16-4080-cv
`Mira v. Kingston
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`Plaintiff-Appellant,
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`16-4080-cv
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`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.
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`At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
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`Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
`30th day of October, two thousand seventeen.
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`RALPH K. WINTER,
`Present:
`GUIDO CALABRESI,
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`ROSEMARY S. POOLER,
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` Circuit Judges.
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`_____________________________________________________
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`LESLIE MOORE MIRA,
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`JOHN KINGSTON, BETH HARDER, (EVANS), RICHARD RUBIN,
`KEVIN SAVILLE, PLATTS MCGRAW HILL FINANCIAL INC.,
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`Defendants-Appellees.
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`_____________________________________________________
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`Appearing for Appellant:
`Leslie Moore Mira, New York, N.Y.
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`Appearing for Appellee:
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`Gregory Ira Rasin, Proskauer Rose LLP (Michelle Ann Annese, on
`the brief).
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`Appeal from the United States District Court for the Southern District of New York (McMahon,
`J.).
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`1
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`ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
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`AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
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`Leslie Moore Mira, proceeding pro se, appeals from the November 3, 2016 judgment of
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`the United States District Court for the Southern District of New York (McMahon, J.) dismissing
`her Title VII complaint, which claimed gender and national origin discrimination. We assume
`the parties’ familiarity with the underlying facts, procedural history, and specification of issues
`for review.
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`Contrary to defendants’ arguments, we find Mira’s notice of appeal sufficient to confer
`jurisdiction. Federal Rule of Appellate Procedure 3(c) requires a notice of appeal “designate the
`judgment, order, or part thereof being appealed.” Fed. R. App. 3(c)(1)(b); Gonzalez v. Thaler,
`132 S. Ct. 641, 652 (2012) (Rule 3(c)(1) is jurisdictional). An appeal from a final judgment
`brings up interlocutory orders for review. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645
`F.3d 114, 141 n.25 (2d Cir. 2011) (stating that interlocutory orders rendered in a case merge with
`the final judgment, rendering them amenable to appellate review). Mira’s notice of appeal
`designated the November 3, 2016 judgment granting “defendants’ motion to dismiss [the] Title
`VII claims.” Supp. App’x at 59. That designation allows for review of all interlocutory orders in
`a case, see Mickalis Pawn Shop, LLC, 645 F.3d at 141 n.25, which were not immediately
`appealable, see In re Repetitive Stress Injury Litig., 11 F.3d 368, 372 (2d Cir. 1993)
`(consolidation orders are non-final); SEC v. Am. Bd. of Trade, Inc., 830 F.2d 431, 443 (2d Cir.
`1987) (denial of leave to amend is a non-final order). Therefore, we have jurisdiction to review
`the denial of consolidation and the futility of leave to amend.
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`In the main, Mira argues that the district court erred by denying consolidation of this case
`with an action she brought against another former employer, Argus Media. We review the denial
`of a motion to consolidate for abuse of discretion. See In re Repetitive Stress Injury Litig., 11
`F.3d at 373. “A party moving for consolidation must bear the burden of showing the
`commonality of factual and legal issues in different actions, and a district court must examine the
`special underlying facts with close attention before ordering a consolidation.” Id. (internal
`citations omitted). Mira failed to plausibly demonstrate a legal or factual connection between
`her cases against Platts and Argus. In the Argus case, Mira alleged that after officers of two
`companies met the “guardedness” toward her “accelerated.” The district court had the discretion
`to conclude that was not enough to merit consolidation. See In re Repetitive Stress Injury Litig.,
`11 F.3d at 373.
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`“A pro se complaint should not be dismissed without the Court granting leave to amend
`at least once when a liberal reading of the complaint gives any indication that a valid claim might
`be stated.” Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks omitted).
`The district court should have addressed Mira’s requests to amend her complaint, even though
`Mira submitted letters instead of motions. See In re Sims, 534 F.3d 117, 133 (2d Cir. 2008)
`(holding that pro se litigants should be allowed amendment more freely than counsel and that
`their rights should not be impaired by “harsh application of technical rules”(internal citation
`omitted)). However, her amended complaint would not have withstood a motion to dismiss.
`Leave to amend may be denied when amendment would be futile. Nielson, 746 F.3d at 62
`(internal quotation marks omitted). “An amendment to a pleading is futile if the proposed claim
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`could not withstand a motion to dismiss pursuant to [Rule] 12(b)(6).” Lucente v. Int’l Bus.
`Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). We review the denial of leave to amend
`based on futility de novo. Hutchison v. Deutsche Bank Secs. Inc., 647 F.3d 479, 490 (2d Cir.
`2011).
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`Mira wished to present claims under 42 U.S.C. §§ 1981 and 1985(3). Section 1981
`protects against racial discrimination in employment relationships, and most of the substantive
`Title VII standards apply to Section 1981 claims. Patterson v. Cty. of Oneida, 375 F.3d 206, 225
`(2d Cir. 2004). As relevant here, Section 1985(3) requires a conspiracy motivated by “some
`racial or perhaps otherwise class-based, invidious discriminatory animus.” Mian v. Donaldson,
`Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (quoting United Bhd. of
`Carpenters, Local 610 v. Scott, 462 U.S. 825, 829 (1983)).
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`Mira’s only allegation of race-based animus was that a supervisor implied that she was
`involved with illegal drug activity in Mexico. This comment is insufficient to demonstrate a
`hostile work environment leading to Mira’s constructive termination. See Littlejohn v. City of
`N.Y., 795 F.3d 297, 320-21 (2d Cir. 2015) (holding that a plaintiff must show that the
`discriminatory harassment was “severe or pervasive” (quoting Harris v. Forklight Sys., Inc., 510
`U.S. 17, 21 (1993)). Her surveillance allegations lack any link to racial animus. See Gallop v.
`Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (holding that a district court “may dismiss a claim as
`factually frivolous if the sufficiently well-pleaded facts are clearly baseless—that is, if they are
`fanciful, fantastic, or delusional” (internal quotation marks omitted)). Similarly, as noted above,
`Mira’s only allegation to support a conspiracy under § 1985 between Platts and Argus was one
`meeting between the two companies’ officers, and a meeting participant’s later comment that she
`would close her blinds while in New York because of possible surveillance. This comment does
`not plausibly support a conspiracy against Mira, let alone one driven by discriminatory animus.
`See Gallop, 642 F.3d at 369 (explaining that “claims of conspiracy containing only conclusory,
`vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot
`withstand a motion to dismiss” (internal quotation marks omitted)).
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`Mira’s brief did not present any argument that could be construed as challenging the
`time-bar dismissal of her Title VII claims. Her effort to revive those claims in her reply brief is
`unavailing. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009)
`(“[W]e ordinarily will not consider issues raised for the first time in a reply brief.”).
`Accordingly, she has waived these claims on appeal. See LoSacco v. City of Middletown, 71
`F.3d 88, 92-93 (2d Cir. 1995).
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`We have considered the remainder of Mira’s arguments and find them to be without
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`merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
`own costs.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk
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