     15-2611
     Staten v. City of New York


                             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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 30th day of June, two thousand sixteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               GUIDO CALABRESI,
 8               REENA RAGGI,
 9                     Circuit Judges.
10   _____________________________________
11
12   Claude A. Staten,
13
14                                Plaintiff-Appellant,
15
16                     v.                                                           15-2611
17
18   City of New York,
19
20                                Defendant-Appellee.
21
22   _____________________________________
23
24
25   FOR PLAINTIFF-APPELLANT:                       Claude A. Staten, pro se, Middletown, NY.
26
27   FOR DEFENDANT-APPELLEE:                        Julie Steiner (with Pamela Seider Dolgow on the brief)
28                                                  for Zachary W. Carter, Corporation Counsel of the City
29                                                  of New York, New York, NY.
30
31
 1   Appeal from a judgment of the United States District Court for the Southern District of New York

 2   (Ramos, J.).


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

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Claude A. Staten, pro se, appeals from the district court’s judgment dismissing

 6   his complaint alleging employment discrimination under Title VII of the Civil Rights Act of 1964,

 7   42 U.S.C. § 2000 et seq. (“Title VII”). We assume the parties’ familiarity with the underlying

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

 9          We review de novo a district court’s dismissal of a complaint for failure to state a claim,

10   “accepting as true the factual allegations in the complaint and drawing all inferences in the

11   plaintiff’s favor.” Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must

12   plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v.

13   Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court to draw the reasonable inference that

14   the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

15   In the Title VII context, a plaintiff does not have to plead a prima facie case pursuant to the first

16   stage of the McDonnell Douglas burden-shifting framework to survive a motion to dismiss, and is

17   instead required to plausibly allege facts that “provide ‘at least minimal support for the proposition

18   that the employer was motivated by discriminatory intent.’” Vega v. Hempstead Union Free Sch.

19   Dist., 801 F.3d 72, 84-85 (2d Cir. 2015) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311

20   (2d Cir. 2015)).

21          1.      Under the doctrine of claim preclusion, “a final judgment forecloses successive

22   litigation of the very same claim, whether or not relitigation of the claim raises the same issues as

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1    the earlier suit.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102,

2    107-08 (2d Cir. 2015) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). Claim preclusion

3    also bars “claims that might have been raised in the prior litigation but were not.” Id. at 108.

4    Claim preclusion arises when a previous action (1) “involved an adjudication on the merits,” (2)

5    involved the same adverse parties as the instant litigation “or those in privity with them,” and (3)

6    involved claims asserted in the instant litigation that “were, or could have been, raised in the prior

7    action.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (internal quotation

8    marks omitted).

9           As the district court concluded, claim preclusion applies to bar relitigation of Staten’s

10   promotion claims because he could have raised those claims in his prior federal action, which

11   raised nearly identical claims. Staten argues that the continuing violation doctrine revives his

12   promotion claims; however, the continuing violation doctrine applies to timeliness, not claim

13   preclusion. See Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004).

14          2. The district court also correctly determined that several of Staten’s claims were

15   time-barred. A Title VII plaintiff must file a charge with the Equal Employment Opportunity

16   Commission (“EEOC”) within 300 days “after the alleged unlawful employment practice

17   occurred”; claims based on conduct that occurred more than 300 days before the plaintiff filed his

18   EEOC charge are time barred. 42 U.S.C. § 2000e-5(e)(1). Since Staten filed his EEOC charge

19   in December 2013, claims based on conduct that occurred before February 2013 are time-barred.

20   See Vega, 801 F.3d at 78-79.        That bar defeats most of Staten’s claims of hostile work

21   environment, his retaliation claim based on complaints he made in 2006 and 2007, and his claim

22   alleging unequal terms and conditions of employment (premised on the City’s failure to recognize


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 1   him for his involvement in two shootings that occurred in 1996 and 2000).1 See id.

 2          The district court also correctly concluded that the continuing violation doctrine did not

 3   apply to Staten’s time-barred hostile work environment claims. Under the continuing violation

 4   doctrine, “if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the

 5   commencement of the statute of limitations period may be delayed until the last discriminatory act

 6   in furtherance of it.” Washington, 373 F.3d at 317 (alteration in original) (quoting Fitzgerald v.

 7   Henderson, 251 F.3d 345, 359 (2d Cir. 2001)). In this context, if timely acts are sufficiently

 8   related to acts preceding the limitations period, we consider the entire scope of the claim, including

 9   behavior outside the limitations period. See McGullam v. Cedar Graphics, Inc., 609 F.3d 70,

10   75-76 (2d Cir. 2010). Staten’s time-barred claims were insufficiently related to his timely claims

11   to constitute a continuing violation. His time-barred hostile work environment claims alleged

12   derogatory comments, unjust punishment for failing to secure his locker, and withholding of PBA

13   cards; by contrast, his timely claims focused primarily on complaints about specific job

14   assignments, orders that he disagreed with, or issues with the department confirming that he

15   complied with internal rules.

16          3. We agree with the district court that Staten failed to plausibly allege a hostile work

17   environment claim, that is, he failed to state facts suggesting that “the harassment was sufficiently

18   severe or pervasive to alter the conditions of [his] employment and create an abusive working

19   environment.” Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (internal quotation marks


     1
       The district court erroneously determined that Staten failed to allege that he engaged in protected
     conduct to support a retaliation claim; we affirm nonetheless because that claim was also
     time-barred. See Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448
     F.3d 573, 580 (2d Cir. 2006) (“This Court may ‘affirm an appealed decision on any ground which
     finds support in the record . . . .’” (quoting Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990)).

                                                       4
1    omitted) (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). We consider factors

2    including “the frequency of the discriminatory conduct; its severity; whether it is physically

3    threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

4    with [the] employee’s work performance.” Id. at 150 (alteration in original) (quoting Harris v.

5    Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

6           Staten timely challenges only the dismissal of the hostile work environment claim that a

7    lieutenant gave him dangerous orders. Specifically, Staten alleges he was ordered to leave his

8    patrol car in a dangerous plaza and handle a disorderly group in a specific way placed him in

 9   danger. Staten failed to plausibly allege that these orders amounted to sufficiently severe or

10   pervasive harassment; receiving orders to work in dangerous locations or control dangerous

11   situations, absent more, does not amount to a hostile work environment given Staten’s

12   employment as a police officer.

13          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

14
15                                                   FOR THE COURT:
16                                                   Catherine O’Hagan Wolfe, Clerk




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