         12-1676
         Hewitt v. New York City Department of Health and Mental Hygiene


                           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.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 11th
 4       day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                 JOHN M. WALKER, Jr.,
 8                 PIERRE N. LEVAL,
 9                 RICHARD C. WESLEY,
10                      Circuit Judges.
11       _____________________________________
12
13       Wanda O. Hewitt,
14
15                           Plaintiff-Appellant,
16
17                    v.                                             12-1676-cv
18
19       New York City Department of Health
20       and Mental Hygiene,
21
22                      Defendant-Appellee.
23       _____________________________________
24
25       FOR PLAINTIFF-APPELLANT:                Wanda O. Hewitt, pro se, Brooklyn,
26                                               N.Y.
27
28       FOR DEFENDANT-APPELLEE:                 Larry A. Sonnenshein, Diana
29                                               Lawless, of Counsel, for Michael A.
30                                               Cardozo, Corporation Counsel of the
31                                               City of New York, New York, N.Y.
32
33
 1        Appeal from the judgment of the United States District Court

 2   for the Eastern District of New York (Mauskopf, J.).

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

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

 5        Plaintiff-Appellant Wanda O. Hewitt, pro se, appeals from

 6   the judgment of the district court dismissing her employment

 7   discrimination complaint on the defendant’s motions to dismiss.

 8   We assume the parties’ familiarity with the underlying facts, the

 9   procedural history of the case, and the issues presented for

10   review.

11        We review de novo a district court decision dismissing a

12   complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)

13   or 12(b)(6).    See Jaghory v. New York State Dep’t of Educ., 131

14   F.3d 326, 329 (2d Cir. 1997).   Dismissal of a case for lack of

15   subject matter jurisdiction under Rule 12(b)(1) is proper “when

16   the district court lacks the statutory or constitutional power to

17   adjudicate it.”    Makarova v. United States, 201 F.3d 110, 113 (2d

18   Cir. 2000).    To survive a Rule 12(b)(6) motion to dismiss, the

19   complaint must plead “enough facts to state a claim to relief

20   that is plausible on its face.”    Bell Atlantic Corp. v. Twombly,

21   550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.

22   662, 678 (2009).   A claim will have “facial plausibility when the

23   plaintiff pleads factual content that allows the court to draw

24   the reasonable inference that the defendant is liable for the

25   misconduct alleged.”    Iqbal, 556 U.S. at 678.   While pro se


                                       2
 1   complaints must contain sufficient factual allegations to meet

 2   the plausibility standard, see Harris v. Mills, 572 F.3d 66, 72

 3   (2d Cir. 2009), we should look for such allegations by affording

 4   the litigant “special solicitude” and “interpreting the complaint

 5   to raise the strongest claims that it suggests,” Hill v.

 6   Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks and

 7   alterations omitted).

 8        As a precondition to filing an action in federal court under

 9   Title VII of the Civil Rights Act of 1964 (“Title VII”), a

10   litigant must first have exhausted her administrative remedies by

11   timely filing a charge of discrimination with the Equal

12   Employment Opportunity Commission (“EEOC”).   See 42 U.S.C. §

13   2000e-5(e); Francis v. City of New York, 235 F.3d 763, 766-67 (2d

14   Cir. 2000).   Title VII requires a claimant to file a

15   discrimination charge with the EEOC within 180 days of the

16   alleged unlawful employment practice or, if the claimant

17   initially instituted proceedings with a state or local equal

18   employment agency, within 300 days of the alleged unlawful

19   employment practice. See 42 U.S.C. § 2000e-5(e)(1); Quinn v.

20   Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998).     “With

21   respect to claims based on termination, failure to promote,

22   denial of transfer, or refusal to hire, [Title VII] precludes

23   recovery for discrete acts of discrimination or retaliation that

24   occur outside the statutory time period, even if other acts of

25   discrimination occurred within the statutory time period.”


                                      3
 1   McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010)

 2   (internal citations, emphasis, and quotation marks omitted).

 3        Having conducted an independent, thorough and de novo review

 4   of the record in light of these principles, we find that the

 5   district court properly concluded that: (1) Hewitt failed to

 6   administratively exhaust her Title VII retaliation claim by

 7   failing to include that claim in her administrative complaint;

 8   (2) Hewitt’s Title VII discrimination claims relating to her

 9   August 2007 termination and the events preceding that termination

10   were time-barred under the applicable 300-day limitations period;

11   and (3) Hewitt failed to state a discrimination claim under Title

12   VII or New York law with respect to a March 2008 arbitration

13   hearing concerning her termination as she failed to allege facts

14   in her amended complaint suggesting that any discriminatory

15   animus played a role in the arbitration.   Accordingly, we affirm

16   the dismissal of Hewitt’s complaint and amended complaint for

17   substantially the same reasons stated by the district court in

18   its orders dated December 7, 2010 and March 31, 2012.

19        We have considered all of Hewitt’s remaining arguments and

20   find them to be without merit.    Accordingly, we AFFIRM the

21   judgment of the district court.

22
23                                 FOR THE COURT:
24                                Catherine O’Hagan Wolfe, Clerk




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