13-4071-cv
Cayemittes v. City of New York Dep’t of Hous. Pres. and Dev.

                                  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 7th day of March, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges.
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J. CLAUDEL CAYEMITTES,
                         Plaintiff-Appellant,

                     v.                                                            13-4071-cv

CITY OF NEW YORK DEPARTMENT OF
HOUSING              PRESERVATION                   AND
DEVELOPMENT, MICHAEL BOSNICK,
LUIZ ARAGON, WILLIAM CARBINE, JOHN
GRIFFIN,
                         Defendants-Appellees.
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FOR APPELLANT:                                    J. Claudel Cayemittes, pro se, Queens Village,
                                                  New York.

FOR APPELLEES:                                                 Elizabeth I. Freedman, Assistant Corporation
                                                               Counsel, for Zachary W. Carter, Corporation
                                                               Counsel of the City of New York, New York,
                                                               New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Ronnie Abrams, Judge; George B. Daniels, Judge; Theodore H. Katz,

Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment dated September 30, 2013, and entered on the docket

on October 2, 2013, is AFFIRMED.

       Pro se plaintiff J. Claudel Cayemittes sued the City of New York Department of

Housing Preservation and Development (“HPD”) and certain of its employees for

employment discrimination based on race, color, and national origin; retaliation; and

intentional infliction of emotional distress. He now appeals from the dismissal of his

employment discrimination claims, see 42 U.S.C. §§ 2000e et seq., and the award of

summary judgment on his remaining claims. We review the challenged rulings de novo,

see Jackson v. Fed. Express, 766 F.3d 189, 193−94 (2d Cir. 2014) (summary judgment);

Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013) (dismissal), assuming the

parties’ familiarity with the facts and record of prior proceedings, which we reference only

as necessary to explain our decision to affirm largely for the reasons stated by the two

district judges and the magistrate judge in their thorough opinions.

1.     Title VII Claims Against Individual Defendants

       At the outset, we affirm the dismissal of all Title VII claims against defendants sued

in their individual capacities because Title VII does not provide for individual liability.

See Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014); Spiegel v. Schulmann, 604 F.3d




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72, 79 (2d Cir. 2010). Nor can Cayemittes urge otherwise by invoking 42 U.S.C. §§ 1981

and 1983 for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(recognizing general rule that federal appellate court will not consider issue not passed on

below); Beason v. United Techs. Corp., 337 F.3d 271, 274 (2d Cir. 2003); see also Alki

Partners, L.P. v. Windhorst, 472 F. App’x 7, 9 (2d Cir. 2012) (summary order) (collecting

cases recognizing that plaintiffs “cannot amend the complaint through an appellate brief”).

2.     Claims of Discrimination Before February 5, 2008

       We also affirm the dismissal of Cayemittes’s discrimination claims pertaining to

events predating February 5, 2008, as untimely. See Flaherty v. Metromail Corp., 235

F.3d 133, 136 n.1 (2d Cir. 2000) (explaining that “[t]o sustain a claim for unlawful

discrimination under Title VII” in New York, plaintiff “must file administrative charges

with the EEOC within 300 days of the alleged discriminatory acts”). Cayemittes’s EEOC

charge, dated November 12, 2008, was filed on November 24, 2008. Thus, all claims

concerning acts occurring more than 300 days earlier, that is, before January 29, 2008,

were untimely.1

       Like the district court, we reject Cayemittes’s continuing-violation argument.

Even when we construe his complaint liberally, we conclude that he alleges, at best,

isolated actions that are not actionable if time-barred, “even when they are related to acts

alleged in timely filed charges.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,


1
  Insofar as the district court treated February 5, 2008, as the applicable cut-off date, any
calculation error was harmless because Cayemittes failed plausibly to allege any
discriminatory acts between January 29, 2008, and February 5, 2008.


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113 (2002) (holding “[e]ach discrete discriminatory act starts a new clock for charges

alleging that act”).

       Further, Cayemittes neither diligently pursued these claims nor alleged any

interference with his ability to so. Thus, the district court did not abuse its discretion in

declining to apply equitable tolling.       See id. (stating that equitable tolling applies

sparingly); Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80−81 (2d Cir. 2003)

(recognizing standard of review and stating that equitable tolling applies only where

plaintiff is prevented in some “extraordinary way” from exercising his rights).

3.     Claims of Discrimination After January 29, 2008

       For reasons stated by the district court, Cayemittes’s claims of discrimination after

January 29, 2008, were properly dismissed under Fed. R. Civ. P. 12(b)(6) for failure to

allege facts admitting a plausible causal connection between his race, color, or national

origin and the challenged employment action. See Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 87 (2d Cir. 2015) (explaining that, to survive dismissal, plaintiff must

plausibly allege that “race, color, religion, sex, or national origin was a motivating factor in

the employment decision”); Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (affirming

dismissal where plaintiff “failed to plead any facts that would create an inference that any

adverse action taken by any defendant was based upon her gender” (alterations and internal

quotation marks omitted)).

       Cayemittes’s hostile work environment claim was also correctly dismissed because,

as the district court recognized, the incidents complained of were not “sufficiently




                                               4
continuous and concerted . . . to be deemed pervasive,” Raspardo v. Carlone, 770 F.3d at

114 (internal quotation marks omitted), and no single incident was “of sufficient severity”

as to “alter the terms and conditions of employment” by creating a hostile work

environment, Patterson v. Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004).

4.     Retaliation Claim

       In challenging summary judgment on his retaliation claim, Cayemittes maintains

that there is a genuine issue of fact as to whether his September 2008 transfer to the

Division of Alternative Management Program (“DAMP”) constituted retaliation for his

April 10, 2008 filing of an internal complaint with HPD’s Office of Equal Employment

Opportunity (“EEO”).

       To establish a prima facie case of retaliation, a plaintiff must show

(1) his participation in protected activity, (2) defendant’s knowledge of the activity,

(3) adverse employment action, and (4) a causal connection between the protected activity

and the adverse employment action. See Jute v. Hamilton Sundstrand Corp., 420 F.3d

166, 173 (2d Cir. 2005). After an independent review of the record, we conclude, for

substantially the reasons stated by the district court, that Cayemittes’s claim fails at the

causation step of analysis in light of evidence that his transferring of departments was

contemplated as early as October 2007, when Cayemittes complained about reassignment

to the Director of Special Projects. See Slattery v. Swiss Reinsurance Am. Corp., 248

F.3d 87, 95 (2d Cir. 2001) (explaining that “inference of retaliation does not arise” where

“gradual adverse job actions began well before the plaintiff had ever engaged in any




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protected activity”). Between October 2007 and the April 2008 EEO filing, Cayemittes

and defendant Carbine discussed a variety of transfer options, including a transfer to

DAMP. On this record, no reasonable factfinder could conclude that Cayemittes was

transferred to DAMP in retaliation for his April 10, 2008 filing, and summary judgment

was correctly awarded to HPD.

5.    Conclusion

       We have considered all of Cayemittes’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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