14-2031-cv Tremblay v. Mohegan Sun Casino



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 7 th day of April, two thousand fifteen. PRESENT: ROSEMARY S. POOLER, SUSAN L. CARNEY, Circuit Judges, JOHN GLEESON, 1 District Judge.

_____________________________________ Elizabeth Tremblay, Plaintiff-Appellant ,

v. 14-2031-cv Mohegan Sun Casino, Defendant-Appellee .

_____________________________________ FOR PLAINTIFF-APPELLANT: Elizabeth Tremblay, pro se, Griswold, CT FOR DEFENDANT-APPELLEE: Proloy K. Das and Andrew L. Houlding, Rome McGuigan, P.C., Hartford, CT.

1 The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation.2 Appeal from a judgment of the United States Di strict Court for the District of Connecticut (Chatigny, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Elizabeth Tremblay, proceeding pr o se, appeals from the district court’s judgment dismissing her discriminatory discharge claims under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (“ ADEA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. We review de novo a district court decision dismissing a co mplaint pursuant to Federal Rule of Civil Procedure 12(b )(1), accepting all material factual allegations as true. Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006). Dismi ssal is appropriate “when the district court lacks the statutory or cons titutional power to adjudicate” the matter. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). A plain tiff bears the burden of proving the existence of subject matter jurisdiction. Id. The district court’s dismissal of plaintiff’ s Title VII claim was pr oper because Title VII expressly excludes American Indian tribes from its definition of covered employers. 42 U.S.C. § 2000e(b). The exclusion extends to the arms a nd agencies of an American Indian tribe. See Garcia v. Akwesasne Housing Authority , 268 F.3d 76, 88 (2d Cir. 2001). Because the defendant here is a corporation owned by an agency of a federally recognized American Indian tribe, see Kizis v. Morse Diesel Inter., Inc. , 260 Conn. 46, 48

− 49 & n.1 (2002), it is not an employer under Title VII. Accordingly, the distri ct court lacked subject matter jurisdiction over Tremblay’s Title VII claim because Congress has expressly exempted the defendant from suit.3 Unlike Title VII’s definition of employer, the ADEA’s definition of employer does not exclude American Indian tribes. Compare 42 U.S.C. § 2000e(b) (Title VII), with 29 U.S.C. § 630(b) (ADEA). Nonetheless, “[a]s a matter of federal common law, an Indian tribe enjoys sovereign immunity from suit except where ‘Congre ss has authorized the su it or the tribe has waived its immunity.’” Garcia , 268 F.3d at 84 (quoting Kiowa Tribe v. Manufacturing Techs, Inc. , 523 U.S. 751, 754 (1998)). Agencies of a tribe enjoy “the same pres umption of immunity” in a suit for damages. Id. ; see also Bassett v. Mashantucket Pequot Tribe , 204 F.3d 343, 358 (2d Cir. 2000). The Supreme Court has explained that, “[t]o abrogate tribal immunity, Congress must unequivocally express that purpose,” and “to relinqui sh its immunity, a tribe’s waiver must be clear.” C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla. , 532 U.S. 411, 418 (2001) (internal quotation marks omitted). Congre ss has not unequivocally expressed its purpose to abrogate tribal sovereign immunity pursuant to the ADEA, Garcia , 268 F.3d at 86, nor has plaintiff identified any applicable waiver of immunity from such suits in federal court. Accordingly, tribal sovereign immuni ty barred Tremblay’s ADEA claim. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk