09-4474-cv
    Perry v. State of New York Department of Labor


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
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DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST C ITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY
ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
    the City of New York, on the 17 th day of September, two thousand ten.

    PRESENT:
               PIERRE N. LEVAL,
               BARRINGTON D. PARKER,
               PETER W. HALL,
                          Circuit Judges.
    _____________________________________

    JESSE PERRY,

                                Plaintiff-Appellant,

                      v.                                                   09-4474-cv

    STATE OF NEW YORK DEPARTMENT
    OF LABOR,

                     Defendant-Appellee.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                           J ESSE P ERRY, pro se, Albany, New York.

    FOR DEFENDANT-APPELLEE:                            R OBERT C. W EISZ, Assistant Solicitor General
                                                       (Andrew M. Cuomo, Attorney General of the
                                                       State of New York, Barbara D. Underwood,
                                           Solicitor General, Michael S. Belohlavek,
                                           Senior Counsel, on the brief), New York, New
                                           York.

       Appeal from a judgment of the United States District Court for the Southern

District of New York (Castel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Jesse Perry, pro se, appeals the district court’s judgment

dismissing his amended complaint alleging unlawful discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §

621 et seq. 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 for failure to state a claim under

Federal Rule of Civil Procedure 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., 

, 152 (2d Cir. 2002).

A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 

, 570 (2007). A claim will have

facial plausibility “when the plaintiff pleads factual content that allows the court to draw




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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 

, 1949 (2009).

       Perry argues that the district court should not have dismissed his retaliation claim

because: (1) the New York State Department of Labor (“DOL”) falsely created the

appearance that the person vacating the employment position he sought had returned to

her position at the DOL, and this created an inference of retaliation; (2) the DOL should

have known about his 2001 termination from a DOL position because he mentioned it in

his 2006 employment application; and (3) the DOL’s conduct in failing to fully disclose

his personnel file in his prior litigation against the DOL gave rise to an inference of

retaliation. However, Perry did not raise the first two of these arguments in the district

court, and we decline to consider them in light of the well established general rule that a

court of appeals will not consider an issue raised for the first time on appeal. See

Singleton v. Wulff, 

, 120-21 (1976); see also Virgilio v. City of New York,

, 116 (2d Cir. 2005).

       We reject Perry’s third argument as meritless. Perry does not explain how any

misconduct by the DOL in the prior action is relevant to the present action, particularly in

light of his acknowledgment that he ultimately received his personnel file before the

commencement of the present action. Furthermore, we agree with the district court that

the amended complaint did not allege facts plausibly suggesting a causal connection

between the adverse action and the protected activity, and an independent review of the



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portions of the personnel file that Perry attached to the amended complaint does not

suggest otherwise. Thus, we affirm the dismissal of the retaliation claim for substantially

the same reasons stated by the district court. See Perry v. State of New York Dep’t of

Labor, No. 08 Civ. 4610, 

(S.D.N.Y. Aug. 20, 2009).

       We have considered all of Perry’s arguments on appeal and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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