Shahin BAROOR, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Helen Zentner, Ted Radin, and Gary Goldenback, in their Individual and Official Capacities, Defendants-Appellees, 362 F. App'x 157

PRESENT: PETER W. HALL, and DEBRA ANN LIVINGSTON, Circuit Judges, and DENNY CHIN, District Judge.

SUMMARY ORDER Plaintiff-appellant Shahin Baroor appeals from a judgment of the United States District Court for the Eastern District of New York (Gershon, J.), which, in accordance with the court’s memorandum decision and order dated April 3, 2009, granted defendants-appellees’ motion for

summary judgment in its entirety. Appellant claims that the district court erred in granting

summary judgment for appellees on appellant’s employment discrimination claims. We review a district court’s grant of

summary judgment de novo, drawing all inferences in favor of the nonmoving party. See SCR Joint Venture L.P. v. Warshaw-sky, 559 F.3d 133, 137 (2d Cir.2009). While we will not uphold an award of

summary judgment in favor of the defendant if the evidence is sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point to more than a “scintilla” of evidence in support of his position to defeat

summary judgment. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted). “[Cjonclusory statements or mere allegations [are] not sufficient to defeat a

summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002). We review a district court’s application of the relevant statute of limitations de novo, see Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008), and its ruling on equitable tolling for abuse of discretion, see United States v. All Funds Distributed To, or on Behalf of, Weiss, 345 F.3d 49, 54 (2d Cir.2003). We assume the parties’ familiarity with the factual and procedural history of the case, as well as the issues on appeal, which we reference only to the extent necessary to explain our decision to affirm.

We affirm for substantially the reasons stated in the district court’s thorough and well-reasoned opinion. See Baroor v. New York City Dep’t of Educ., No. 06 cv 3965(NG), 2009 WL 959537, at *1 (E.D.N.Y. Apr. 3, 2009). I. Title VII Claims For a Title VII claim arising in New York to be timely, a plaintiff must file the charge with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.1998).

And, while a hostile work environment claim is treated as a continuing violation and treated as timely if one act contributing to the claim occurred within the 300-day period, discrete acts of discrimination such as termination that occur outside the limitations period are considered untimely. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Here, Baroor filed an EEOC charge on June 13, 2006. Because all of the defendants’ alleged misconduct occurred prior to August 17, 2005, the EEOC charge is untimely as to each of Baroor’s Title VII claims.

Title VII’s time limits for filing with the EEOC are not jurisdictional, but, like statutes of limitations, are subject to “waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Equitable tolling is, however, “only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80 (2d Cir.2003) (internal quotation marks, alteration and citation omitted).

Exceptional circumstances that might warrant equitable tolling include “where a plaintiffs medical condition or mental impairment prevented her from proceeding in a timely fashion.” Id. (citing Brown v. Parkchester S.

Condos., 287 F.3d 58, 60 (2d Cir.2002)). “When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has ‘acted with reasonable diligence during the time period she seeks to have tolled,’ and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Id. at 80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir.2002)).

The district court declined to equitably toll the 300-day EEOC filing deadline because it found that Baroor had failed to act with reasonable diligence throughout the time period she seeks to have tolled. A review of the record reveals that Bar-oor failed to adduce evidence demonstrating the extraordinary circumstances that would merit the application of equitable tolling. Baroor argues that her “medical and mental impairment” warrant equitable tolling because her condition indicates that she acted with the requisite diligence. The record, however, does not support this claim.

The district court’s finding is well-supported by the record. Accordingly, the district court did not abuse its discretion in concluding that equitable tolling is not warranted in this case and that Baroor’s Title VII claims are time-barred. II.

Section 1983 Claims “The statute of limitations for claims brought under

Section 1983 is governed by state law, and in this case is the three-year period for personal injury actions under New York State law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.2009). Under New York law, the statute of limitations period may be extended “[i]f a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues.” N.Y. C.P.L.R § 208. Physical ailments, however, do not suffice to invoke the New York tolling provisions. See Eisenbach v. Metro. Transp. Auth., 97 A.D.2d 808 (N.Y.App.Div.1983); see also McBride v.

County of Westchester, 211 A.D.2d 792, 794, 622 N.Y.S.2d 100 (N.Y.A.D.1995). “In § 1983 actions ... a state statute of limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented if possible.” Bd. of Regents of Univ. of the State of New York v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Baroor filed the present action on August 16, 2006. Except for her wrongful retirement claim, each alleged discrete act of discrimination accrued more than three years prior to her filing this action.

Baroor’s untimely claims cannot be deemed timely under the continuing violations theory because her only timely claim arises out of a discrete discriminatory act that is separate from her hostile work environment claim. See Natl. R.R. Passenger Corp. v. Morgan, 536 U.S. at 111-14, 116, 122 S.Ct. 2061. Baroor argues that the district court erred by declining to equitably toll her § 1983 claims because her impairment was a mental impairment that “included physical manifestations.” This argument, however, is without merit. See Baroor, 2009 WL 959537, at *7.

Accordingly, the district court did not abuse its discretion in concluding that equitable tolling is not warranted in this case and that Baroor’s § 1983 claims are time-barred. III. Wrongful Retirement Claims of employment discrimination brought pursuant to 42 U.S.C. § 1983 are analyzed using the burden-shifting framework set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Sorlucco v. New York City Police Dep’t, 888 F.2d 4, 7 (2d Cir.1989) (holding that “[i]n a claim arising under Title VII or

section 1983, a plaintiff ... has the initial burden of establishing a prima facie case of discrimination”). A plaintiff must first present sufficient evidence to establish a prima facie case of discrimination by demonstrating that: (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. McDonnell, 411 U.S. at 802-04, 93 S.Ct. 1817.

The district court determined that Bar-oor failed to present sufficient evidence to establish that she suffered any adverse employment action because she retired at her request and had submitted a retirement application. The court concluded that Baroor thus failed to make out a prima facie case with respect to her claim of wrongful retirement under § 1988, and appellees were entitled to judgment as a matter of law on that claim. Baroor, 2009 WL 959537, at *7-8.

We agree with the district court that Baroor has not made out a prima facie case for wrongful retirement because she failed to demonstrate that she suffered any adverse employment action. Baroor’s testimony that the retirement application was a forgery notwithstanding, she failed to offer any “specific, particularized facts, or expert testimony, to support her claim that the retirement application form — which bears her signature and was notarized by a notary public — was a product of forgery.” Id. at *8 (citing Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (“To defeat

summary judgment ... non-moving parties must do more than simply show that there is some metaphysical doubt as to the material facts, and they may not rely on conclusory allegations or unsubstantiated speculation.”) (internal citations and quotations omitted)). We have considered Baroor’s remaining claims and find them to be without merit. CONCLUSION For the reasons stated above, the judgment of the district court is AFFIRMED. The Honorable Denny Chin, of the United States District Court for the Southern District of New York, sitting by designation.