in favor of his former employer, Defendant-

Appellee the New York State Metro Developmental Disabilities Services Office

(“DDSO”), his former co-worker, Michael Harrison (“Harrison”), and his former

supervisors Laverne Boone (“Boone”) and Shirlynn Thomas (“Thomas”). This order

dismissed with prejudice Jones’s employment discrimination claims brought pursuant to

42 U.S.C. § 1983, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§

12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e

et seq., as well as the New York State and New York City Human Rights Laws.

Additionally, Jones appeals from the district court’s denial of his motions for recusal, to

compel discovery, and for default judgment. We assume the parties’ familiarity with the

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

       We review a district court’s grant of summary judgment de novo and focus on

whether the district court properly concluded that there was no genuine dispute as to any

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material fact and the moving party was entitled to judgment as a matter of law. See

Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We resolve “all

ambiguities and draw all inferences in favor of the party against whom summary

judgment is sought. The inferences to be drawn from the underlying affidavits, exhibits,

interrogatory answers, and depositions must be viewed in the light most favorable” to the

nonmoving party. Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160

(2d Cir. 1999) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995)).

Summary judgment is appropriate “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

    We review a district court’s discovery rulings for abuse of discretion, bearing in mind

that a “district court has broad discretion to manage pre-trial discovery.” Wood v. FBI,

432 F.3d 78, 84 (2d Cir. 2005). We also review a district court’s rulings on recusal

motions and motions for default judgment for abuse of discretion. See In re Basciano,

542 F.3d 950, 956 (2d Cir. 2008) (recusal motion); Covino v. Vt. Dep’t of Corr., 933 F.2d

128, 130 (2d Cir. 1991) (default judgment).

    An independent review of the record and relevant case law reveals that the district

court properly granted summary judgment in favor of Defendants-Appellees. First, as the

State of New York has not waived sovereign immunity from suits for damages under

Section 1983 and the ADA, the Eleventh Amendment bars Jones’s claims under these

statutes against the DDSO, a division of the state agency referred to as the Office for

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People with Developmental Disabilities. See Nicolae v. Office of Vocational & Educ.

Servs. for Individuals with Disabilities, 257 F. App’x 455, 456-57 (2d Cir. 2007) (ADA);

Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (Section 1983). Second,

although the district court did not explicitly analyze Jones’s Title VII discrimination and

retaliation claims against the DDSO under the three-step burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), it is clear that

the district court applied this framework and correctly concluded that Jones failed to state

a prima facie case of either discrimination or retaliation. Specifically, the DDSO

provided admissible evidence that Jones was terminated due to his arrest for sexually

assaulting a developmentally disabled person in the care of the DDSO, while Jones failed

to proffer any evidence demonstrating that his discharge took place under circumstances

giving rise to an inference of discrimination. See Reynolds v. Barrett, 685 F.3d 193, 202

(2d Cir. 2012) (“Under the McDonnell Douglas framework, a plaintiff establishes a prima

facie case of intentional discrimination by showing that (1) he is a member of a protected

class; (2) he was qualified for the position he held; (3) he suffered an adverse

employment action; and (4) the adverse action took place under circumstances giving rise

to an inference of discrimination.” (internal quotation marks and alteration omitted)).

Moreover, Jones failed to state a prima facie case of retaliation because reporting to a

supervisor that a fellow employee was “sleeping on the job” is not a protected activity

under Title VII. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)

(holding that a “protected activity refers to action taken to protest or oppose statutorily

                                              4
prohibited discrimination”) (internal quotation marks omitted), superseded on other

grounds by N.Y.C. Local L. No. 85.

    As for Jones’s claims under the ADA, Title VII and Section 1983 against Harrison,

Boone and Thomas (collectively “Individual Defendants”), he failed to file charges with

the Equal Employment Opportunity Commission within 300 days of the alleged

discriminatory act and to file suit within 90 days of receiving his notice of right to sue

letter. His claims against the Individual Defendants are, therefore, time-barred. Nor has

Jones show that he was entitled to equitable tolling as he could have filed a discrimination

charge even while incarcerated. Although Jones’s Section 1983 claims against the

Individual Defendants are not time-barred, sovereign immunity precludes asserting the

claims against them in their official capacity. Moreover, because Jones failed to show

that the Individual Defendants were personally involved in a constitutional deprivation,

his claims against them in their individual capacity must also fail. See Back v. Hastings

on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (stating that imposing

individual liability under Section 1983 requires “personal involvement . . . in alleged

constitutional deprivations”) (internal quotation marks omitted). For the foregoing

reasons, Defendants-Appellees were entitled to summary judgment with respect to all of

Jones’s federal claims, and the district court did not abuse its discretion in refusing to

exercise supplemental jurisdiction over Jones’s state law claims.

    Finally, the district court did not abuse its discretion in denying Jones’s motion to

compel discovery as Jones failed to indicate the type of discovery he required and how

                                              5
such further discovery would create a genuine issue of material fact. The district court

also did not abuse its discretion in denying Jones’s motions for recusal and for default

judgment.

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

merit.

         The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk




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