         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
