Yu v. City of New York

18-3838
Yu v. City of New York

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
3
rd
day of February, two thousand twenty.

Present: ROSEMARY S. POOLER,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.

_____________________________________________________

LAURENE YU,

Plaintiff-Appellant,

v. 18-3838

CITY OF NEW YORK, ADMINISTRATION FOR CHILDREN’S
SERVICES,
1

Defendants-Appellees.
_____________________________________________________

Appearing for Appellant: Laurene Yu, pro se, New York, N.Y.

Appearing for Appellees: Fay Ng and Jane L. Gordon, Assistant Corporation Counsel, for
Zachary W. Carter, Corporation Counsel of the City of New York,
New York, N.Y.

1
The Clerk of Court is directed to amend the caption as above.

2
Appeal from the United States District Court for the Southern District of New York (Sweet, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED in part and AFFIRMED in part.

Appellant Laurene Yu, proceeding pro se, appeals from the November 29, 2018 opinion
and order of the United States District Court for the Southern District of New York (Sweet, J.),
dismissing Yu’s complaint for lack of subject-matter jurisdiction and failure to state a claim. Yu
claimed the defendants discriminated against her throughout her employment based on her age,
race, color, religion, and national origin under Title VII, 42 U.S.C. § 2000e, et seq.; the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; 42 U.S.C. §§ 1981,
1983; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290, et seq.; and
the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101, et seq..
Liberally construed, she also raised claims of retaliation and a hostile work environment. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

We review a district court’s dismissal of a complaint de novo, taking as true all of the
allegations contained in the complaint and drawing all inferences in the plaintiff’s favor. Weixel
v. Bd. of Educ., 287 F.3d 138, 145 (2d Cir. 2002). “A pro se complaint should not be dismissed
unless it appears beyond doubt that the plaintiff[] can prove no set of facts in support of [his]
claim[s] which would entitle [him] to relief.” Id. (internal quotation marks and citation omitted).
We must construe the complaint “broadly,” especially when the complaint alleges civil rights
violations. Id. at 146 (internal quotation marks omitted).

Although Yu seeks leave to amend, we note at the outset that Yu does not argue in this
appeal that the district court erred in dismissing her state and city discrimination claims as
alleged in her complaint. The district court properly concluded that part of Yu’s claims are
barred by the applicable statutes of limitations. Yu’s state and city discrimination claims are
subject to a three-year statute of limitations, Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229,
238 (2d Cir. 2007), as is her Section 1983 claim, Duplan v. City of New York, 888 F.3d 612, 619
(2d Cir. 2018). Yu filed her complaint on September 25, 2017. Thus, any such discrimination
claims based on acts occurring prior to September 25, 2014 are time-barred.

The district court also properly concluded that part of Yu’s Title VII and ADEA disparate
treatment and retaliation claims were time-barred. As a precondition to bringing suit in federal
court, a plaintiff must first pursue available administrative remedies and file a timely complaint
with the EEOC within 300 days of an unlawful employment practice. 42 U.S.C. § 2000e-5(e),
(f); 29 U.S.C. § 626(d). Yu filed her EEOC charge on July 25, 2017, so any claims based on
discrete acts occurring prior to September 28, 2016 were untimely.

However, Yu’s hostile work environment claim would not necessarily be time-barred.
For hostile work environment claims, only one alleged act must fall within the statute of
limitations, and so long as that act is part of the same unlawful practice as the earlier acts, the
entire period of hostile environment may be considered. Petrosino v. Bell Atl., 385 F.3d 210, 220

3
(2d Cir. 2004). Because the district court failed to account for Yu’s hostile work environment
claim in its timeliness analysis, we remand on this claim.

The district court next concluded that the election of remedies doctrine bars Yu’s state
and city claims. A plaintiff may not bring NYSHRL and NYCHRL claims in federal court if
those claims have already been adjudicated before the New York State Division of Human
Rights (“SDHR”). See York v. Ass’n of Bar of the City of New York, 286 F.3d 122, 127 (2d Cir.
2002). The district court held that the claims were barred because they were included in Yu’s
2012 complaint to the SDHR. We disagree. While Yu did raise claims of discrimination before
the SDHR in 2012, those claims relied on different factual assertions than the present claims
alleged in her complaint. The claim addressed by the SDHR—Postiglione allegedly asking why a
promotion did not go to “the Asian girl”—is not identical to the comment asserted in the present
complaint—Postiglione allegedly stating that “they should go after the Asian girl.” Though the
language of the two comments is very similar, the complaint states that the “they should go after
the Asian girl” comment occurred in 2013 while Postiglione’s promotion comment occurred in
2012. We are therefore not convinced that these two comments relate to the same incident.
Moreover, the 2012 SDHR proceeding does not bar Yu’s claims based on acts that occurred from
2013 to present. We accordingly vacate and remand on those claims as well, to the extent they
are not time-barred.

We also vacate in part the district court’s dismissal with prejudice for failure to state a
cause of action under federal law or the NYSHRL. Typically, a pro se plaintiff must be
“grant[ed] leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (internal quotation marks and citation omitted). However, leave to amend need not be
granted where amendment would be futile because the problems with the complaint’s claims are
substantive and not the result of inartful pleading. Id. The district court based its dismissal with
prejudice on futility grounds.

Yu’s Section 1981 claims were properly dismissed, although for different reasons than
those given by the district court. We have held that Ҥ 1981 does not provide a separate private
right of action against state actors.” Duplan, 888 F.3d at 621 (dismissing discrimination claims
against city employer brought under Section 1981 as opposed to Section 1983). Thus, Yu’s
Section 1981 claim fails as a matter of law, and no amendment could overcome this deficiency.

Amendment with regard to Yu’s time-barred claims is also futile, but her timely claims
may survive if properly pleaded. While we agree with the district court that Yu’s allegations with
respect to the remaining claims are conclusory, it is not at all clear that Yu could never
sufficiently plead her timely claims. The deficiencies of her complaint with respect to these
claims were largely due to a lack of factual detail. But Yu raised new factual allegations in her
opposition to the motion to dismiss and in her appellate brief that support her claims of
discrimination—indicating that she may be able to successfully amend her complaint to bolster
her claims.

4
The district court also declined to exercise supplemental jurisdiction over—and therefore
dismissed—Yu’s remaining claims under the NYCHRL. As we remand to the district court, we
vacate this dismissal.

Finally, we decline to decide whether Yu’s claims are barred by collateral estoppel
because her discrimination claims were rejected by Administrative Law Judges (“ALJs”) in
administrative proceedings. This argument was not addressed by the district court, the record
does not clearly show that all of Yu’s present claims were addressed by the ALJs, and the present
litigation is still in early stages. We are therefore not in a position to decide this issue in the first
instance.

We have considered the remainder of Yu’s arguments and find them to be without merit.
We vacate the district court’s dismissal of Yu’s hostile work environment and timely NYSHRL,
NYCHRL, Section 1983, Title VII, and ADEA claims; affirm the district court’s dismissal of
Yu’s Section 1981 and untimely NYSHRL, NYCHRL, Section 1983, Title VII, and ADEA
claims; and remand for further proceedings consistent with this order. Each side to bear its own
costs.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk