MAGNONI v. SMITH & LAQUERCIA No. 10-1103-cv.
RENATA MAGNONI, Plaintiff-Counter-Defendant-Appellant, v. SMITH & LAQUERCIA, THOMAS LAQUERCIA, Defendants-Counter-Claimants-Appellees.
United States Court of Appeals, Second Circuit.
May 23, 2012.
Renata Magnoni, pro se, Valley Stream, New York., 1 for Appellant.
Thomas E. Chase, Rottenberg Lipman Rich, P.C., New York, New York, for Appellee.
Present: RALPH K. WINTER, CHESTER J. STRAUB, GERARD E. LYNCH, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Renata Magnoni, pro se, appeals from the district court's order dismissing her claims under the Fair Labor Standards Act ("FLSA"), New York Wage and Hour Law, and New York City Human Rights Law, following a bench trial.
"We review the district court's findings of fact after a bench trial for clear error and its conclusions of law de novo."
Magnoni's attack on the factual findings of the district court is unavailing. With respect to Magnoni's overtime compensation claim, the district court properly credited the substantial documentary evidence over Magnoni's testimony, and concluded that Magnoni failed to carry her burden of proving that Smith & Laquercia undercompensated her, because her "presentation of her overtime claim was unsubstantiated or exceedingly unclear."
Similarly, Magnoni's testimony about her claim for unused vacation time was refuted by documentary evidence. The district court did not clearly err in crediting that evidence over Magnoni's implausible testimony that the company vacation policy, which was clearly set forth in writing, did not apply to her. On appeal, Magnoni asserts for the first time that even if that policy did apply to her, she is entitled to vacation time that she accrued through April 2007. However, she did not make this argument below, and it is therefore waived.
Finally, the district court was entitled to take Magnoni's incredible testimony on her other claims into account in assessing Magnoni's hostile work environment claim. Thus, ample evidence supported the district court's finding that Magnoni's testimony was not credible. That certain aspects of her testimony regarding that claim were corroborated by a credible witness, or even admitted by defendant Laquercia, does not establish that the district court clearly erred in discrediting the bulk of Magnoni's testimony, in light of the totality of the evidence.
Magnoni's evidentiary arguments are no more persuasive. First, she argues that the district court erred in refusing to admit her Exhibit 1, a schedule she prepared purportedly reflecting her overtime hours. We review a district court's evidentiary rulings for abuse of discretion.
Second, Magnoni argues that the district court erred in taking judicial notice that "Quickie" is a brand of wheelchair. The Federal Rules of Evidence permit a court to take judicial notice sua sponte, and at any stage of a proceeding, of a fact "not subject to reasonable dispute" that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."
Magnoni does not assert that "Quickie" is not a brand of wheelchair, or that the fact is subject to reasonable dispute or is difficult to verify.
Finally, in her reply brief, Magnoni makes several new arguments not raised in her initial brief. "[A]rguments not made in an appellant's opening brief are waived even if the appellant pursued those arguments in the district court or raised them in a reply brief."
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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