Filed: Mar. 16, 2012
Latest Update: Feb. 22, 2020
Summary: 11-516-cv Feliciano v. 131st Block Ass’n Inc. 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: 11-516-cv Feliciano v. 131st Block Ass’n Inc. 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 “..
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11-516-cv
Feliciano v. 131st Block Ass’n Inc.
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Daniel Patrick Moynihan United States
3 Courthouse, 500 Pearl Street, in the City of New York, on the 16th
4 day of March, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges,
10 JED S. RAKOFF,
11 District Judge.1
12 _____________________________________
13
14 Maling Feliciano,
15
16 Plaintiff-Appellant,
17
18 v. 11-516-cv
19
20 131st Block Association Inc., Jimmy
21 Stallings,
22
23 Defendants-Appellees.
24 _____________________________________
25
26 FOR PLAINTIFF-APPELLANT: Maling Feliciano, pro se, Bronx,
27 NY.
28
29 FOR DEFENDANTS-APPELLEES: No appearance.
1
The Honorable Jed S. Rakoff, United States District Judge for
the Southern District of New York, sitting by designation.
1
1 Appeal from the judgment of the United States District Court
2 for the Southern District of New York (McMahon, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Plaintiff-Appellant Maling Feliciano (“Appellant”), pro se,
6 appeals from an award of summary judgment in favor of the
7 Defendants-Appellees (“Appellees”) in her employment discrimination
8 action brought pursuant to Title VII of the Civil Rights Act of
9 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Age
10 Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
11 and the New York State and New York City Human Rights Laws, N.Y.
12 Exec. Law § 290 et seq.; N.Y.C. Admin. Code § 8-101 et seq. We
13 assume the parties’ familiarity with the underlying facts, the
14 procedural history of the case, and the issues on appeal.
15 We review orders granting summary judgment de novo. See
16 Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.
17 2003). “Summary judgment is appropriate only if the moving party
18 shows that there are no genuine issues of material fact and that
19 the moving party is entitled to judgment as a matter of law.”
Id.
20 “In determining whether there are genuine issues of material fact,
21 we are required to resolve all ambiguities and draw all permissible
22 factual inferences in favor of the party against whom summary
23 judgment is sought.” Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir.
24 2003) (internal quotation marks omitted). Summary judgment is
25 appropriate “[w]here the record taken as a whole could not lead a
2
1 rational trier of fact to find for the non-moving party.”
2 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
3 587 (1986).
4 The gravamen of Appellant’s case is that she was placed on
5 probation in 2007 and terminated in 2008, allegedly as a result of
6 her employer’s race- and age-based animus. However, as the
7 district court properly concluded, the undisputed evidence (in the
8 form of the employer’s payroll records) shows that Appellant’s
9 employer never “ha[d] fifteen or more employees for each working
10 day in each of twenty or more calendar weeks in” these years or in
11 the “preceding calendar year,” as required for Title VII to apply
12 to the employer’s conduct.2 42 U.S.C. § 2000e(b). This fact also
13 precludes application of the ADEA, which only applies to employers
14 “who ha[ve] twenty or more employees for each working day in each
15 of twenty or more calendar weeks in the current or preceding
16 calendar year.” 29 U.S.C. § 630(b).
17 Appellant’s complaint also contains conclusory allegations
18 concerning instances when she was verbally abused, assigned duties
19 that were not within her job description, and prohibited from
20 speaking Spanish. To the extent these instances occurred in 2007
2
Our conclusion is unaltered by the reproductions of cash
vouchers which Appellant has attached to her brief to this Court.
Even assuming arguendo that these materials are properly before us
for consideration, we note that they only suggest that persons not
on the employer’s payroll were from time to time hired to perform
repair work or other occasional services. They do not suggest that
these persons were employed by the employer “each working day in
each of twenty or more calendar weeks in” any relevant year. 29
U.S.C. § 630(b); 42 U.S.C. § 2000e(b).
3
1 or 2008, they cannot serve to impose liability under Title VII or
2 the ADEA for the reasons discussed above. Appellant does not in
3 her brief challenge the district court’s conclusion that, insofar
4 as her claims may be based on conduct prior to these years, they
5 are time-barred. See 42 U.S.C. § 2000e-5(e)(1) (requiring filing
6 of charge with Equal Employment Opportunity Commission within 300
7 days of allegedly unlawful employment practice); 29 U.S.C. §
8 626(d)(1) (same). Accordingly, she has waived any such challenge
9 on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93
10 (2d Cir. 1995).
11 Finally, we note that there is nothing in the record or
12 Appellant’s brief to suggest that the district court abused its
13 discretion in declining to exercise supplemental jurisdiction over
14 Appellant’s state and local law claims. See Valencia ex rel.
15 Franco v. Lee,
316 F.3d 299, 305 (2d Cir. 2003).
16 We have considered all of Appellant’s remaining arguments and
17 find them to be without merit. Accordingly, we AFFIRM the judgment
18 of the district court.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4
