    15-1837
    Carter v. Brennan


                             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.

                  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 26th day of July, two thousand sixteen.

    PRESENT:
                ROSEMARY S. POOLER,
                BARRINGTON D. PARKER,
                DEBRA ANN LIVINGSTON,
                            Circuit Judges.
    _____________________________________

    Robert West Carter,

                              Plaintiff-Appellant,

                        v.                                                       15-1837

    Megan J. Brennan, Postmaster General, United
    States Postal Service,

                              Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF -APPELLANT:                        Robert West Carter, pro se, Suffield, CT.

    FOR DEFENDANT -APPELLEE:                         Michelle L. McConaghy, Assistant United States
                                                     Attorney (Sandra S. Glover, Assistant United
                                                     States Attorney, on the brief), for Deirdre M. Daly,
                                                     United States Attorney for the District of
                                                     Connecticut, New Haven, CT.
        Appeal from a judgment of the United States District Court for the District of Connecticut

(Arterton, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Robert West Carter, proceeding pro se, appeals the district court’s judgment

dismissing his complaint, which alleged discrimination in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et. seq., for failure to exhaust his administrative remedies.

Carter sued his former employer, the United States Postal Service (“Postal Service”), alleging that

he had been fired because of his age. The district court granted the Postal Service’s motion to

dismiss, ruling that Carter had been required to initiate contact with an EEO counselor within 45

days of receiving notice of his termination in March 2009. He did not do so until July 2010, after

an arbitrator had upheld his termination. On appeal, Carter challenges both the dismissal of his

complaint and the court’s denial of his request for appointed counsel. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

        We review the district court’s decision de novo, “construing the complaint liberally,

accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in

the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We

review the denial of a motion for appointment of counsel for abuse of discretion. Jenkins v.

Chem. Bank, 721 F.2d 876, 879 (2d Cir. 1983).

        Upon review, we conclude that the district court properly dismissed the complaint. We

affirm for substantially the reasons stated by the district court in its thorough May 4, 2015




                                                 2
decision. Further, Carter has not shown that the district court abused its discretion by failing to

appoint counsel.

       Carter contends that the court’s order of dismissal is inconsistent with its prior ruling that

his amended complaint stated a claim. However, the first ruling addressed the sufficiency of his

allegations, not whether he had exhausted his administrative remedies, and the failure to exhaust is

an affirmative defense. See Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). The Postal

Service raised that defense after service of the complaint.

       For the first time on appeal, Carter argues that he was employed by the Postal Service

through September 2010, relying on a Notification of Personnel Action and other documents

related to his health insurance coverage. We generally do not consider arguments raised for the

first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 121 (1976). Even if we were to

consider the new argument, it is without merit, as Carter was on notice of the alleged

discriminatory action in March 2009. See 29 C.F.R. § 1614.105(a)(1), (2); cf. Green v. Brennan,

— U.S. —, 136 S. Ct. 1769, 1782 (2016) (“[A]n ordinary wrongful-discharge claim accrues—and

the limitations period begins to run—when the employer notifies the employee he is fired, not on

the last day of his employment.”).

       We have considered all of Carter’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                                 3
