17-3397 Vlad-Berindan v. The 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 (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 9 th day of July, two thousand nineteen. PRESENT: **DENNIS JACOBS, DEBRA ANN LIVINGSTON,**  **JOSEPH F. BIANCO,** Circuit Judges.

_______________________________________ Lucia Vlad-Berindan, Plaintiff-Appellant , v. 17-3397 NYC Metropolitan Transportation Authority, MTA New York City Tran sit, New York City Transit, MTA New York City Transit, Defendants-Appellees , The City of New York, Defendant .

_______________________________________

FOR PLAINTIFF-APPELLANT: L UCIA V LAD -B ERINDAN , pro se , Ridgewood, NY.FOR DEFENDANTS-APPELLEES: R OBERT K. D RINAN , Executive Agency Counsel, for James B. Henly, General Counsel, New York City Transit Authority, Brooklyn, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Caproni, J .; Freeman, M.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Lucia Vlad-Berindan (“Vlad-Berindan”), proceeding pro se , appeals from orders of the United States District Court for the Southe rn District of New York dismissing her complaint in part, denying leave to file an amended complaint, denying he r motion for default judgment, and granting the defendants’ motion fo r summary judgment on her remain ing claim. She also appeals numerous other preliminary orders. Vlad-Berindan sued four New York City transit entities after she completed an unpaid internship at the New York City Transit Authority (“NYCTA”) and was not hired for a permanent paralegal position, allegi ng that the defendants viol ated state and federal law by failing to pay her a minimum wage and by discriminating and retaliating against her. 1 We assume the parties’ familiarity with the underlying facts, the proc edural history of the case, and the issues on appeal. We review de novo a district court’s orders dismissing a complaint pu rsuant to Fed. R. Civ. P. 12(b)(6), denying leave to amend a complain t as futile, and granti ng summary judgment. See Sousa v. Marquez , 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment); Forest Park Pictures

1 Vlad-Berindan abandoned her age and disability discrimination claims and her defamation and other state-law claims by failing to address them in her appellate brief. See LoSacco v. City of Middletown , 71 F.3d 88, 92 (2d Cir. 1995) (issues not raised in a pro se appellate brief are abandoned). Vlad-Berindan also expressly aba ndoned on appeal her claim that the defendants “misclassified” employees by hiring paralegals as contractors. We therefore decline to address these claims.3 v. Universal Television Network , 683 F.3d 424, 429 (2d Cir. 2012) (Rule 12(b)(6)); Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 185–86 (2d Cir. 2012) (leave to amend). We review for abuse of discretion district court ruli ngs on motions for default judgment and discovery issues. See Wills v. Amerada Hess Corp. , 379 F.3d 32, 41 (2d Cir. 2004) (discovery); Shah v. N.Y.S. Dep’t of Civil Serv. , 168 F.3d 610, 615 (2d Cir. 1999) (default judgment). I. Judicial Authorit y and Judicial Bias Vlad-Berindan primarily argues that the distri ct court and magistrate judges lacked the authority to issue the conteste d orders and were biased agai nst her. These arguments are meritless. Vlad-Berindan’s motions for recusal di d not divest the district court or magistrate judges of jurisdiction over this action, and the magistrate judges act ed within their authority in issuing recommendations. See Fed. R. Civ. P. 72 (permitting refe rral to a magistrate judge for recommendations without the parties’ consent). Her allegations concerning bribery and improper communications with the defendants are frivolous, and her bias claims, which are based on these allegations and on adverse decisions, are also unavailing. See Chen v. Chen Qualified Settlement Fund , 552 F.3d 218, 227 (2d Cir. 2009) (noting that a dverse decisions, without more, “will rarely suffice to provide a reasonable basis” for a judicial bias claim). II. Default Judgment The district court did not abus e its discretion in denying Vlad -Berindan’s motion for default judgment because, as the magistrate judge corr ectly explained in he r August 25, 2017 report and4 recommendation, the defendants did not default. 2
III. Motion to Dismiss Vlad-Berindan argues that the district court erred in (1) dismissing her claims against the New York City Metropolitan Transp ortation Authority (“MTA”); (2) concluding that she was not an “employee” under the Fair Labor Standards Act (“FLSA”); and (3) and denying leave to amend her Title VII discrimination claims. First, Vlad-Berindan failed to object to the magistrate judge’s reco mmendation to dismiss her claims against the MTA. Th is Court has adopted a rule that a failure to timely object to a magistrate judge’s report and recommendation “may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear no tice of the consequences of their failure to object.” United States v. Male Juvenile (95-CR-1074) , 121 F.3d 34, 38–3 9 (2d Cir. 1997). Although this rule is non-jurisdictional and can be excused in the interests of justice, see id. at 39, excusal is not warranted here. Even if Vlad-Berindan were correct that the MTA is liable for the NYCTA’s conduct, all of Vlad-Berin dan’s claims against the NYCTA were properly dismissed for the reasons discussed below. Second, Vlad-Berindan’s brief, liberally construe d, contends that the district court erred in determining that she was not an “employee” under th e Fair Labor Standards Act (“FLSA”) because the test that this Court articulated in Glatt v. Fox Search light Pictures, Inc. , 811 F.3d 528 (2d Cir.

2 To the extent that Vlad-Beri ndan appeals the S.D.N.Y. standing order setting the time to respond, we decline to consider this issue because it is raised for the first time on appeal. See Harrison v. Republic of Sudan , 838 F.3d 86, 96 (2d Cir. 2016).5 2016), is inapplicable to public sect or interns or, in the alternative, because her work replaced work previously completed by a paid employee. The FLSA requires that employers pay thei r “employees” a minimum wage. 29 U.S.C. § 206; see also id. § 203(e)(1) (defining “employee” as an “i ndividual employed by an employer”). However, “[a]n individual who, without promise or expectation of comp ensation, but solely for his personal purpose or pleasure, worked” for an employer is not an “employee” under the FLSA. Tony & Susan Alamo Found. v. Sec’y of Labor , 471 U.S. 290, 295 (1985) (internal quotation marks omitted). “ The test of employment under the [FLSA] is one of ‘economic reality[.]’” Id. at 301 (quoting Goldberg v. Whitaker House Co-op., Inc. , 366 U.S. 28, 33 (1961)).
In Glatt , this Court applied a “primary beneficiar y test” to distinguish employees from nonemployee interns in the private sector context. See 811 F.3d at 536. We articulated a nonexhaustive set of factors to assist in making th is determination, includin g, as relevant here, the extent to which (1) “the intern and the employer clearly understand that ther e is no expectation of compensation,” (2) “the internship is tied to the intern’s formal education program by . . . the receipt of academic credit,” (3) “the internship ’s duration is limited to the period in which the internship provides the intern with beneficial le arning,” and (4) “the inte rn’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.” Id. at 536–37. We have not previously applied this test to public sector internships, and Glatt explicitly limited its discussion to “internshi ps at for-profit employers.” Id. at 536 n.2. We nonetheless agree with the district court that Vlad-Berinda n was not an employee under the FLSA when she interned for the NYCTA. Vlad-Berindan presente d no basis for concluding that the FLSA would6 require a public sector employer to pay an intern under circumstan ces in which a for-profit private employer would be exempt. The factors articulated in Glatt and relied upon by the district court— the expectations of the parties, the educational benefit conferred, and the relationship between the work and an academic program—all apply with equal force to public sector employers and establish the “economic reality” that Vlad-Berinda n did not have an employment relationship with the NYCTA under the FLSA. Tony & Susan Alamo Found. , 471 U.S. at 301. The court properly noted that Vlad-Berindan’s allegation that she completed work previously assigned to a paid employee weighed in favor of th e opposite conclusion, but did not outweigh these other factors. It therefore did not err in dismi ssing Vlad-Berindan’s FLSA claims. Third, the district court did not err in denying Vlad-Berindan leave to amend her discrimination claims, because the complaint did not “suggest[] that [Vlad-Berindan] has a claim that she has inadequately or inar tfully pleaded and that she should therefore be given a chance to reframe.” Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). Vlad-Berindan did not explain how she could cure the defects in these claims if granted leave to amend; instead, she argued that her allegations identifying the race of various NYCTA employ ees proved her discrimination claims. We therefore conclude that amendment of Vlad-Berindan’s disc rimination claims would have been futile. IV. Discovery Rulings Vlad-Berindan next argues that the district court erred in declining some of her subpoena requests. But she does not explain what additional documents she wished to obtain from these sources, whether they were differe nt from documents otherwise avai lable to her, or why additional evidence from these sources would be relevant to this action. Because duplicative and irrelevant7 demands for documents “impos[e] undue burden or expense on a person subj ect to the subpoena,” the court did not abuse its discre tion with respect to Vlad-Berinda n’s subpoena requests. Fed. R. Civ. P. 45(d)(1). V. Summary Judgment Finally, Vlad-Berindan’s challenge to the grant of summary judg ment based on purported inconsistencies in the court’s factual findings and its reliance on her de position transcripts are meritless, substantially for the reasons stated by th e district court in its September 21, 2017 order. Her argument concerning the district court’s alle gedly improper consideration of a “Matter History Report” submitted by the defendants is unavailing because the district court did not rely on this evidence in deciding to grant summary judgment to the defendants on her retaliation claim. We have considered all of Vlad-Berindan’ s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court