09-4722-cv

Lukasiewcz-Kruk v. Tse

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 Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 17 day of November, two thousand ten. th

PRESENT:

ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY, 

Circuit Judges. 

__________________________________________

Monika Lukasiewicz-Kruk,

Plaintiff-Appellant, 

 v. 09-4722-cv

Greenpoint YMCA, and YMCA of Greater NY,

Defendants-Appellees.

__________________________________________

 

FOR APPELLANT: Monika Lukasiewicz-Kruk, pro se, Middle

Village, NY.

FOR APPELLEES: Lori Diane Bauer, Jackson Lewis LLP, New

York, NY.

Appeal from a judgment of the United States District Court

for the Eastern District of New York (Ross, J.).
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UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant Monika Lukasiewicz-Kruk, pro se, appeals the

district court’s judgment granting the motion of the Greenpoint

YMCA and the YMCA of Greater New York (collectively, the “YMCA”)

for summary judgment and dismissing her employment discrimination

complaint. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

We review an order granting summary judgment de novo and ask

whether the district court properly concluded that there were no

genuine issues of material fact and that the moving party was

entitled to judgment as a matter of law. See Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In

determining whether there are genuine issues of material fact, we

are "required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary

judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d

Cir. 2003) (quotation marks omitted). However, "conclusory

statements or mere allegations [are] not sufficient to defeat a

summary judgment motion." Davis v. State of New York, 316 F.3d

93, 100 (2d Cir. 2002). 

Having conducted an independent and de novo review of the

record in light of these principles, we affirm the district
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court's judgment for substantially the same reasons stated by the

district court in its thorough and well-reasoned decision. The

district court's decision is not undermined by the argument in

Lukasiewicz-Kruk's brief that, in granting the YMCA's summary

judgment motion, the court failed to mention various factual

allegations. A majority of these allegations involve conduct

allegedly engaged in by Loretta Trapani, and, as the district

court concluded, there is no evidence in the record that Trapani

was involved in the adverse employment actions at issue. 

Additionally, several allegations relate to Lukasiewicz-Kruk's

qualifications for the Associate Executive Director position.

However, the district court properly concluded that

Lukasiewicz-Kruk's credentials were not “so superior to the

credentials of the person selected for the job that no reasonable

person, in the exercise of impartial judgment, could have chosen

the candidate selected over the plaintiff for the job in

question.” See Byrnie v. Town of Cromwell, Bd. of Educ., 243

F.3d 93, 103 (2d Cir. 2001) (internal quotation marks omitted).

Lukasiewicz-Kruk also argues that the district court erred

in declining to apply the continuing violation theory to her

time-barred claims, because "prior acts might be offered as

background in support of acts upon which a timely claim is

based," and because the YMCA's failure to promote her and

decision to terminate her was based on subjective criteria.

However, it is not clear how these contentions establish the
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existence of a continuing violation. Recovery for discrete acts

of discrimination that occur outside of the applicable

limitations period is precluded, even if the acts are related to

acts alleged in timely filed charges. See Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002). Moreover,

Lukasiewicz-Kruk has not established the existence of a

discriminatory policy or mechanism, which is required under the

continuing violation theory. See Quinn v. Green Tree Credit

Corp., 159 F.3d 759, 765 (2d Cir. 1998).

We have considered Lukasiewicz-Kruk’s other arguments on

appeal and have found them to be without merit. Accordingly, the

judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk