            Case: 14-11642   Date Filed: 03/26/2015   Page: 1 of 4




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                             No. 14-11642
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:12-cv-01595-RBD-DAB



JORGE VAZQUEZ,

                                                            Plaintiff-Appellant,

                                  versus

BARRY MELAMED,
Executive Director,

                                                                     Defendant,

ORANGE COUNTY SERVICE UNIT,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 26, 2015)
               Case: 14-11642       Date Filed: 03/26/2015     Page: 2 of 4


Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

       In this case, Jorge Vazquez sued his former employer, Orange County

Service Unit (“OCSU”), under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2(a), 2000e-3(a). OCSU provided administrative services to two

unions in the Orange County, Florida School District—Orange Education

Support Professionals Association (“OESPA”) and Classroom Teachers

Association (“CTA”). In his complaint, Vazquez alleged that OCSU, in violation

of Title VII, subjected him to a hostile work environment (Count I), retaliatory

discharge (Count II), and disparate treatment (Count III).1 The District Court

granted OCSU summary judgment on Vazquez’s Title VII claims. Vazquez

appeals. We affirm.

       Title VII prohibits “employers” from discriminating against their employees

on the basis of race, color, or national origin. 42 U.S.C. § 2000e-2(a). Likewise, it

prohibits “employers” from retaliating against an employee because that individual

opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). An

“employer” is an entity that has “fifteen or more employees for each working day

in each of twenty or more calendar weeks in the current or preceding calendar


       1
          The District Court also granted OCSU summary judgment on Vazquez’s defamation
claim (Count IV). It is not before us in this appeal because Vazquez did not challenge the
court’s disposition of that claim in his opening brief.
                                              2
                Case: 14-11642       Date Filed: 03/26/2015       Page: 3 of 4


year.” 42 U.S.C. § 2000e(b).2 The District Court found that OSCU was not an

employer because it did not employ fifteen or more employees during the relevant

time period. Vazquez challenges this finding. We find no error. Viewed in the

light most favorable to Vazquez, the evidence showed that OSCU never employed

more than 14 employees during the relevant time period. The Supreme Court has

expressly authorized the payroll method as the primary means of determining the

existence of an employment relationship. Walters v. Metro. Educ. Enter., Inc., 519

U.S. 202, 207, 117 S. Ct. 660, 664, 136 L. Ed. 2d 644 (1997). And OCSU’s

payroll records clearly demonstrated that it never had more than 14 employees on

its payroll at any point during the relevant time period, between January 2010 and

December 2012. Although Vazquez argued that OCSU actually employed more

individuals than those listed on its payroll, he failed to produce any evidence in

support of this claim. Vazquez’s conclusory assertion that OCSU employed more

than 15 employees cannot save the day. Holifield v. Reno, 115 F.3d 1555, 1564 n.

6 (11th Cir. 1997). In sum, OCSU was entitled to summary judgment on

Vazquez’s Title VII claims.




       2
          As noted in the style of this case, Vazquez sued his former supervisor, Barry Melamed,
in addition to OCSU. Melamed was not a Title VII “employer” and therefore was not subject to
suit under the statute. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244 (11th Cir.
1998).


                                                3
                Case: 14-11642        Date Filed: 03/26/2015       Page: 4 of 4


       AFFIRMED. 3




       3
           We lack jurisdiction to review Vazquez’s argument that the Magistrate Judge erred in
denying his motion to compel discovery because he failed to object to the ruling before the
District Court. See Maynard v. Bd. of Regents, 342 F.3d 1281, 1286 (11th Cir. 2003) (“Failure to
challenge [a] magistrate judge’s discovery order to [a] district court constitutes waiver of [that]
claim on appeal.” (citation omitted) (quotation marks omitted)). We also lack jurisdiction to
review Vazquez’s argument that the District Court erred in denying his Fed. R. Civ. P. 59 motion
to alter or amend judgment because his notice of appeal stated that he was appealing from the
District Court’s order granting summary judgment. Vazquez filed his Rule 59 motion the same
day he filed his notice of appeal. We cannot infer that the notice challenged the District Court’s
denial of that motion because the District Court did not deny the motion until two months later.
See McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986).
                                                4
