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Diprojetto v. Morris Protective Service

United States Court of Appeals, Second Circuit
Jan 15, 2009
306 F. App'x 687 (2d Cir. 2009)

Summary

holding that claims of race, gender, and disability discrimination were not reasonably related to allegations of national origin discrimination raised in EEOC Charge

Summary of this case from Mahamadou v. 1199 Seiu United Healthcare Workers E.

Opinion

No. 07-3008-cv.

January 15, 2009.

UPON DUE CONSIDERATION of this appeal from a judgment of the United States District Court for the Western District of New York (Larimer, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Gene DiProjetto, Rochester, NY, pro se.

Thomas G. Eron, Bond, Schoeneck King, PLLC, Syracuse, NY, for Appellees.

PRESENT: Hon. PETER W. HALL, Hon. CHESTER J. STRAUB, Circuit Judges, and Hon. RICHARD K. EATON, Judge.

The Honorable Richard K. Eaton, Judge, United States Court of International Trade, sitting by designation.


SUMMARY ORDER

In this pro se employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2000e-17, and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112- 12117, plaintiff-appellant Gene DiProjetto appeals from a judgment granting defendant-appellee Morris Protective Service's motion to dismiss for failure to state a claim and sua sponte dismissing DiProjetto's claims against defendant-appellee Perry Wheeler as frivolous and for failure to state a claim. We assume the parties' familiarity with the factual background, procedural history and issues raised in this appeal. For the reasons that follow, we affirm the district court's grant of the motion to dismiss the complaint and its sua sponte dismissal of the amended complaint against Wheeler.

We review de novo the district court's decision, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint for failure to state a claim. We accept all-well pleaded facts as true, considering them in the light most favorable to the plaintiff, mindful that the "need to draw all inferences in the plaintiffs favor has heightened application when the plaintiff is proceeding pro se." McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007). We review de novo the district court's sua sponte dismissal of the complaint pursuant to 28 U.S.C. § 1915(e). Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001).

The plaintiffs claims were properly dismissed for failure to state a claim. The plaintiffs charge filed with the Equal Employment Opportunity Commission ("EEOC") was based on national origin discrimination only. He did not advance to the EEOC his race, gender and disability claims, and they were not administratively exhausted. Nor were they reasonably related to the allegations in the EEOC charge. See Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006). Moreover, DiProjetto failed to allege in the district court proceedings any facts establishing circumstances giving rise to an inference of discrimination based on national origin. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). As for the claims against defendant Wheeler advanced in the amended complaint, the district court on its own motion and pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) properly dismissed them as frivolous and for failure to state a claim. Even when liberally construed, as it must be, the amended complaint fails to allege grounds for imposing liability on Wheeler. Additionally, individuals are not subject to liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000).

The judgment of the district court is AFFIRMED.


Summaries of

Diprojetto v. Morris Protective Service

United States Court of Appeals, Second Circuit
Jan 15, 2009
306 F. App'x 687 (2d Cir. 2009)

holding that claims of race, gender, and disability discrimination were not reasonably related to allegations of national origin discrimination raised in EEOC Charge

Summary of this case from Mahamadou v. 1199 Seiu United Healthcare Workers E.

holding that plaintiff's claims under Title VII and the ADA were properly dismissed because plaintiff failed to include those claims in his EEOC charge

Summary of this case from Petty v. City of N.Y.

holding that plaintiff's claims under Title VII and the ADA were properly dismissed because plaintiff failed to include those claims in his EEOC charge

Summary of this case from Sesay-Harrell v. N.Y.C. Dep't of Homeless Servs.

finding that claims of race, gender, and disability discrimination were not reasonably related to allegations of national origin discrimination raised in EEOC charge

Summary of this case from Roth v. Farmingdale Pub. Sch. Dist.

affirming a district court's decision to sua sponte dismiss the complaint against a non-moving defendant for failure to state a claim while resolving a separate defendant's motion to dismiss

Summary of this case from Baines v. City of N.Y.
Case details for

Diprojetto v. Morris Protective Service

Case Details

Full title:Gene DIPROJETTO, Plaintiff-Appellant, v. MORRIS PROTECTIVE SERVICE, Perry…

Court:United States Court of Appeals, Second Circuit

Date published: Jan 15, 2009

Citations

306 F. App'x 687 (2d Cir. 2009)

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