11-3426-cv
McAllister v. Connecticut Renaissance Inc.



                           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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the
City of New York, on the 11th day of September, two thousand twelve.

Present:        GUIDO CALABRESI,
                SUSAN L. CARNEY,
                                 Circuit Judges.*

______________________________________________________
                                                      |
DARRIN A. McALLISTER,                                 |
                                                      |
                  Plaintiff-Appellant,                |
                                                      |
                    v.                                |                      No. 11-3426-cv
                                                      |
CONNECTICUT RENAISSANCE INC., GREATER                 |
BRIDGEPORT ADOLESCENT PREGNANCY                       |
PROGRAM INC., PATRICK McCAULIFFE,                     |
JOSEPH RIKER, LINDA MOSEL, BERNADETTE                 |
LYNCH-GUPTA, SARAH NICHOLS,                           |
                                                      |
                  Defendants-Appellees.               |
______________________________________________________|




        *
         The third judge originally assigned to the panel was unable to hear the case because of a
health issue. In accordance with our local rules, the two remaining members of the panel, who are in
agreement, have decided the case. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b);United States v. Desimone,
140 F.3d 457, 458-59 (2d Cir. 1998).
Appearing for Appellant:                       DARRIN A. MCALLISTER, pro se,
                                               Bridgeport, CT


Appearing for Appellees Connecticut            RACHEL VOLKMAN KUSHEL, Durant,
Renaissance Inc., Joseph Riker, Linda          Nichols, Houston, Hodgson & Cortese-
Mosel, Patrick McCauliffe, and                 Costa, P.C., Bridgeport, CT
Bernadette Lynch-Gupta:


Appearing for Appellees Greater                JEFFREY W. KENNEDY, Milano &
Bridgeport Adolescent Pregnancy                Wanat, LLC, Branford, CT
Program Inc. and Sarah Nichols:


      Appeal from the United States District Court for the District of Connecticut

(Warren W. Eginton, Judge). ON CONSIDERATION WHEREOF, it is hereby

ORDERED, ADJUDGED, and DECREED that the judgment of the District Court

be and it hereby is AFFIRMED.

      Plaintiff-Appellant Darrin A. McAllister appeals from a judgment of the

District Court granting (1) a motion to dismiss for failure to state a claim filed by

Defendants-Appellees Greater Bridgeport Adolescent Pregnancy Program

(“GBAPP”) and Sarah Nichols; and (2) a motion to stay proceedings and compel

arbitration filed by Defendants-Appellees Connecticut Renaissance, Inc. (“CTR”),

Joseph Riker, Linda Mosel, Patrick McCauliffe, and Bernadette Lynch-Gupta.

      McAllister’s complaint (the “Complaint”) alleged violations of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, and the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 to 12213. We

assume the parties’ familiarity with the facts alleged in the Complaint, the




                                           2
procedural history of the case, and the issues on appeal, which we refer to only as

necessary to explain our decision.1

        A.      GBAPP’s Motion to Dismiss

        We “review de novo [a] [d]istrict [c]ourt’s dismissal of a complaint for failure

to state a claim upon which relief can be granted, accepting all well-pleaded factual

allegations in the complaint as true and drawing all inferences in favor of the

plaintiff.” Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011). To survive a

motion to dismiss for failure to state a claim, 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). Although pro se complaints must contain sufficient

factual allegations to meet the plausibility standard, see Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009), we look for such allegations by reading the complaint with

“special solicitude” and interpreting it to raise the strongest claims it suggests,

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting

Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).

        We have conducted a de novo review of the record in light of these principles

and now affirm the district court’s dismissal of McAllister’s claims against GBAPP.

Both Title VII and the ADA require some allegedly discriminatory action on the

part of the employer defendant. See 42 U.S.C. § 2000e-2(a) (Title VII); 42 U.S.C.

§ 12112(a) (ADA). Even when read with the special solicitude we show pro se

pleadings, however, the Complaint is devoid of any allegation suggesting that



        1
         We note that McAllister does not challenge the district court’s dismissal of his claims against
the individual defendants.

                                                   3
GBAPP was McAllister’s employer, much less that it played a role in any of the

discriminatory conduct he alleges.

      Because McAllister’s claims against GBAPP therefore lack facial plausibility,

we affirm the district court’s dismissal of those claims.

      B.     CTR’s Motion to Stay and Compel Arbitration

      We review de novo a district court’s “determination of arbitrability.” Gold v.

Deutsche Aktiengesellschaft, 365 F.3d 144, 147 (2d Cir. 2004).

      The Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, “establishes a national

policy favoring arbitration when the parties contract for that mode of dispute

resolution.” Preston v. Ferrer, 552 U.S. 346, 349 (2008). To determine whether an

action should be dismissed in favor of arbitration, we consider four factors: (1)

whether the parties agreed to arbitrate; (2) the scope or the arbitration agreement;

(3) whether, if federal statutory claims are asserted, Congress intended those claims

to be nonarbitrable; and (4) whether, if some but not all of the claims in the case are

arbitrable, the case should be stayed pending arbitration. JLM Indus., Inc. v. Stolt-

Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004).

      When he was hired, McAllister initialed and signed an agreement (the

“Arbitration Agreement”), which provided, in relevant part, as follows:

      The Company and You mutually consent to resolve through the CTR
      Resolution program including final and binding arbitration all claims
      or controversies (“claims”) past, present or future, whether or not
      arising out of your employment (or its termination) . . . .

      The claims covered by this Agreement include, but are not limited to:
      . . . claims for discrimination (including, but not limited to, race, sex,
      sexual orientation, religion, national origin, age, marital status,
      physical or mental disability or handicap, or medical condition).


                                           4
(CTR Resolution Agreement, CTR Motion to Stay Proceedings and Compel

Arbitration, Ex. A at 1.)

       McAllister does not contest the validity of the Arbitration Agreement, and we

reject his suggestion that its terms were nullified by a severance agreement he later

received from (but did not enter into with) CTR. McAllister concedes that he did

not enter into the severance agreement; accordingly, neither he nor CTR is bound

by its terms. See Bridgeport Pipe Eng’g Co. v. DeMatteo Constr. Co., 268 A.2d 391,

393 (Conn. 1970). As the plain language of the Arbitration Agreement provides, the

parties agreed to resolve their disputes by arbitration, and their agreement covered

the claims McAllister asserts in the Complaint. See JLM Indus., 387 F.3d at 169.

Those claims arise under “employment discrimination statutes[,] and, as a general

matter, ‘courts have consistently found that such claims can be subject to

mandatory arbitration.’” Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 120

(2d Cir. 2010) (quoting Gold, 365 F.3d at 147). For these reasons, the district court

correctly granted CTR’s motion to stay proceedings and compel arbitration.2




       2
          In ruling on a motion to compel arbitration under the Federal Arbitration Act, “the court
applies a standard similar to that applicable for a motion for summary judgment.” Bensadoun v.
Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). In our circuit, pro se litigants who oppose motions for
summary judgment are entitled to notice of the consequences of failing to support their opposition
with evidence. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999). We do not address
whether such a rule might also apply when a pro se litigant is opposing a motion to dismiss in favor
of arbitration because, although McAllister appears not to have received such notice, the “record
otherwise makes clear that the litigant understood the nature and consequences” of CTR’s motion.
Id. at 621.

                                                  5
      We have considered all of McAllister’s remaining arguments and find them to

be without merit. Accordingly, the judgment of the district court is AFFIRMED.


                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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