[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 11642 Non

- Argument Calendar

________________________ D.C. Docket No. 6:12

- cv
- 01595

- RBD

- DAB

JORGE VAZQUEZ,
Plaintiff

- Appellant,

versus BARRY MELAMED, Executive Director, Defendant, ORANGE COUNTY SERVICE UNIT,
Defendant

- Appellee.

________________________ Appeal from the United States Di strict Court for the Middle District of Florida

________________________ (March 26, 2015) Case: 14-11642 Date Filed: 03/26/2015 Page: 1 of 42 Before TJOFLAT , MARCUS and WILLIAM PRYOR , Circuit Judges.
PER CURIAM: In this case, Jorge Vazquez sued his former employer, Orange County Service Unit (“OCSU”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

- 2(a), 2000e

- 3(a). OCSU provided a d m i n istr a ti v e s e r v ic e s to t w o

un i on s in t h e O r an g e Co un ty, Florida S c hoo l Dist r ict

— O r a ng e Edu c a ti o n S u p po r t P ro f e ssi ona ls A s s o ci a ti o n (“ O ES P A ” ) a n d Cl a ss r oo m T e a c h e r s A ss o ci a ti o n (“ CT A ” ). In his complaint, Vazquez alleged that OCSU , in violation of Title VII, subjected him to a host ile work environment (Count I), retaliatory discharge (Count II), and disparate treatment (Count III). 1 The District Court granted OCSU summar y judgmen t on Vazquez’s Title VII claims. Vazquez appeal s . We affirm. Title VII prohibits “employers” from discriminating against their employees on the basis of race, color, or national origin. 42 U.S.C. § 2000e

- 2(a). Likewise, it prohibits “employers” from retaliating against an employee because that individual opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e

- 3(a). An “employer” is an entity that has “fifteen or mo re employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar

1 The District Court also granted OCSU summary judgment on Vaz quez’s defamation claim (Count IV). It is not be fore us in this appeal because Vazquez did not challenge the court’s disposition of that claim in his opening brief

.

Case: 14-11642 Date Filed: 03/26/2015 Page: 2 of 43 year.” 42 U.S.C. § 2000e(b). 2 The District Court found that OSCU was not an employer because it did not employ fifteen or more employees durin g the relevant time period . Vazquez challenges this finding. We find no error. V iewed in the light most favorable to Vazquez , the evidence showed that OSCU never employed more than 14 employees during the relevant time period. The Supreme Court has
exp ressly authorized the payroll method as the primary means of determining the
existenc e of an employment relationship. Walters v. Metro. Educ. Enter., Inc., 519
U.S. 202, 207 , 117 S. Ct. 660, 664 , 136 L. Ed. 2d 644 (1997). And OCSU’s payroll records clearly demonstrate d that it never had more than 14 employees on its payroll at any point during the relevant time period, between January 2010 and
December 2012. Although Vazquez argued that OCSU actually employed more
individuals than those listed on it s payroll, he failed to produce any evidence in support of this claim. Vazquez’s conclusory assertion that OCSU employed more than 15 employees cannot save the day

. Holifield v. Reno, 115 F.3d 1555, 1564 n.
6 (11th Cir. 1997). In sum, OCSU was entitled to summary judgment on Vazquez’s Title VII claims.

2 As noted in the style of this case, Vazquez sued his former supervisor, Barry Melamed, in addition to OCSU. M elamed was not a Title VII “employer” and therefore was not subject to suit under the statute. Llampallas v. Mini

- Circuits, Lab, Inc. , 163 F .3d 1236, 1244 (11th Cir. 1998). Case: 14-11642 Date Filed: 03/26/2015 Page: 3 of 44 AFFIRMED. 3

3 We lack jurisdiction to review Vazquez’s argument that the Magistrate Judge er red in denying his motion to compel discovery because he failed to object to the ruling before the District Court. See Maynard v. Bd. of Regents , 342 F.3d 1281, 1286 (11th Cir. 2003) (“F ailure to challenge [a] magistrate judge’s discovery order to [a] district court constitutes waiver of [that] claim on appeal.” (citation omitted) (quotation marks omitted ) ). We also lac k jurisdiction to review Vazquez’s argument that the District C ourt erred in denying his Fed. R. Civ. P. 59 motion to alter or amend ju dgment because his notice of appeal sta ted that he was appealing from the District Court’s order granting summary judgment . Vazquez filed his Rule 59 motion the same day he filed his notice of appeal. We cannot infer that the notice challenged the Distri ct Court’s denial of that motion because the District Court did not deny the motion until two months later. See McDougald v. Jenson , 786 F.2d 1465, 1474 (11th Cir. 1986).

Case: 14-11642 Date Filed: 03/26/2015 Page: 4 of 4