10-4333-cv
Hoffman v. Williamsville School District

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
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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 31st day of October, two thousand eleven.

PRESENT:
             AMALYA L. KEARSE,
             PIERRE N. LEVAL,
             DENNY CHIN,
                       Circuit Judges.
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LINDA MAHER HOFFMAN,
                           Plaintiff-Appellant,

                    -v.-                                           10-4333-cv

WILLIAMSVILLE SCHOOL DISTRICT,
                    Defendant-Appellee,

ELVIN SIMMONS, as Aider and Abettor,
                    Defendant.

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FOR PLAINTIFF-APPELLANT:                LINDY KORN, CHARLES L. MILLER, II,
                                        Law Office of Lindy Korn, Buffalo,
                                        New York.


FOR DEFENDANT-APPELLEE:                 SCOTT D. PIPER, Harris Beach PLLC,
                                        Pittsford, New York.


             Appeal from the United States District Court for the

Western District of New York (Curtin, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

            Plaintiff-appellant Linda Maher Hoffman appeals from

the district court's September 24, 2010, judgment dismissing her

complaint pursuant to Fed. R. Civ. P. 12(b)(6).    Judgment was

entered after the district court filed a written decision on

September 23, 2010, granting the motion of defendant-appellee

Williamsville School District (the "District") to dismiss.      We

assume the parties' familiarity with the facts and procedural
history.

            We review a dismissal pursuant to Fed. R. Civ. P.

12(b)(6) de novo, "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) (citation

omitted).    After reviewing the record, we conclude, for

substantially the reasons set forth by the district court, that

Hoffman's claims were properly dismissed.

            Hoffman's complaint below (the "Complaint") asserted

four claims: 1) gender discrimination in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17

("Title VII"); 2) hostile work environment in violation of Title

VII; 3) disability discrimination in violation of the Americans

with Disabilities Act, 42 U.S.C. §§ 12112-12117 (the "ADA"); and

4) retaliation in violation of Title VII.    Hoffman asserts that

the district court erred in dismissing all four claims.


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     1.     Title VII Gender Claims

            The first and second causes of action -- asserting

gender discrimination and hostile work environment -- are based

on the same factual allegations, and thus we discuss them

together.

            The district court correctly dismissed the two claims.

First, the claims were untimely.      To be timely, plaintiff's

administrative charge should have been filed within 300 days of

the alleged discriminatory conduct.       42 U.S.C. § 2000e-5(e)(1).

"Thus, only events that occurred during the 300-day period prior

to filing . . . are actionable under Title VII."      Van Zant v. KLM

Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).        Here, as

Hoffman's charge (the "Charge") was filed with the New York State

Division of Human Rights and the Equal Employment Opportunity

Commission (the "EEOC") on November 21, 2008, the district court

correctly concluded that the 300-day window commenced on January

27, 2008.       The Complaint, however, does not allege any

discriminatory conduct by the District within the 300-day

period.1    While the Charge alleges conduct "through April 2008"

and in September 2008, these allegations were not included in the

Complaint.



            1
             There are references to two conversations between
defendant Elvin Simmons and Hoffman in 2008, but one conversation
is alleged to have occurred on January 11, 2008, plainly prior to
the limitations period, and the other is not claimed to have
occurred on any specific date during the alleged period of
"January through February 2008," a good part of which was prior
to the limitations period. In any event, in neither conversation
is Simmons alleged to have engaged in gender-based discriminatory
conduct.
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          Second, the claims were not exhausted.    Before filing a

Title VII claim in federal court, a plaintiff must exhaust all

available administrative remedies.    See Deravin v. Kerik, 335

F.3d 195, 200 (2d Cir. 2003).   An allegation not set forth in an

administrative charge will be barred as unexhausted unless it is

reasonably related to the allegations in the charge.    See

Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir.

2006) (per curiam).   A new allegation will be considered

reasonably related if the administrative charge provided the EEOC

with sufficient notice to investigate the allegation.    Id.   Here,

the Complaint alleges a pattern of arguably gender-based conduct

ranging from the 1999-2000 school year through January 11, 2008,

but none of this conduct was alleged in the Charge.     Although the

Charge also alleged that Simmons "[o]n many occasions" came up

behind Hoffman and put his hands on her shoulders in an

"inappropriate manner," the Charge did not allege that that

conduct occurred after January 27, 2008, and Hoffman has not

argued on appeal that her Title VII claims are "reasonably

related" to the allegations in her administrative charge.
Rather, the conduct that the Charge alleged was continued

'through April 2008' was Simmons' pressuring Hoffman about the

District's investigation into his conduct.    Because the Charge

cannot reasonably be read to include allegations of gender

discrimination, the Charge failed to provide the EEOC with

sufficient notice to investigate the gender-based conduct now

asserted in the Complaint.   Accordingly, Hoffman's gender

discrimination and hostile work environment claims were untimely

and unexhausted and therefore were properly dismissed.

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     2.     ADA Claim

             The district court properly dismissed Hoffman's ADA

claim for untimeliness and failure to exhaust.     As with Title VII

claims, plaintiffs asserting ADA claims must exhaust all

available administrative remedies, see, e.g., J.C. v. Reg'l Sch.

Dist. 10, Bd. of Educ., 278 F.3d 119, 124 (2d Cir. 2002), and

must file an EEOC charge within 300 days of the alleged

discriminatory conduct if they have instituted proceedings with a

state or local agency, see, e.g., Tewksbury v. Ottaway
Newspapers, 192 F.3d 322, 325 (2d Cir. 1999).

             First, the Complaint fails to allege a violation of the

ADA that falls within the 300-day window.     Any challenge to the

denial of her request for ADA accommodation in 2005 was time-

barred by the time Hoffman filed her administrative charge in

2008.     The ADA claim is therefore untimely.

             In addition, nothing in the Charge provided the EEOC

sufficient notice to investigate Hoffman's allegation that she

requested and was refused a reasonable accommodation for an

alleged disability in 2005, so the allegation is not reasonably
related to the Charge.     Hoffman's ADA claim was therefore also

properly dismissed as unexhausted.
     3.     Title VII Retaliation Claim

             Finally, the district court properly dismissed

Hoffman's retaliation claim as unexhausted.      The Charge did not

include a claim of retaliation nor did it contain allegations

that Hoffman had engaged in the sort of "protected participation

or opposition" necessary to trigger a Title VII retaliation

claim.    See Sumner v. U.S. Postal Serv., 899 F.2d 203, 208-09 (2d

                                  -5-
Cir. 1990) (holding protected activities include "the filing of

formal charges . . . as well [as] informal protests of

discriminatory employment practices").        We agree with the

district court that the claim of retaliation is not reasonably

related to the allegations in the Charge because nothing in the

Charge provided the EEOC adequate notice to investigate possible

retaliation.   Hoffman's retaliation claim therefore was not

exhausted and was properly dismissed.

          We have considered Hoffman's other arguments and
conclude they are without merit.        Accordingly, the judgment of

the district court is AFFIRMED.

                               FOR THE COURT:
                               CATHERINE O'HAGAN WOLFE, CLERK




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