         11-4679
         Eliacin v. Fiala


                                 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
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 9th day of November, two thousand twelve.
 5
 6       PRESENT:
 7                          Richard C. Wesley,
 8                          Denny Chin,
 9                               Circuit Judges,
10                          David G. Larimer,
11                               District Judge.*
12       _____________________________________
13       BERONNE R. ELIACIN,
14
15                                Plaintiff-Appellant,
16                          v.                                  11-4679
17
18       COUNTY OF BROOME,
19
20                                Defendant-Appellee,
21
22       Barbara Fiala, County of Broome
23       Executive, Willow Point Nursing
24       Home, Steven Reagan, Willow Point
25       Nursing Home Administrator,
26
27                      Defendants.
28       _____________________________________
29


                  *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
 1   FOR PLAINTIFF-APPELLANT:       Beronne R. Eliacin, pro se,
 2                                  Binghamton, NY.
 3
 4   FOR DEFENDANT-APPELLEE:        Robert G. Behnke III, Broome County
 5                                  Attorney, Binghamton, NY.
 6
 7        Appeal from the judgment of the United States District Court

 8   for the Northern District of New York (McAvoy, J.).

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

10   DECREED that the judgment of the district court is AFFIRMED.

11        Plaintiff-Appellant Beronne R. Eliacin, pro se, appeals from

12   the district court’s December 8, 2009 order partially granting

13   the defendants’ motion to dismiss and its October 17, 2011 order

14   and judgment granting the summary judgment motion of the County

15   of Broome (the “County”) and dismissing Eliacin’s action brought

16   pursuant to Title VII of the Civil Rights Act of 1964 (“Title

17   VII”), 42 U.S.C. § 2000e et seq.       We assume the parties’

18   familiarity with the underlying facts, the procedural history of

19   the case, and the issues on appeal.

20        We affirm the district court’s partial dismissal of

21   Eliacin’s claims for failure to state a claim for substantially

22   the reasons set forth in the court’s December 8, 2009 order.

23   None of Eliacin’s allegations or arguments relating to the three

24   claims dismissed by the district court are sufficient “to state a

25   claim to relief that is plausible on its face.”       Ashcroft v.

26   Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

27   omitted).   Although the court dismissed these claims without


                                        2
 1   providing Eliacin an opportunity to amend her complaint, we

2    conclude that a remand for this purpose would be futile.       See

 3   Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

 4          We also affirm the district court’s October 17, 2011 order

 5   and judgment granting the County’s summary judgment motion for

 6   substantially the reasons set forth in that decision.      Eliacin

 7   failed to present a prima facie case of retaliation under Title

 8   VII.       See, e.g., Kessler v. Westchester Cnty. Dep’t of Soc.

 9   Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).      On appeal, Eliacin

10   argues that a February 7, 2008 letter she sent to the County

11   Executive was sufficient to put the County on notice of her Title

12   VII claims.1      Even assuming that Eliacin subjectively believed

13   that the County’s underlying acts were unlawful under Title VII,

14   the contents of the letter were insufficient to put the County on

15   notice that her letter was “directed at conduct prohibited by

16   Title VII.”       Rojas v. Roman Catholic Diocese of Rochester, 660

17   F.3d 98, 107-08 (2d Cir. 2011) (emphasis in original) (citation

18   and internal quotation marks omitted).


            1
            Eliacin moved to attach this letter as an exhibit to her
     reply brief. We deny that motion as unnecessary. The letter is
     included in the record and was considered on appeal. To the
     extent Eliacin requests that we consider a letter attached to her
     reply brief that she sent to the district court regarding a July
     2011 discovery order, we deny her request. Eliacin did not
     properly challenge that discovery order in her opening brief and
     no “manifest injustice” results from this denial. See J.P.
     Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412
     F.3d 418, 428 (2d Cir. 2005). We have, however, considered the
     remaining arguments set forth in her reply brief.


                                          3
1       We have considered Eliacin’s remaining arguments and,

2   after a thorough review of the record, find them to be

3   without merit.

4       For the foregoing reasons, the judgment of the district

5   court is hereby AFFIRMED.

6                               FOR THE COURT:
7                               Catherine O’Hagan Wolfe, Clerk
8
9




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