09-2860-cv
Pugh-Perry v. New York City Human Resources Administration

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 30th day of November, two thousand and ten.

PRESENT:

          JOHN M. WALKER, JR.,
          JOSÉ A. CABRANES,
                               Circuit Judges,
          JOHN G. KOELTL ,
                               District Judge.*
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ROBIN G. PUGH -PERRY,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 09-2860-cv

NEW YORK CITY HUMAN RESOURCES ADMINISRTATION ,

                     Defendant-Appellee.**

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          *
          The Honorable John G. Koeltl, of the United States District Court for the Southern
District of New York, sitting by designation.
          **
          The Clerk of the Court is directed to amend the official caption of this action to conform
to the caption listed above.

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FOR PLAINTIFF-APPELLANT:                        ROBIN G. PUGH -PERRY , pro se, Jersey City, NJ.

FOR DEFENDANT-APPELLEE:                         SCOTT SHORR, Senior Counsel, Appeals Division
                                                (Michael A. Cardozo, Corporation Counsel, on the
                                                brief), The City of New York Law Department, New
                                                York, NY.

        Appeal from a June 2, 2009 judgment of the United States District Court for the Eastern
District of New York (Sandra J. Feuerstein, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be MODIFIED, and as modified is
AFFIRMED.

         Plaintiff-Appellant Robin G. Pugh-Perry, proceeding pro se, brought this action against the
New York City Human Resources Administration, alleging that she was discriminated and
retaliated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
The District Court dismissed the complaint for failure to state a claim upon which relief can be
granted because it is time-barred pursuant to 42 U.S.C. § 2000e-5(f)(1). Pugh-Perry filed a timely
appeal. On appeal, Pugh-Perry argues that the District Court erred in declining to apply the
doctrine of equitable tolling and in denying her leave to amend her complaint. She also argues that
the District Court erred in dismissing her claims under the New York City Human Rights Law,
N.Y.C. Admin. Code § 8-101 et seq. We assume the parties’ familiarity with the underlying facts
and procedural history of the case.

Pugh-Perry’s Federal Claim

         We review de novo a District Court’s dismissal for failure to state a claim, assuming all
well-pleaded, nonconclusory factual allegations in the complaint to be true, see, e.g., Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We read pro se complaints with “special solicitude”
and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted).

        Having conducted a de novo review, we conclude, for substantially the reasons stated by the
District Court, Pugh-Perry v. N.Y.C. Human Res. Admin., No. 07-CV-4050 (E.D.N.Y. June 2, 2009),
that Pugh-Perry has not demonstrated the type of extraordinary circumstances that would merit
the application of equitable tolling in this case. See Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)
(placing the burden on the plaintiff to demonstrate that equitable tolling should be applied, and
noting that vague or conclusory assertions are “insufficient to justify any further inquiry into
tolling”). Just as the Supreme Court observed in Baldwin Cnty Welcome Ctr. v. Brown:

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            This is not a case in which a claimant has received inadequate notice; or
            where a motion for appointment of counsel is pending and equity would
            justify tolling the statutory period until the motion is acted upon; or
            where the court has led the plaintiff to believe that she had done
            everything required of her. Nor is this a case where affirmative
            misconduct on the part of a defendant lulled the plaintiff into inaction.
            The simple fact is that [Pugh-Perry] was told [several] times what she
            must do to preserve her claim, and she did not do it. One who fails to act
            diligently cannot invoke equitable principles to excuse that lack of
            diligence.

466 U.S. 147, 151 (1984) (internal citations omitted). We therefore hold that the District Court
correctly dismissed her Title VII claim as time-barred.

         We review the District Court’s denial of leave to amend for “abuse of discretion.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “A district court has abused
its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citation, alterations, and
quotation marks omitted). “Although Rule 15(a) of the Federal Rules of Civil Procedure provides
that leave to amend ‘shall be freely given when justice so requires,’ it is within the sound discretion
of the district court to grant or deny leave to amend.” McCarthy, 482 F.3d at 200.

          The District Court denied leave to amend because it found that amendment would have
been futile. Pugh-Perry, No. 07-CV-4050, at *4. We agree. While Pugh-Perry’s appellate briefs
contain no indication of the manner in which she might amend the complaint, to the extent, as the
District Court suggests, Pugh-Perry, No. 07-CV-4050, at *3, that Pugh-Perry seeks to amend the
complaint to add additional allegations of “retaliatory harassment,” those allegations would not
cure the defect in the original complaint—that is, that the complaint was time-barred. Because
“[i]t is well-established that one good reason to deny leave to amend is . . . when the additional
information does not cure the complaint,” Mortimer Off Shore Svs., Ltd. v. Federal Republic of Germany,
615 F.3d 97, 114 (2d Cir. 2010) (internal quotation marks and alternations omitted), we cannot
conclude that the decision to deny her leave to amend was outside the range of permissible
decisions available to the District Court. See Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276
(2d Cir. 2006).

Pugh-Perry’s Pendent State Law Claims

        On appeal, Pugh-Perry also claims that the District Court erred in dismissing with
prejudice her pendent claim under the New York City administrative code. However, neither the
Magistrate Judge’s Report and Recommendation (“R&R”) nor the District Court’s order adopting

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the R&R in its entirety addressed any aspect of Pugh-Perry’s complaint other than the timeliness
of her Title VII claim and her argument regarding equitable tolling as discussed above.
Accordingly, because it is well settled that “[n]eedless decisions of state law should be avoided
both as a matter of comity and to promote justice between the parties, by procuring for them a
surer-footed reading of applicable law,” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966),
Pugh-Perry’s putative claim under the New York City administrative code—which would be
governed by a different statute of limitation—should have been dismissed without prejudice on
the ground that the District Court declined to exercise supplemental jurisdiction over it. We
therefore direct that, to the extent Pugh-Perry asserted a claim under the New York City
administrative code—a question on which we intimate no view—the judgment should be modified
to clarify that the dismissal of any such asserted claim is based on a lack of jurisdiction. Such a
dismissal does not foreclose Pugh-Perry’s pursuit of such a claim in the appropriate forum.

                                        CONCLUSION

       We have considered each of Pugh-Perry’s arguments on appeal and find them to be
without merit. For the reasons stated above, we MODIFY the judgment of the District Court,
and as modified the judgment of the District Court is AFFIRMED.



                                              FOR THE COURT
                                              Catherine O’Hagan Wolfe, Clerk




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