Summary
finding a failure to state a retaliation claim where the alleged adverse employment action occurred prior to the protected activity (citing Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002))
Summary of this case from Mucciarone v. Initiative, Inc.Opinion
No. 07-2747-cv.
February 10, 2009.
Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Michael McAllister, Jamaica, NY, pro se.
Clifford R. Atlas, Jackson Lewis, LLP, New York, NY, for Appellee.
SUMMARY ORDER
We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.
Michael McAllister appeals from a judgment of the District Court dismissing his claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"). We agree with the District Court that McAllister's discrimination claim was time barred because McAllister first filed an administrative complaint with the New York State Division of Human Rights more than 300 days after his termination, the only alleged act of discrimination. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999). McAllister argues that he was entitled to wait to file his administrative charge until he learned his termination was discriminatory, but no such tolling exists given the facts as McAllister alleges them. See Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985). Nor did the pendency of an arbitration proceeding toll the time limit. See Delaware State Coll. v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).
McAllister failed to state a claim for retaliation because the only adverse employment action by his employer that McAllister alleges is his termination, which occurred before his protected activity, filing a charge with the administrative agency. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (stating requirements for a prima facie case of retaliation including alleging facts that demonstrate a causal connection between the alleged adverse action and the protected activity). To the extent McAllister's retaliation claim is based on the conduct of his union at his arbitration, he failed to exhaust this claim by filing an administrative complaint. See 42 U.S.C. § 12117(a) (adopting Title VII procedures for ADA claims); Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001) (describing Title VII's exhaustion requirement).
We therefore affirm the judgment of the district court.