15-3274 Duckett v. Foxx 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 Cour t 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 28 th day of November, two thousand sixteen.

PRESENT: R ICHARD C. W ESLEY , D EBRA A NN L IVINGSTON , C HRISTOPHER F. D RONEY , Circuit Judges ,

_____________________________________ G EORGE J. D UCKETT , Plaintiff-Appellant , v. 15-3274

A NTHONY F OXX , Defendant – Appellee.

_____________________________________ For Plaintiff-Appellant: G EORGE J. D UCKETT , pro se , Jamaica Estates, N.Y. For Defendant-Appellee: R ACHEL B ALABAN , Assistant United States Attorney (Varuni Nelson, on the brief ), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, N.Y. Appeal from the judgment of the United States District Court for th e Eastern District of New York (Garaufis, J .), entered August 17, 2015.2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant George Duckett, pro se , appeals from the dist rict court’s grant of summary judgment to Defendant-Appellee Ant hony Fox, Secretary of Transportation, on Duckett’s claims of employment discrimination unde r Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq ., and the Age Discrimination in Empl oyment Act (“ADEA”), 29 U.S.C. § 621 et

seq . His complaint alleged that his employer, the Federal Aviation Administration (“FAA”), discriminated against him on the basis of his age and race when it did not promote him and instead chose another employee for the same position. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.

We review a district court’ s grant of summary judgment de novo , bearing in mind that summary judgment is appr opriate “only ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entit led to judgment as a matter of law.’” Kirkland v. Cablevision Sys. , 760 F.3d 223, 224 (2d Cir. 2014) (quoti ng Fed. R. Civ. P. 56(a)). All ambiguities must be resolved, and all reasonable inferences drawn, in favor of the non-movant. Nationwide Life Ins. Co. v. Bankers Leasing Ass’n , 182 F.3d 157, 160 (2d Cir. 1999). Title VII and ADEA claims are governed by the burden-shifting framework set forth in McDonnell Douglas v. Green , 411 U.S. 792, 802 (1973). See Kirkland , 760 F.3d at 225 (Title VII); Gorzynski v. JetBlue Airways Corp. , 596 F.3d 93, 106–07 (2d Cir. 2010) (ADEA). In order to establish a prima facie case of discriminatory failure to promote in violation of Title VII or the ADEA, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for the promotion for which he applie d, (3) he was denied the promo tion, and (4) the denial occurred3 under circumstances giving rise to an inference of discrimination on a basis forbidden by Title VII

or the ADEA. Howley v. Town of Stratford , 217 F.3d 141, 150 (2d Cir. 2000) (Title VII); see Mauro v. S. New England Telecomms. , Inc. , 208 F.3d 384, 386 (2d Cir. 2000) (ADEA). If the plaintiff establishes such a prima facie ca se, and the employer presents a legitimate, non-discriminatory reason for its actions, it is the plaintiff’s burden to present evidence that the employer’s reason is mere pretext. See Howley , 217 F.3d at 150; Mauro , 208 F.3d at 387–88. The district court here properly gran ted summary judgment to Defendant-Appellee because Duckett did not establish that the FAA’s failure to promote him occurred under circumstances giving rise to an inference of di scrimination. Duckett argues that because, in his view, the 17-question test the F AA used to choose who to prom ote was not a valid measure of competency and did not address his specific area of expertise, it was desi gned to mask the FAA’s true discriminatory motive. The test, however, c onsisted of questions rele vant to the position at issue—Aviation Safety Engineer (Damage Tolera nce Technical Specialist)—as fifteen of its questions (a) were based on a training works hop on fatigue and damage tolerance that both Duckett and the employee the FAA ultimately promoted had attended, and (b) concerned subjects covered by standard textbooks in the field. Duckett otherwise failed to demonstrate that the test, which the FAA ultimately administered verbally , violated any specific provision of the FAA’s Human Resources Policy Manual, th at any such violation suggested discrimination, or that any other circumstances of the promotion process im plied the existence of a discriminatory motive. Further, even if Duckett had established a pr ima facie case, he proffered no evidence to rebut the FAA’s legitimate nondiscriminatory reason for not promoting him, namely the fact that he was not the highest scorer on the promotion test. See Henry v. Daytop Vill., Inc. , 42 F.3d 89,4 94 n.1 (2d Cir. 1994) (“Evidence that [a ] reason is false . . . is central to establishing pretext . . . .”).

Duckett conceded both that he did not score as well as the employee who was ultimately promoted, and that he was not otherwise more qualifie d for the position than that employee. See Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 259 (1981) (“[T]he empl oyer has discretion to choose among equally qualified candidates, provided the d ecision is not based upon unlawful criteria.”).

We have considered all of Duckett’s remain ing 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