Philip HATCHER, Plaintiff-Appellant, v. CVS CORPORATION, Defendant-Appellee, 358 F. App'x 270

SUMMARY ORDER Plaintiff-Appellant Hatcher appeals from 1) the district court’s September 30, 2008 order approving the Report and Recommendation of Magistrate Judge Tomlin-son and granting partial

summary judgment to CVS and 2) the district court’s January 26, 2009 dismissal of all remaining claims under Federal Rules of Civil Procedure 16(

f) and 41(b). We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. Hatcher’s complaint listed thirteen causes of action based on Title VII of the Civil Rights Act of 1964, § 16(

b) of the Fair Labor Standards Act of 1938 (“FLSA”), and

Article 6 of the New York Labor Law. The district court granted

summary judgment to CVS on Hatcher’s claims for failure to pay wages under the FLSA; failure to pay wages from September 2000 through July 2005 in violation of New York Labor Law; racial discrimination; retaliatory demotion; and retaliatory discharge. The court denied

summary judgment on the remaining claims, which asserted failure to pay wages from 1999 to September 2000, retaliatory failure to promote, and retaliatory hostile work environment, and it set trial for January 2009. These claims were later dismissed by the trial judge pursuant to Rules 41(

b) and 16(

f) for failure to comply with a court order and failure to file pretrial orders. On appeal, Hatcher did not brief arguments addressing the grant of

summary judgment to CVS for the retaliatory demotion claims. We consider those claims waived. See Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 708 (2d Cir.2007). We review dismissals pursuant to Rule 41(

b) and Rule 16(

f) for abuse of discretion. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.1998); Ashlodge, Ltd. v. Hauser, 163 F.3d 681, 683 (2d Cir.1998) (per curiam) (reviewing a Rule 16(

f) sanction under an abuse of discretion standard), abrogated on other grounds, Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). The district court did not exceed its discretion in dismissing, pursuant to Rules 16(

f) and 41(b), the claims that were set for trial. On the January 26, 2009 trial date, plaintiffs attorney stated that he was not ready to proceed, and he refused to try the case. The district court first granted CVS’s motion for dismissal based on Rule 16(

f) for the plaintiffs attorney’s failure to file an amended joint pretrial order, directly contravening orders of the court as well as local rules. But the district court then analyzed the circumstances in light of the five factors that must be considered in dismissing a case under Rule 41(b), ultimately determining dismissal under this rule was also proper. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001).

After reviewing the plaintiffs long record of delay and missed deadlines leading up to the trial and the plaintiffs refusal to proceed with trial on the date scheduled, we find the district court did not abuse its discretion in dismissing the claims that remained for trial. As for the claims dismissed on

summary judgment, as plaintiff was unprepared to proceed on the designated trial date, there is no reason to believe he would have been more prepared to try additional claims. Thus, had plaintiff obtained the relief that he now seeks and been permitted a trial on those claims that were dismissed, by his own admission and as evidenced by his actions, he would have been unable to go forward. Because we affirm the Rule 16(

f) and 41(

b) dismissal of a limited number of plaintiffs claims, that dismissal subsumes the six additional claims that plaintiff seeks to have reinstated. Accordingly, the judgment of the district court is AFFIRMED. . These six claims were, regardless, properly dismissed on

summary judgment by the district court. On the one possible point of contention, Hatcher's July 6, 2005 letter was insubordinate and was not a protected activity under Title VII. See Matima v. Celli, 228 F.3d 68, 79 (2d Cir.2000) (determining that disruptive and insubordinate complaints of discrimination constitute a basis for adverse action against an employee that does not violate Title VII).