12-1122-cv
Thomas v. Donahoe, et al.


                                   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 25th
day of March, two thousand thirteen.

PRESENT:
            RALPH K. WINTER,
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
                          Circuit Judges.
_____________________________________

ANTHONY T. THOMAS,

                     Plaintiff-Appellant,

                              v.                                                      No. 12-1122-cv

PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, NEW YORK
METRO AREA, PATRICK O’CONNOR, ROBERT CORBELLI, EDWARD DIPASQUALE, MELISSA
HERNIFER, THE NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO,

            Defendants-Appellees.1
_____________________________________

FOR PLAINTIFF-APPELLANT:                                           PAUL E. KERSON, Leavitt, Kerson & Duane,
                                                                   New York, NY.

FOR DEFENDANTS-APPELLEES:                                          JENNIFER ELLEN BLAIN (David S. Jones, on
                                                                   the brief) for Preet Bharara, United States
                                                                   Attorney for the Southern District of New

1   The Clerk of the Court is directed to amend the official caption to conform to the above.
                                                                York, New York, NY, on behalf of Patrick R.
                                                                Donahoe, Postmaster General, United States
                                                                Postal Service, New York Metro Area, Patrick
                                                                O’Connor, Robert Corbelli, Edward
                                                                DiPasquale, and Melissa Hernifer.

                                                                TRAVIS M. MASTRODDI, Cohen, Weiss and
                                                                Simon LLP, New York, NY, on behalf of the
                                                                National Association of Letter Carriers, AFL-
                                                                CIO.

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

York (Cathy Seibel, Judge).

         UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the January 30, 2012 judgment of the District Court

dismissing plaintiff’s complaint in its entirety is AFFIRMED.

         On July 9, 2010, plaintiff Anthony T. Thomas (“plaintiff” or “Thomas”) filed a second

amended complaint (“SAC”) in this action against the United States Postal Service (“USPS”), the

Postmaster General of the United States,2 several individual employees of the Postal Service—

Patrick O’Connor, Robert Corbelli, Edward DiPasquale, and Melissa Hernifer—(jointly “Postal

defendants”), and the National Association of Letter Carriers, AFL-CIO (“NALC”).3 In his SAC,

Thomas brought claims against both the Postal defendants and the NALC for violations of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and, under New York law, for

the intentional or negligent infliction of emotional distress. Thomas, allegedly a member of the

NALC, also brought a claim against the NALC, alleging that it breached its duty of fair

representation to him, and a claim against the Postal defendants, alleging a breach of the USPS’s

collective bargaining agreement with NALC.
2 Plaintiff’s second and third amended complaints named Postmaster General John E. Potter as a defendant. Pursuant
to Federal Rule of Civil Procedure 25(d), Patrick R. Donahoe, who succeeded John E. Potter as Postmaster General, was
thereafter substituted as a defendant.
3 Although Thomas initiated this action pro se, he was represented by counsel when he filed his SAC and in subsequent
proceedings in this matter.
                                                          2
         On August 19, 2011 the District Court dismissed all of plaintiff’s claims, but sua sponte

granted him limited leave to replead his Title VII claim against the Postmaster General and his

emotional distress claims against all the defendants.4 Thomas subsequently filed a third amended

complaint (“TAC”) on November 4, 2011, asserting a Title VII racial discrimination claim against

the Postmaster General and a state law claim for “intentional and/or negligent infliction of

emotional distress” against all defendants.

         On January 30, 2012 the District Court entered judgment dismissing Thomas’s TAC in its

entirety, and this appeal followed.5 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 grant of a motion to dismiss pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure, accepting all factual allegations as true, and drawing all

reasonable inferences in the plaintiff's favor. See Famous Horse Inc. v. 5th Ave. Photo Inc., 

,

108 (2d Cir. 2010). On appeal, Thomas argues that the District Court abused its discretion by, inter

alia, dismissing the majority of the claims asserted in his SAC, granting him only limited leave to

replead his Title VII and emotional distress claims, and dismissing his TAC in its entirety.6

         Having conducted an independent and de novo review of the record in light of these

principles, we affirm the District Court’s dismissal of Thomas’s complaints, substantially for the

reasons stated in Judge Seibel’s thorough and well-reasoned rulings of August 19, 2011 and January

27, 2012.


4 In granting Thomas leave to amend, and file a fourth complaint, the District Court noted both that plaintiff had not
requested that relief and that it would be the final opportunity to amend his complaint.
5 On appeal, Thomas claims that he set forth the facts of a retaliation claim in his TAC, but did not include it as a cause
of action. We note that the District Court, in an abundance of caution, considered and dismissed this possible retaliation
claim. Upon review, we find no error in the District Court’s dismissal of this putative retaliation claim.
6 To the extent that Thomas’s brief on appeal—which is not a model of clarity—asserts wholly new causes of action, we

do not consider them on appeal. See, e.g., Kendall v. Emps. Ret. Plan of Avon Products, 

, 117 (2d Cir. 2009)
(noting that plaintiff may not “effectively amend her complaint on appeal”).
                                                            3
                                       CONCLUSION

       We have considered all of Thomas’s arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the District Court’s January 30, 2012 judgment.

                                                   FOR THE COURT:

                                                   Catherine O’Hagan Wolfe, Clerk




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