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.


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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
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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




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