     12-4252
     Pajooh v. N.Y.C. Dep’t of Sanitation



                             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 16th day of December, two thousand thirteen.

     PRESENT:
                 ROBERT A. KATZMANN,
                       Chief Judge,
                 RALPH K. WINTER,
                 GUIDO CALABRESI,
                       Circuit Judges.
     _________________________________________

     Randy K. Pajooh,

                                  Plaintiff - Appellant,

                        v.                                            No. 12-4252-cv

     Department of Sanitation City of New York,
     Local 831 Sanitation Workers Union,

                       Defendants - Appellees.
     _________________________________________

     For Plaintiff-Appellant:                    Randy Pajooh, pro se, Bronx, NY

     For Defendants-Appellees:                   Deborah A. Brenner, Assistant Corporation Counsel,
                                                 New York, NY, for the City of New York,
                                                 Department of Sanitation
                                       Alan Mark Klinger (Allyson Rucinski and Dina
                                       Kolker, of counsel), Stroock & Stroock & Lavan
                                       LLP, New York, NY, for Local 831 Sanitation
                                       Workers Union


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

District of New York (Swain, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Appellant Randy Pajooh, proceeding pro se, appeals from a September 27, 2012

judgment entered by the United States District Court for the Southern District of New York

(Swain, J.) dismissing Pajooh’s employment discrimination claims against his former

employer, the New York City Department of Sanitation (“DOS”), and his former union, the

Local 831 Sanitation Workers Union (the “Union”). We assume the parties’ familiarity

with the underlying facts, procedural history of the case, and issues on appeal. “We review

de novo a district court’s dismissal of a complaint under Rule 12(b)(6),” taking “all factual

allegations as true and draw[ing] all reasonable inferences in favor of the plaintiff.” Metz v.

U.S. Life Ins. Co., 662 F.3d 600, 602 (2d Cir. 2011) (per curiam) (internal quotation marks

omitted).

       First, we find that Pajooh’s claim against the DOS brought pursuant to Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), is barred under

principles of claim and issue preclusion. As the district court noted, the allegations in

Pajooh’s Verified Complaint in the New York State Division of Human Rights and the

complaint in this action “emerge from the same set of events and allegations, namely that



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Plaintiff suffered discrimination and retaliation by the DOS on account of his national

origin and race.” Pajooh v. Dep’t of Sanitation City of N.Y., No. 11 Civ. 3116, 2012 WL

4465370, at *3 (S.D.N.Y. Sept. 27, 2012). The New York State Division of Human Rights

dismissed Pajooh’s complaint after finding a lack of evidence to support his allegations;

that determination was upheld by both the New York State Supreme Court and the New

York State Appellate Division, First Department. See Pajooh v. State Div. of Human

Rights, 82 A.D.3d 609 (N.Y. App. Div. 2011). The dismissal of Pajooh’s state action was a

final judgment on the merits of a factually identical claim, and therefore Pajooh is barred

from re-raising those claims here. See Kremer v. Chem. Const. Corp., 456 U.S. 461,

479–85 (1982) (finding a Title VII action precluded in analogous circumstances). Pajooh

likewise previously raised in state court his argument that the Division of Human Rights’

decision was “procured by extrinsic fraud,” and thus he is not entitled to relitigate that

argument here. Accordingly, the district court properly dismissed Pajooh’s Title VII claim

against the DOS.

       Second, we agree with the district court that Pajooh’s Title VII claim against the

Union is time-barred for failure to file a charge against the Union with the Equal

Employment Opportunity Commission (“EEOC”) prior to bringing this action. See 42

U.S.C.A. § 2000e-5(f)(1) (limiting complainant’s right to sue to “the respondent named in

the charge”). Although Pajooh included the Union’s name and address in his intake

questionnaire submitted to the EEOC, his descriptions of his claims fail to mention the

Union; Pajooh’s underlying Verified Complaint submitted to the New York State Division

of Human Rights named only the DOS; and the EEOC’s “Right To Sue” letter included

only the DOS as a respondent, having adopted the state proceeding’s findings. Under these
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circumstances, Pajooh failed to provide sufficient notice to the Union that he intended to

assert a discrimination claim against it, and therefore the district court properly found that

Pajooh failed to name the Union as a respondent in his EEOC charge. Additionally,

because there is no identity of interest between the DOS and the Union, as is required to

allow Pajooh to assert his claim against the Union as an unnamed party, Pajooh’s Title VII

claim against the Union was properly dismissed. See Vital v. Interfaith Med. Ctr., 168 F.3d

615, 619–20 (2d Cir. 1999) (affirming dismissal of a Title VII claim where the plaintiff

named only his employer and not his union in his EEOC charge).

       Finally, we conclude that the district court did not abuse its discretion in refusing to

exercise jurisdiction over Pajooh’s state law claims after dismissing his Title VII claims, as

“[i]t is well settled that where, as here, the federal claims are eliminated in the early stages

of litigation, courts should generally decline to exercise pendent jurisdiction over

remaining state law claims.” Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464

F.3d 255, 262 (2d Cir. 2006).

       We have considered Pajooh’s remaining arguments and find them to be without

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

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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