DOLLINGER v. NYSIF (2020)

SUMMARY ORDER

Robert Dollinger, proceeding pro se, appeals from orders of the United States District Court for the Northern District of New York (D'Agostino, J.), dated October 9, 2018 and September 26, 2019, which became final in a judgment entered September 26, 2019. The October 9, 2018 order dismissed Dollinger's claims for sexual orientation discrimination and retaliation under Title VII, 42 U.S.C. § 2000e et seq., and the September 26, 2019 order granted summary judgment in favor of Dollinger's employer, the New York State Insurance Fund (NYSIF), as to Dollinger's claim of a hostile work environment in violation of Title VII.¹ We assume the parties’ familiarity with the underlying facts and prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Dollinger appeals the District Court's dismissal pursuant to Federal Rule of Civil Procedure 12(c) of his claims of sexual orientation discrimination and retaliation in violation of Title VII. “We review de novo the dismissal of claims pursuant to a Rule 12(c) motion for judgment on the pleadings, accepting the allegations in the amended complaint as true and drawing all reasonable inferences in favor of the plaintiff.” Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (quotation marks omitted). For substantially the reasons stated by the District Court in its October 9, 2018 order, we conclude that the District Court correctly dismissed Dollinger's claims of discrimination and retaliation in violation of Title VII.

Dollinger also appeals the District Court's grant of summary judgment dismissing Dollinger's claim of a hostile work environment in violation of Title VII. We review orders granting summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor. See Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). Summary judgment is appropriate if “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).

Dollinger principally raises two arguments on appeal in connection with his hostile work environment claim. First, Dollinger argues that the District Court erred in relying on Dollinger's deposition testimony to establish that Dollinger's allegations that he received sexually graphic and offensive images in the workplace were untimely. Second, Dollinger characterizes the discriminatory conduct he suffered as “ongoing,” which we construe as a challenge to the District Court's holding that the continuing-violation doctrine does not render timely Dollinger's otherwise time-barred allegations. For substantially the reasons stated by the District Court in its September 26, 2019 order, we conclude that Dollinger's allegations relating to the images he received in the workplace were untimely and that the continuing-violation doctrine does not apply to extend the limitations period here.²

We have considered Dollinger's remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

FOOTNOTES

1.   We conclude that the language in Dollinger's notice of appeal, though very general, nonetheless gave NYSIF sufficient notice that Dollinger meant to appeal the District Court's judgment of September 26, 2019. Because earlier orders in a proceeding are ordinarily deemed to merge with the judgment for the purpose of permitting appellate review, see Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir. 1999), we understand Dollinger's appeal to encompass the two orders mentioned above.

2.   While we “liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest,” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017), we “normally will not[ ] decide issues that a party fails to raise in his ․ appellate brief,” Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Accordingly, we need not address the balance of the District Court's hostile work environment analysis.