        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




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