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
4