Wilson v. Family Dollar Stores , 374 F. App'x 156 ( 2010 )

08-5482-cv
Wilson v. Family Dollar Stores
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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 20th day of April, two thousand ten.
PRESENT:
GUIDO CALABRESI,
CHESTER J. STRAUB,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
Elisa Wilson,
Plaintiff-Appellant,
v. 08-5482-cv
Family Dollar Stores,
Defendant-Appellee.
_______________________________________
FOR APPELLANT: Elisa Wilson, pro se, Beaufort, SC.
FOR APPELLEE: Keith J. Rosenblatt, Littler Mendelson, P.C.,
Newark, NJ.
Appeal from the United States District Court for the Eastern
District of New York (Trager, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Elisa Wilson, pro se, appeals from the judgment of
the United States District Court for the Eastern District of New
York (Trager, J.), granting summary judgment in favor of Appellee
in Appellant’s employment discrimination action brought under
Title VII, 42 U.S.C. § 2000e et seq., the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et
seq. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
As a preliminary matter, we address Appellant’s arguments on
appeal relating to claims dismissed by the district court prior
to summary judgment. Appellee correctly points out that
Appellant’s notice of appeal did not include any reference to the
district court’s order partially dismissing Appellant’s
complaint. Although pro se notices of appeal should be liberally
construed, Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir. 1997),
Federal Rules of Appellate Procedure 3 and 4 are jurisdictional
and the failure to identify an order in a notice of appeal
deprives us of jurisdiction to review that order, New Phone Co.
2
v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007) (holding
that this Court’s jurisdiction “depends on whether the intent to
appeal from that decision is clear on the face of, or can be
inferred from, the notice[] of appeal”). Thus, because the
notice of appeal did not mention the district court’s dismissal
order and Appellant’s intent to appeal from it cannot be inferred
from her notice of appeal, we lack jurisdiction to review the
dismissal of Appellant’s race, color, religion, and age
discrimination claims.
We review an order granting summary judgment de novo, and
ask whether the district court properly concluded that there were
no genuine issues of material fact and that the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In
determining whether there are genuine issues of material fact, we
are “required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir. 2003).
Having conducted an independent and de novo review, we
conclude, for substantially the same reasons stated by the
district court, that Appellant failed to establish that she was
disabled within the meaning of the ADA or that she was able to
perform the essential functions of her position; that any
circumstances existed giving rise to an inference of
3
discrimination; that any of her employer’s alleged conduct could
support a hostile work environment or constructive discharge
claim; that Appellant had engaged in any protected activity under
Title VII; or that she had been denied any discovery materials to
which she had been entitled.
We do not consider Appellant’s claims, raised for the first
time on appeal regarding her claim for disability benefits and a
“breach of trust.” See Singleton v. Wulff, 428 U.S. 106, 120-21
(1976) (“It is the general rule . . . that a federal appellate
court does not consider an issue not passed upon below.”).
Furthermore, even if Appellant’s conspiracy claim, first raised
in opposition to summary judgment, was properly before this
Court, her conclusory allegations are insufficient to state a
claim. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.
1997).
We have carefully considered Appellant’s remaining claims
and find them to be without merit.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4