    14-2031-cv
    Tremblay v. Mohegan Sun Casino




                          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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 7th day of April, two thousand fifteen.

    PRESENT:
                ROSEMARY S. POOLER,
                SUSAN L. CARNEY,
                      Circuit Judges,
                JOHN GLEESON,1
                      District Judge.
    _____________________________________

    Elizabeth Tremblay,

            Plaintiff-Appellant,

                     v.
                                                                             14-2031-cv
    Mohegan Sun Casino,

          Defendant-Appellee.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                           Elizabeth Tremblay, pro se, Griswold, CT

    FOR DEFENDANT-APPELLEE:                            Proloy K. Das and Andrew L. Houlding,
                                                       Rome McGuigan, P.C., Hartford, CT.

            1
            The Honorable John Gleeson, of the United States District Court for the Eastern District
    of New York, sitting by designation.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Chatigny, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Elizabeth Tremblay, proceeding pro se, appeals from the district court’s

judgment dismissing her discriminatory discharge claims under Title VII of the Civil Rights Act

and the Age Discrimination in Employment Act (“ADEA”). We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court decision dismissing a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1), accepting all material factual allegations as true. Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Dismissal is appropriate “when the

district court lacks the statutory or constitutional power to adjudicate” the matter. Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff bears the burden of proving the

existence of subject matter jurisdiction. Id.

       The district court’s dismissal of plaintiff’s Title VII claim was proper because Title VII

expressly excludes American Indian tribes from its definition of covered employers. 42 U.S.C.

§ 2000e(b). The exclusion extends to the arms and agencies of an American Indian tribe. See

Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 88 (2d Cir. 2001). Because the defendant

here is a corporation owned by an agency of a federally recognized American Indian tribe, see

Kizis v. Morse Diesel Inter., Inc., 260 Conn. 46, 48−49 & n.1 (2002), it is not an employer under

Title VII. Accordingly, the district court lacked subject matter jurisdiction over Tremblay’s Title

VII claim because Congress has expressly exempted the defendant from suit.



                                                 2
       Unlike Title VII’s definition of employer, the ADEA’s definition of employer does not

exclude American Indian tribes. Compare 42 U.S.C. § 2000e(b) (Title VII), with 29 U.S.C.

§ 630(b) (ADEA). Nonetheless, “[a]s a matter of federal common law, an Indian tribe enjoys

sovereign immunity from suit except where ‘Congress has authorized the suit or the tribe has

waived its immunity.’” Garcia, 268 F.3d at 84 (quoting Kiowa Tribe v. Manufacturing Techs, Inc.,

523 U.S. 751, 754 (1998)). Agencies of a tribe enjoy “the same presumption of immunity” in a suit

for damages. Id.; see also Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000).

The Supreme Court has explained that, “[t]o abrogate tribal immunity, Congress must

unequivocally express that purpose,” and “to relinquish its immunity, a tribe’s waiver must be

clear.” C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418

(2001) (internal quotation marks omitted). Congress has not unequivocally expressed its purpose

to abrogate tribal sovereign immunity pursuant to the ADEA, Garcia, 268 F.3d at 86, nor has

plaintiff identified any applicable waiver of immunity from such suits in federal court.

Accordingly, tribal sovereign immunity barred Tremblay’s ADEA claim.

       Accordingly, we AFFIRM the judgment of the district court.

                                                    FOR THE COURT:
                                                    Catherine O=Hagan Wolfe, Clerk




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