Tompkins v. AlliedBarton Security Services

Jun 8, 2011

10-3906-cv

Versions:

Cynthia Tompkins, Bronx, NY, pro se.

Matthew D. Crawford, Martenson, Hasbrouck & Simon, LLP, Atlanta, GA (Janet B. Linn, Eckert Seamans Cherin & Mellott, LLC, White Plains, NY, on the brief), for Defendant-Appellee.

PRESENT: ROSEMARY S. POOLER, ROBERT D. SACK, GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Cynthia Tompkins appeals pro se from the district court‘s judgment granting the Defendant-Appellee‘s motion for summary judgment and dismissing her claims brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2 (“Title VII“), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (“EPA“). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Here, following an independent and de novo review of the record, we conclude that the district court properly granted the Defendant‘s motion for summary judgment, and thus affirm the district court‘s judgment for substantially the same reasons as set forth in the magistrate judge‘s well-reasoned and thorough report and recommendation.

We review Tompkins‘s challenge to the district court‘s denial of her motion for leave to amend her complaint to add a claim under the Americans with Disabilities Act of 1990 (“ADA“), 42 U.S.C. §§ 12101-12213, for abuse of discretion, Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). It is clear from the record that amendment of Tompkins‘s complaint to add an ADA claim would have been futile because the claim was untimely, 42 U.S.C. § 12117(a) (adopting the filing requirements of 42 U.S.C. § 2000e-5 for Title I ADA claims); 42 U.S.C. § 2000e-5(e)(1) (after the filing of a complaint in a state with a fair employment agency, such as New York, a charge must be filed with the EEOC within 300 days of the alleged discrimination or within 30 days of notice of termination of state proceedings, whichever comes first). Although the ADA‘s time limits for filing with the EEOC are not “jurisdictional,” and are therefore “subject to waiver, estoppel, and equitable tolling,” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), here, it is clear that such a “rare and exceptional” remedy was not appropriate. See Zerilli-Edelglass v. NYC Transit Authority, 333 F.3d 74, 80 (2d Cir. 2003) (citing examples of where equitable tolling is considered appropriate, such as where a defendant‘s misconduct or a plaintiff‘s medical condition prevented timely filing). Accordingly, the district court did not abuse its discretion in denying Tompkins leave to amend her complaint to add an ADA claim.

Finally, inasmuch as Tompkins now attempts to allege a retaliation claim against her supervisor on appeal, generally this Court will not consider an issue raised for the first time on appeal, see Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), and no circumstances warranting review are present in this case, Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (the bar to raising new issues on appeal may be disregarded if “necessary to remedy an obvious injustice” or “the elements of the claim were fully set forth” in the trial court).

We have reviewed Tompkins‘s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.

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