Brown v. Research Foundation of SUNY Oneonta , 381 F. App'x 119 ( 2010 )

09-2545-cv
Brown v. Research Foundation of SUNY Oneonta, et al.
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 FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 23rd day of June, two thousand ten.
4 PRESENT:
5
6 JOSEPH M. McLAUGHLIN,
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
11 _______________________________________________
12 ELLEN M. BROWN,
13 Plaintiff-Appellant,
14 v. 09-2545-cv
15
16 RESEARCH FOUNDATION OF SUNY ONEONTA, MELISSA NICOSIA, JOHN SPARACO,
17 EDMOND OVERBEY, BRIDGET FISH-GRAVES, BERTHA RADILOFF,
18 Defendants-Appellees.*
19 ______________________________________________
20
*
The Clerk of the Court is respectfully directed to amend the official caption to conform
to the above.
1
1 FOR PLAINTIFF-APPELLANT: ELLEN M. BROWN , pro se, Otego, New York.
2 FOR DEFENDANTS-APPELLEES: PATRICK J. WALSH , Assistant Solicitor General, for
3 Andrew S. Cuomo, Attorney General, State of New
4 York, Albany, New York, for Appellee Nicosia.
5 SANJEEVE K. DE SOYZA , Bond, Schoeneck & King,
6 PLLC, Albany, New York, for Appellees Research
7 Foundation of SUNY Oneonta, Sparaco, Overbey,
8 Fish-Graves, and Radiloff.
9 Appeal from a judgment of the United States District Court for the Northern District of
10 New York (McAvoy, J.).
11 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the judgment of the district court is AFFIRMED. Appellant’s motion to amend
13 the record on appeal is DENIED.
14 Plaintiff-Appellant Ellen M. Brown, pro se, appeals from a judgment of the United States
15 District Court for the Northern District of New York (McAvoy, J.) dismissing Appellant’s
16 employment discrimination complaint, which asserted claims under Title VII of the Civil Rights
17 Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act
18 of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; the Americans with Disabilities Act of 1990
19 (“ADA”), 42 U.S.C. § 12112 et seq.; and 42 U.S.C. § 1983. We assume the parties’ familiarity
20 with the facts and procedural history of the case and with the issues presented for review.
21 We review de novo a district court’s decision to dismiss a complaint for failure to state a
22 claim, taking all factual allegations in the complaint as true and drawing all reasonable inferences
23 in favor of the plaintiff. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We
24 review orders granting summary judgment de novo and ask whether the district court properly
25 concluded that there was no genuine issue as to any material fact and the moving party was
26 entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,
27 300 (2d Cir. 2003).
2
1 Having conducted an independent and de novo review, we conclude, for substantially the
2 same reasons as the district court, that Appellant failed to timely commence an action in federal
3 court within ninety days after she was issued a right-to-sue letter by the Equal Employment
4 Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(1) (Title VII and ADA claims); 29 U.S.C.
5 § 626(e)(1) (ADEA claims). We conclude that Appellant did not demonstrate extraordinary
6 circumstances that would merit the application of equitable tolling. See Boos v. Runyon, 201
7 F.3d 178, 185 (2d Cir. 2000) (placing the burden on the plaintiff to demonstrate that equitable
8 tolling should be applied, and noting that vague or conclusory assertions are “insufficient to
9 justify any further inquiry into tolling”); see also Baldwin County Welcome Ctr. v. Brown, 466
10 U.S. 147, 151 (1984) (noting circumstances that would justify equitable tolling and that a
11 plaintiff who fails to act diligently may not invoke tolling).
12 We further conclude, for substantially the same reasons as the district court, that
13 Appellant was unable to sustain a retaliation claim under § 1983. The record supports the district
14 court’s conclusion that Appellant’s speech did not meet the legal definition of a matter of public
15 concern because it was “personal in nature and generally related to [Appellant’s] own [work]
16 situation.” Huth v. Haslun, 598 F.3d 70, 74 (2d Cir. 2010) (quoting Saulpaugh v. Monroe Cmty.
17 Hosp., 4 F.3d 134, 143 (2d Cir. 1993)) (internal quotation marks omitted). Moreover, Appellant
18 has not adequately shown that her speech was a motivating factor in her termination. See Clark
19 County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam).
20 We have considered Appellant’s remaining arguments and find them to be without merit.
21 For the reasons stated above, the judgment of the district court is AFFIRMED. Appellant’s
22 motion to amend the record on appeal is DENIED.
23
24 FOR THE COURT:
25 Catherine O’Hagan Wolfe, Clerk
26
3