12-2928-cv
Zaltz v. Wells Fargo Home Mortgage


                               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.

        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
16th day of July, two thousand thirteen.

PRESENT:
            ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________

LISA ZALTZ,

                        Plaintiff-Appellant,

                v.                                                  12-2928-cv

WELLS FARGO HOME MORTGAGE,

                        Defendant-Appellee.

_____________________________________


Appearing for Appellant:                             Lisa Zaltz, pro se, Lawrence, NY

Appearing for Appellee:                              Mary Augusta Smith, Jackson Lewis LLP,
                                                     White Plains, NY
       Appeal from an order of the United States District Court for the Southern District of New
York (Jones, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.

        Appellant Lisa Zaltz, proceeding pro se, appeals the district court’s order denying her
reconsideration motion. Zaltz had brought a state law breach of contract and wrongful
termination action, which the district court had construed as also brought pursuant to Title VII,
and on which the district court had granted Wells Fargo Home Mortgage’s motion for summary
judgment. The district court construed the instant motion as a motion for reconsideration of the
grant of summary judgment pursuant to Federal Rule of Civil Procedure 60(b). We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

        As an initial matter, because Zaltz’s reconsideration motion was not filed within 28 days
of the district court’s entry of judgment, her notice of appeal is timely as to the denial of the
reconsideration motion but not as to the underlying judgment. See “R” Best Produce, Inc. v.
DiSapio, 540 F.3d 115, 121-22 & n.5 (2d Cir. 2008); Branum v. Clark, 927 F.2d 698, 704 (2d
Cir. 1991). We review the district court’s denial of a motion for reconsideration under Rule
60(b) for abuse of discretion. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d
Cir. 2011). “A court abuses its discretion when (1) its decision rests on an error of law or a
clearly erroneous factual finding; or (2) cannot be found within the range of permissible
decisions.” Id.

        Here, an independent review of the record and relevant case law reveals that the district
court did not abuse its discretion in denying reconsideration, as Zaltz had made only conclusory
allegations of disability before judgment was entered and did not present with any particularity
evidence of her mental illness and how it interfered with bringing her claims. Additionally,
although it appears that a supervisor may actually have contacted Zaltz by email after she was
fired, Zaltz has provided only one email substantiating this claim, in which the supervisor does
not engage in harassing conduct. In any case, this email was not a part of the record below, and
it cannot be considered now. See Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir.
1975).

        The district court also correctly determined that Zaltz’s complaint did not raise a Title
VII claim, and appropriately corrected its earlier order on that topic. Even assuming that Zaltz
intended to file a Title VII claim, however, this claim cannot proceed because Zaltz did not file a
timely complaint with the EEOC. Equitable tolling of the time to file an EEOC complaint
generally requires that a plaintiff act with reasonable diligence during the period she seeks to
have tolled. See Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003).
The district court’s conclusion that Zaltz did not do so in pursuing her state law claims applies
with equal force to its conclusion that she did not do so with respect to her federal claims.


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        Zaltz also raises several new arguments for the first time on appeal which we decline to
consider here. See In re Flanagan, 503 F.3d 171, 182 (2d Cir. 2007). We have considered all of
Zaltz’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the
order of the district court.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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