     16-2542
     McGuirk v. Swiss Re Fin. Servs. Corp.

                                    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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   26th day of October, two thousand seventeen.
 4
 5   Present:         ROSEMARY S. POOLER,
 6                    DEBRA ANN LIVINGSTON,
 7                              Circuit Judges.
 8                    GEOFFREY W. CRAWFORD,1
 9                              District Judge.
10
11   _____________________________________________________
12
13   MICHELLE L. MCGUIRK,
14
15                                      Plaintiff-Appellant,
16
17                             v.                                               16-2542-cv
18
19   SWISS RE FINANCIAL SERVICES, CORP.,
20   SWISS REINSURANCE AMERICA CORP., SWISS
21   RE FINANCIAL PRODUCTS CORP., WALTER B. KEILHOLZ,
22   DAVID J. BLUMBER, CHRISTIAN MUMENTHALER,
23   CHARLOTTE GUBLER, KANWARDEEP AHLUWALIA,
24   DAVID GODFREY, ERIKA OZER, JOHN DOES,
25
26                           Defendants-Appellees.
27   _____________________________________________________
28

     1
      Judge Geoffrey W. Crawford, United States District Court for the District of Vermont, sitting
     by designation.



                                                          1
 1   Appearing for Appellant:      Michelle L. McGuirk, Pro Se, New York, N.Y.
 2
 3   Appearing for Appellees:      Christopher H. Lowe, Seyfarth Shaw LLP, New York, N.Y.
 4
 5   Appeal from the United States District Court for the Southern District of New York (McMahon,
 6   C.J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
10
11           Michelle L. McGuirk, proceeding pro se, appeals from the June 17, 2016 memorandum
12   decision and order dismissing her complaint raising employment discrimination and related
13   claims. We assume the parties’ familiarity with the underlying facts, the procedural history of
14   the case, and the issues on appeal.
15
16           We review de novo the district court’s grant of a motion to dismiss for failure to state a
17   claim, “accepting all factual allegations as true and drawing all reasonable inferences in favor of
18   the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566
19   (2d Cir. 2016). The complaint must plead “enough facts to state a claim to relief that is plausible
20   on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
21   556 U.S. 662, 678 (2009).
22
23           Except as discussed below, we affirm for largely the reasons stated in the district court’s
24   opinion. For the most part, McGuirk’s claims are either time barred or precluded by the finding
25   of the New York State Division of Human Rights that there was no discrimination. See McGuirk
26   v. New York State Div. of Human Rights, 139 A.D.3d 570 (1st Dep’t 2016). She otherwise failed
27   to plead plausible claims.
28
29           We agree with McGuirk that she properly pled a hostile work environment claim, but
30   affirm the district court’s dismissal because she failed to properly exhaust that claim before the
31   New York State Division of Human Rights. See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.
32   1993) (we may affirm “on any basis for which there is a record sufficient to permit conclusions
33   of law, including grounds upon which the district court did not rely”). Exhaustion of
34   administrative remedies is a pre-condition to bringing suit in federal court, though not a
35   jurisdictional requirement. Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015).
36   McGuirk’s complaint before the Division of Human Rights did not raise her hostile work
37   environment claim. No equitable defense to the failure to exhaust applies. Since McGuirk
38   exhausted other claims, she was not prevented from raising the hostile work environment claim.
39   The hostile work environment claim was not reasonably related to the other claims, so the
40   agency did not have a basis to investigate McGuirk’s allegations. See Williams v. New York City
41   Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (“The central question is whether the complaint filed
42   with the [agency] gave that agency adequate notice to investigate [the unexhausted claims].”
43   (internal quotation marks omitted)).
44
45
46



                                                      2
1           We have considered the remainder of McGuirk’s arguments and find them to be without
2   merit. Accordingly, the judgment of the district court is hereby AFFIRMED. McGuirk’s motion
3   to remand is DENIED.
4
5                                                    FOR THE COURT:
6                                                    Catherine O’Hagan Wolfe, Clerk
7




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