13-2852-cv
De La Pena v. Metro. Life Ins. Co.


                                     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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th
day of January, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            REENA RAGGI,
            SUSAN L. CARNEY,
                         Circuit Judges.
_____________________________________

ABDON DE LA PENA,

                 Plaintiff-Appellant,

                              v.                                            No. 13-2852-cv

METROPOLITAN LIFE INSURANCE COMPANY, SANG IM,

                 Defendants-Appellees,

KATHY DEAS,

            Defendant.
_____________________________________

FOR PLAINTIFF-APPELLANT:                              Alan E. Wolin, Wolin & Wolin, Jericho, NY.

FOR DEFENDANTS-APPELLEES:                             Stephen E. Tisman, Valerie D. Ringel,
                                                      Margolis & Tisman LLP, New York, NY.
        Appeal from a July 12, 2013 judgment of the United States District Court for the Eastern
District of New York (Arthur D. Spatt, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s judgment is AFFIRMED.

        Plaintiff-Appellant Abdon De La Pena (“De La Pena”) appeals from the District Court’s
judgment dismissing his complaint for failure to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6). 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 dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d
147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to
be true, this tenet is “inapplicable to legal conclusions.” Id.

         Here, an independent review of the record and relevant case law reveals that the District
Court properly dismissed De La Pena’s claim against the defendants. A plaintiff seeking to recover
under Title VII must file a discrimination charge with the EEOC within 300 days of the occurrence
of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). Accordingly, the
District Court properly dismissed as time-barred De La Pena’s Title VII claims based on allegations
of conduct that occurred beyond this 300-day limitation. De La Pena argues on appeal that such
claims are proper pursuant to the so-called “continuing violation” exception, under which “a
plaintiff who files a timely EEOC charge about a particular discriminatory act committed in
furtherance of an ongoing policy of discrimination extends the limitations period for all claims of
discriminatory acts committed under that policy even if those acts, standing alone, would have been
barred by the statute of limitations.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997). Yet De La Pena’s allegations of discriminatory treatment and hostile work environment
amount to “[d]iscrete incidents . . . unrelated to an identifiable policy or practice,” which “will not
ordinarily amount to a continuing violation.” Id. (citation and internal quotations omitted).


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         The District Court dismissed De La Pena’s timely discrimination claims for failure to raise a
facially plausible inference that defendants’ actions were motivated by racial animus. Plaintiff
contends on appeal that by requiring such an inference the District Court disregarded the Supreme
Court’s holding in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), that “an employment
discrimination plaintiff need not plead a prima facie case of discrimination.” Id. at 515; see also
Twombly, 550 U.S. at 570 (reaffirming the continuing vitality of Swierkiewicz). Yet the District Court,
with reliance on Swierkiewicz, expressly recognized that De La Pena need not plead facts sufficient to
establish a prima facie case. That the Court then dismissed plaintiff’s claim for failure to allege facts
showing a plausible inference of discrimination is wholly consistent with Swierkiewicz. The Court
simply reached the conclusion that plaintiff’s bald assertions of discrimination—unsupported by any
meaningful comments, actions, or examples of similarly-situated persons outside of plaintiff’s
protected class being treated differently—were implausible and insufficient to survive a motion to
dismiss.

        Finally, plaintiff contends in conclusory fashion that the District Court erred in dismissing
his hostile work environment and constructive discharge claims. After review, we conclude that the
District Court properly dismissed these claims for the reasons set forth in its comprehensive
opinion.

       We have considered all of De La Pena’s arguments and find them to be without merit.
Accordingly, we AFFIRM the July 12, 2013 judgment of the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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