         11-3541
         Odom v. Doar


                             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 TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 20th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                 BARRINGTON D. PARKER,
 8                 RICHARD C. WESLEY,
 9                      Circuit Judges,
10                 JOHN GLEESON,
11                      District Judge.*
12       _____________________________________
13
14       Curtis Odom,
15
16                            Plaintiff-Appellant,
17
18                      v.                                      11-3541
19
20       Robert Doar, Commr. New York City
21       Human Resources Administration,
22       Mattye Gandel, Office of Collective
23       Bargaining,
24
25                      Defendants-Appellees.
26       _____________________________________
27
28       FOR PLAINTIFF-APPELLANT:            Curtis Odom, pro se, Brooklyn, NY.
29
30

                 *
               Judge John Gleeson, of the United States District Court for
         the Eastern District of New York, sitting by designation.
 1   FOR DEFENDANT-APPELLEE          Fay Ng, Assistant Corporation
 2   ROBERT DOAR:                    Counsel (Pamela Seider Dolgow,
 3                                   James L. Hallman, on the brief) for
 4                                   Michael A. Cardozo, Corporation
 5                                   Counsel for the City of New York,
 6                                   New York, NY.
 7
 8   FOR DEFENDANT-APPELLEE          William D. Buckley, Garbarini &
 9   MATTYE GANDEL:                  Scher, P.C., New York, NY.
10
11
12          Appeal from the judgment of the United States District Court

13   for the Southern District of New York (Cote, J.).

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

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

16          Plaintiff-Appellant Curtis Odom, pro se, appeals from the

17   district court’s judgment dismissing his discrimination claims

18   brought pursuant to Title VII of Civil Rights Act of 1964 (“Title

19   VII”), 42 U.S.C. § 2000e et seq.; the New York State Human Rights

20   Law (“NYSHRL”), N.Y. Exec. Law §§ 290-97; and the New York City

21   Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-101 et

22   seq.    Odom asserts that his former employer, the New York City

23   Human Resources Administration (the “Administration”),

24   discriminated against him by terminating his employment in

25   October 2007 on the basis of his race and sex.**    We assume the

26   parties’ familiarity with the facts, the procedural history of

27   the case, and the issues on appeal.



            **
           On appeal, Odom has abandoned his claims against Defendant
     Mattye Gandel.

                                       2
 1        As a precondition to filing an action in federal court under

 2   Title VII, a litigant must first have filed a timely charge of

 3   discrimination with the Equal Employment Opportunity Commission

 4   (“EEOC”).   See 42 U.S.C. § 2000e-5(e)(1); Francis v. City of New

 5   York, 235 F.3d 763, 766-67 (2d Cir. 2000).   “[F]iling a timely

 6   charge of discrimination with the EEOC is not a jurisdictional

 7   prerequisite to suit in federal court, but a requirement that,

 8   like a statute of limitations, is subject to waiver, estoppel,

 9   and equitable tolling.”   Francis, 235 F.3d at 767 (quoting Zipes

10   v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))

11   (internal quotation marks omitted).   In New York, the statute of

12   limitations for filing a charge with the EEOC is 300 days.   See

13   42 U.S.C. § 2000e-5(e)(1); Quinn v. Green Tree Credit Corp., 159

14   F.3d 759, 765 (2d Cir. 1998) (abrogated on other grounds).

15        Here, the most recent alleged discriminatory action, Odom’s

16   termination, occurred on October 22, 2007.   Because Odom’s EEOC

17   complaint was not filed until nearly three years later, in August

18   2010, it was untimely under Title VII’s 300-day statute of

19   limitations.   Similarly, because Odom did not file his federal

20   complaint until January 2011, his claims brought under the New

21   York State Human Rights Law and the New York City Human Rights

22   Law, both of which have a three-year statute of limitations, are

23   also time-barred.   See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code

24   § 8-502(d); see also Kassner v. 2nd Ave. Delicatessen, Inc., 496

25   F.3d 229, 238 (2d Cir. 2007).


                                      3
 1        On appeal, Odom argues that the above time limits should be

 2   equitably tolled.   This argument, however, was never presented to

 3   the district court and it is a well-established general rule that

 4   a court of appeals will not consider an issue raised for the

 5   first time on appeal.   See Singleton v. Wulff, 428 U.S. 106,

 6   120-21 (1976); Virgilio v. City of New York, 407 F.3d 105, 116

 7   (2d Cir. 2005) (citing Westinghouse Credit Corp. v. D’Urso, 371

 8   F.3d 96, 103 (2d Cir. 2004)).    While this rule is not inflexible,

 9   and we may in our discretion disregard it when necessary to

10   remedy a manifest injustice, Thomas E. Hoar, Inc. v. Sara Lee

11   Corp., 900 F.2d 522, 527 (2d Cir. 1990), Odom has not adequately

12   explained why he did not raise this issue in the district court

13   after the Administration explicitly moved to dismiss his

14   complaint as time-barred.   The complaint, therefore, was

15   appropriately dismissed as time-barred.

16        We have considered all of Odom’s remaining arguments and

17   find them to be without merit.    Accordingly, we AFFIRM the

18   judgment of the district court.

19
20                                    FOR THE COURT:
21                                    Catherine O’Hagan Wolfe, Clerk




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