Hardy v. Pepsi-Cola Bottling Co. of New York

690 F. App'x 60

2d Cir.

2017

Check Treatment

Docket

Wayne L. HARDY, Plaintiff-Appellant, v. PEPSI-COLA BOTTLING COMPANY OF NEW YORK, INC., Defendant-Appellee.

16-1391

United States Court of Appeals, Second Circuit.

May 10, 2017

For Plaintiff-Appellant: WAYNE L. HARDY, pro se, Hempstead, New York

For Defendant-Appellee: ANTHONY MINGIONE, Anna K. Svensson (on the brief), Blank Rome LLP, New York, New York

Present: John M. Walker Jr., Debra Ann Livingston, Gerard E. Lynch, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Wayne L. Hardy, proceeding pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Caproni, J.), entered on March 31, 2016, in favor of his former employer Pepsi-Cola Bottling Company of New York (“PCNY“), in his employment discrimination and retaliation suit under Title VII of the Civil Rights Act of 1964 (“Title VII“), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (“ADA“), 42 U.S.C. § 12183(a). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court‘s grant of summary judgment. Garcia v. Hartford Police Dep‘t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Upon review, we conclude that the district court properly granted summary judgment to PCNY. Except as noted below, we affirm for substantially the reasons stated by the district court in its thorough decision. See Hardy v. Pepsi Bottling Co. of N.Y., Inc., No. 14-CV-4007 (VEC), 2016 WL 1301181 (S.D.N.Y. Mar. 31, 2016).

The district court did not explicitly address Hardy‘s claim that PCNY retaliated against him for filing a workers’ compensation claim. Nonetheless, this claim was properly dismissed because Hardy could not bring a workers’ compensation retaliation claim in district court. The Workers’ Compensation Board has exclusive jurisdiction over any claims for violation of New York‘s Workers’ Compensation Law, including claims that an employer retaliated against an employee for filing for workers’ compensation. See Isabella v. Koubek, 733 F.3d 384, 392 (2d Cir. 2013) (exclusive jurisdiction); N.Y. Workers’ Comp. Law § 120 (retaliation claims).

Hardy argues for the first time on appeal that the arbitrator violated New York‘s Workers’ Compensation Law and the collective bargaining agreement. Generally, we do not consider issues raised for the first time on appeal, and there is no reason to do so here. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016).

Finally, the district court did not abuse its discretion in denying Hardy‘s motions for counsel. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (reviewing the denial of counsel for abuse of discretion); Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986) (stating that a “threshold requirement” to appoint counsel is that “the indigent‘s position [must] seem[ ] likely to be of substance“).

We have considered all of Hardy‘s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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