14-2496
Stembridge v. New York City Department of Education


                                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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 10th day of December, two thousand fifteen.

PRESENT: AMALYA L. KEARSE,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                         Circuit Judges.
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EVERETT STEMBRIDGE,
                         Plaintiff-Appellant,

                              v.                                         No. 14-2496-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,
NEW YORK CITY LEADERSHIP ACADEMY,
COUNCIL               OF           SUPERVISORS                  AND
ADMINISTRATORS, and NEW YORK CITY OFFICE
OF GENERAL COUNSEL,
                         Defendants-Appellees.*
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                              EVERETT STEMBRIDGE, pro se, New
                                                      York, New York.



* The Clerk of Court is directed to amend the caption as set forth above.

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APPEARING FOR APPELLEES:                     VICTORIA SCALZO, Assistant Corporation
                                             Counsel (Larry A. Sonnenshein, of Counsel,
                                             on the brief), for Zachary W. Carter,
                                             Corporation Counsel of the City of New York,
                                             New York, New York, for New York City
                                             Department of Education and New York City
                                             Office of General Counsel.

                                             VINCENT M. AVERY, Gordon Rees Scully
                                             Mansukhani, LLP, New York, New York, for
                                             New York City Leadership Academy.

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

of New York (J. Paul Oetken, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the June 27, 2014 judgment of the district court is AFFIRMED.

       Plaintiff Everett Stembridge, proceeding pro se, appeals the district court’s

dismissal of his amended complaint against the New York City Department of Education

(“DOE”), DOE’s Office of General Counsel, the Council of School Supervisors, and the

New York City Leadership Academy, alleging, among other things, race discrimination in

his demotion from assistant principal to teacher in 2006, his demotion to substitute teacher

in June 2009, and the DOE’s failure to hire him for a principal position. See 42 U.S.C.

§§ 1981 and 1983. The district court concluded that many of Stembridge’s claims were

barred by the statute of limitations, and that his timely allegations failed to state a claim.

See Fed. R. Civ. P. 12(b)(6). The court also found that to the extent that Stembridge’s

claims were viewed as having been asserted under Title VII of the Civil Rights Act of 1964



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(“Title VII”), 42 U.S.C. §§ 2000e-1 to 2000e-17, they failed for the same reasons. We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal, which we reference only as necessary to explain our decision to affirm.

       We review de novo the dismissal of a complaint for failure to state a claim. See

Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). To survive dismissal, a

complaint must plead “enough facts to state a claim to relief that is plausible on its face,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Applying these principles, we conclude that the district

court correctly dismissed Stembridge’s amended complaint, for substantially the reasons

stated in its June 27, 2014 decision.

       As to any colorable Title VII claim, Stembridge failed to timely file or exhaust his

administrative remedies. See, e.g., Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143

(2d Cir. 1993) (stating that plaintiff “cannot use Section 1983 to gain perceived advantages

not available to a Title VII claimant,” but that plaintiff “can assert a claim under Section

1983 if some law other than Title VII is the source of the right alleged to have been

denied”). To the extent that the source of the right asserted in his claims is other than Title

VII, those claims were also correctly dismissed.

       Stembridge argues that his §§ 1983 and 1981 claims arising from his 2006 demotion

were timely because they did not accrue until his 2009 arbitration with DOE. A claim



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accrues “when the plaintiff knows or has reason to know of the injury which is the basis of

his action.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (internal

quotation marks omitted). Insofar as Stembridge was injured by his 2006 demotion, he

knew in March 2008 that DOE would no longer pay him as an assistant principal. Thus,

his discrimination claim as to the 2006 demotion accrued no later than that point, making

his September 2012 complaint as to that demotion barred by the applicable three- and

four-year statutes of limitations.    See Owens v. Okure, 488 U.S. 235, 250 (1989)

(applying three-year limitation on § 1983 claims); Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 382 (2004) (applying four-year limitation on § 1981 claims).               The

continuing violations doctrine does not change this result, as it does not apply to a discrete

action such as a demotion. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

114–15 (2002).

       Stembridge’s claim as to his June 2009 demotion is untimely under § 1983, but

timely under § 1981. Stembridge argues that he plausibly alleged this demotion to have

been in retaliation for filing a grievance over DOE’s recoupment of his assistant principal

salary. “[T]o be actionable under § 1981,” however, the alleged retaliation “must have

been in response to the claimant’s assertion of rights that were protected by § 1981.”

Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998). While § 1981

prohibits employment discrimination based on race, see Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 68–69 (2d Cir. 2000), Stembridge does not allege that he



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raised a racial discrimination claim in his grievance. Instead, the issue at arbitration was

whether DOE was contractually permitted to recoup his salary. Accordingly, Stembridge

failed to plead a plausible § 1981 claim regarding his 2009 demotion.

       We have considered Stembridge’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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