MAGNONI v. SMITH & LAQUERCIA
RENATA MAGNONI, Plaintiff-Counter-Defendant-Appellant,
SMITH & LAQUERCIA, THOMAS LAQUERCIA, Defendants-Counter-Claimants-Appellees.
United States Court of Appeals, Second Circuit.
May 23, 2012.
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. See Magnoni v. Smith & Laquercia, LLP, 701 F.Supp.2d 497 (S.D.N.Y. 2010). We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal. "We review the district court's findings of fact after a bench trial for clear error and its conclusions of law de novo." Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009) (internal quotation marks omitted). "We will not upset a factual finding unless we are left with the definite and firm conviction that a mistake has been committed." White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001) (internal quotation marks omitted). Having conducted an independent review of the record in light of these principles, we affirm the district court's judgment. 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." See Magnoni, 701 F. Supp. 2d at 504, citing Grochowski v. Phoenix Constr., 318 F.3d 80, 87-88 (2d Cir. 2003). She persistently calculated her overtime on a daily basis, rather than on the basis of a 40-hour workweek as required by the statute, see 29 U.S.C. § 207(a) (requiring overtime for hours worked in excess of a 40-hour workweek), failed to produce any meaningful evidence in support of her calculations, and, most significantly, failed to account for time spent working on her process-serving business — which was clearly substantial, since the parties agree that the business generated several hundred affidavits of service in 2005, and 270 such affidavits in 2006. 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. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005) (arguments that were "available but not pressed below" are waived on appeal (internal quotation marks omitted)). Magnoni's failure to raise this issue below is not a mere technicality; as defendants note, had the issue been raised at trial, defendants could have relied on record evidence that Magnoni failed to account for days that she was absent from work during the first quarter of 2007, which may have used up some or all of that vacation time. Accordingly, it cannot be said that the district court's findings of fact on this point were clearly erroneous.
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.