Arroyo-Horne v. City of New York

19-2814-cv
Arroyo-Horne v. City of New York


                                  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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 16th day of October, two thousand twenty.

PRESENT:             BARRINGTON D. PARKER,
                     DENNY CHIN,
                                         Circuit Judges,
                     JANE A. RESTANI,
                                         Judge. ∗
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MONICA ARROYO-HORNE,
                 Plaintiff-Appellant,

                              -v-                                                  19-2814-cv

CITY OF NEW YORK,
                                        Defendant-Appellee. ±



- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x




∗
       Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
±      The Clerk of the Court is respectfully directed to amend the caption as set forth above.
FOR PLAINTIFF-APPELLANT:                    MONICA ARROYO-HORNE, pro se, Brooklyn,
                                            New York.

FOR DEFENDANT-APPELLEE:                     DANIEL MATZA-BROWN, Assistant
                                            Corporation Counsel (Melanie T. West,
                                            Assistant Corporation Counsel, on the brief), for
                                            James E. Johnson, Corporation Counsel of the
                                            City of New York, New York, NY.



              Appeal from the United States District Court for the Eastern District of

New York (Brodie, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff-appellant Monica Arroyo-Horne, proceeding pro se, appeals from

a judgment entered July 30, 2019, dismissing her claims against defendant-appellee City

of New York (the "City"). 1 Arroyo-Horne, an administrative aide with the New York

City Police Department (the "NYPD"), sued the City, the NYPD, and certain individuals

affiliated with the NYPD, under Title VII, 42 U.S.C. § 2000 et seq.; the Family Medical

Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; 42 U.S.C. §§ 1981, 1983, and 1985(3); and

state law, alleging discriminatory and retaliatory harassment and mistreatment. In

three decisions, the district court dismissed her claims, which were set forth in three

complaints, for failure to state a claim. We assume the parties= familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.




1      The notice of appeal purports to appeal from a decision entered July 17, 2016, but no
such decision appears in the record.
                                               2
               We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6).

Forest Park Pictures v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012). The

complaint must plead "enough facts to state a claim to relief that is plausible on its face."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

               I.      Waiver of Claims on Appeal

               While we "liberally construe pleadings and briefs submitted by pro se

litigants, reading such submissions to raise the strongest arguments they suggest,"

McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation

marks omitted), pro se appellants must still comply with Federal Rule of Appellate

Procedure 28(a), which "requires appellants in their briefs to provide the court with a

clear statement of the issues on appeal." Moates v. Barkley, 147 F.3d 207, 209 (2d Cir.

1998) (per curiam). Despite affording pro se litigants "some latitude in meeting the rules

governing litigation," we "normally will not[] decide issues that a party fails to raise

in . . . her appellate brief." Id.; see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632-33

(2d Cir. 2016) ("Although we accord filings from pro se litigants a high degree of

solicitude, even a litigant representing h[er]self is obliged to set out identifiable

arguments in h[er] principal brief." (internal quotation marks omitted)); Gerstenbluth v.

Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013) (pro se litigant "waived

any challenge" to the district court's adverse ruling mentioned only "obliquely and in

passing" in opening brief).




                                                 3
               Arroyo-Horne's opening brief raises arguments only with respect to her

FMLA retaliation and interference claims. The brief contains no mention of her 42

U.S.C. §§ 1981 and 1985(3) claims, or her claims under state law. It mentions § 1983

twice, once in the jurisdictional statement and once in the statement of the case, but the

brief contains no argument concerning that claim or why the district court erred in

dismissing it. Similarly, the brief contains passing references to Title VII -- in the

jurisdictional statement and statement of the case -- but raises no arguments with

respect to the district court's September 2018 decision dismissing her Title VII claims for

failure to state a claim or its alternative rulings in the July 2019 decision that she had

both abandoned these claims and failed to state a claim. Accordingly, Arroyo-Horne

has waived all challenges to the dismissal of her non-FMLA claims on appeal. See

Gerstenbluth, 728 F.3d at 142 n.4.

               II.    FMLA Claims

               The district court properly dismissed Arroyo-Horne's FMLA claims for

failure to state a claim in its December 2016, September 2018, and July 2019 decisions.

We liberally construe Arroyo-Horne's brief to challenge the dismissal of the FMLA

claims as set forth in the district court's decisions. See Elliott v. City of Hartford, 823 F.3d

170, 173 (2d Cir. 2016) (per curiam) (absent prejudice to appellees, we "read a pro se

appellant's appeal from an order closing the case as constituting an appeal from all

prior orders"). The district court did not err in holding that Arroyo-Horne failed to

plausibly allege an FMLA claim.


                                                4
              The FMLA "gives eligible employees an entitlement to twelve workweeks

per year of unpaid leave because of a serious health condition that makes the employee

unable to perform the functions of the position of such employee" and generally permits

the employee to "return to the position [s]he held before the leave or its equivalent."

Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006) (internal quotation marks

and alteration omitted; emphasis added).

              A threshold issue for both FMLA interference claims and FMLA

retaliation claims is whether an employee is eligible under the statute to claim its

protections. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016) ("[T]o

prevail on a claim of interference with her FMLA rights, a plaintiff must establish . . .

that she is an eligible employee under the FMLA . . . [and] that she was entitled to take

leave under the FMLA."); Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004)

(per curiam) (holding that for a prima facie case of FMLA retaliation, a plaintiff must

establish that she "exercised rights protected under the FMLA" and "was qualified for

[her] position").

              To be eligible for FMLA leave, an employee must have been employed for

at least twelve months by the employer from whom she is requesting leave, and she

must have worked at least 1,250 hours with that employer in the twelve months prior to

the beginning of her medical leave. 29 U.S.C. § 2611(2)(A); see Kosakow v. New Rochelle

Radiology Assocs., P.C., 274 F.3d 706, 715 (2d Cir. 2001). Arroyo-Horne sufficiently

alleged that she had been employed for at least twelve months at the NYPD: in fact, she


                                              5
alleged she had worked at the NYPD since March 2000. She did not allege, however,

that she had worked 1,250 hours in the 12-month period prior to her requests for FMLA

leave. The district court pointed out her substantive FMLA pleading flaws when it

dismissed her initial complaint in December 2016, and when it dismissed her first

amended complaint in September 2018. Despite this guidance, Arroyo-Horne did not

explicitly plead an FMLA claim in her second amended complaint, mentioning the

FMLA only in passing. Because Arroyo-Horne never pleaded FMLA eligibility in any

of her complaints, the district court did not err in dismissing the FMLA claim for failure

to state a claim. The arguments Arroyo-Horne makes on appeal repeat many of her

allegations of harassing and retaliatory conduct, but do not address the defects in

pleading FMLA eligibility.

                                          * * *

                  We have considered Arroyo-Horne's remaining arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

                                          FOR THE COURT:
                                          Catherine O'Hagan Wolfe, Clerk




                                             6

Share Review:
Yes it is. Based on the user review published on PropertyFraud.com, it is strongly advised to avoid Arroyo-Horne v. City of New York in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from Arroyo-Horne v. City of New York. Lack of accountability is a major factor in determining trust.
Because unlike PropertyFraud.com, other websites get paid to remove negative reviews and replace them with fake positive ones.
Arroyo-Horne v. City of New York is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
>