1 10-1776-cv Diello v. Potter



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 9 th** **day of March, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **PIERRE N. LEVAL,** 8 **REENA RAGGI,** 9 **Circuit Judges**

**.** 10 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **NANCY DIELLO** , 14 15 **Plaintiff-Appellant ,**  16 17 **-v.- 10-1776-cv** 18 19 **JOHN E. POTTER, Postmaster General,** 20 **and UNITED STATES POSTAL SERVICE,** 21 22 **Defendants-Appellees**

**.** 23 24 - - - - - - - - - - - - - - - - - - - -X 25 262 **FOR APPELLANT:** LUCIANO L. LAMA, Ithaca, NY. 1 2 **FOR APPELLEES:** JANE B. WOLFE, Assistant United States 3 Attorney, for William J. Hochul, Jr., 4 United States Attorney for the Western 5 District of New York, Buffalo, NY. 6 7 Appeal from a judgment of the United States District 8 Court for the Western District of New York (Larimer, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11 **AND DECREED**that the judgment of the district court be 12
**AFFIRMED**

. 13 14 Appellant Nancy Diello appeals from the judgment 15 entered on March 17, 2010 by theUnited States District 16 Court for the Western District of New York (Larimer, J. )
, 17 which granted appellees’ motion for summary judgment on 18 Diello’s age discrimination and retaliation claims, brought 19 pursuant to the Age Discrimination in Employment Act (ADEA), 20 29 U.S.C. §§ 623(a), 626(d)(1), and Title VII, 42 U.S.C. 21 §§ 2000e-3, 2000e-5(g), respectively. We assume the 22 parties’ familiarity with the underlying facts, the 23 procedural history, and the issues presented for review. 24 25 A grant of summary judgment is reviewed de novo
, 26 “resolv[ing] all ambiguities and draw[ing] all permissible 27 factual inferences in favor of the party against whom 28 summary judgment is sought.” Terry v. Ashcroft , 336 F.3d 29 128, 137 (2d Cir. 2003) (internal quotation marks omitted). 30 31 **[1]** It is conceded that Diello has established a prima 32 faciecase of age discrimination under the ADEA. The burden 33 therefore shifts to the appellees to provide some 34 “legitimate, nondiscriminatory reason” for selecting Mr. 35 King over Ms. Diello. See McDonnell Douglas Corp. v. Green
, 36 411 U.S. 792, 802 (1973); Gorzynski v. JetBlue Airways 37 Corp. , 596 F.3d 93, 106 (2d Cir. 2010). The appellees 38 sustained their burden: Ms. Diello received multiple 39 unfavorable reviews from past supervisors (including the 40 primary decisionmaker for the promotion at issue); Mr. King 41 was favorably reviewed; and Mr. King outperformed Ms. Diello 42 in the interview for the position. Because these 43 explanations are “reasonably attributable to an honest even 44 though partially subjective evaluation of . . . 45 qualifications, no inference of discrimination can be 46 drawn.” Byrnie v. Town of Cromwell, Bd. of Educ. , 243 F.3d 47* Diello was longer tenured than King; but she makes no argument--and cites no source suggesting--that seniority is a dispositive (or disproportionately weighted) factor in Postal Service promotion decisions. She offers no evidence that King’s performance evaluations were inferior to hers. Accordingly, the discrepancy in qualifications, if any, does not “bear the burden” of showing pretext that masked unlawful discrimination.

3 93, 105 (2d Cir. 2001) (quoting Lieberman v. Gant , 630 F.2d 1 60, 67 (2d Cir. 1980)). Accordingly, “the presumption of 2 age discrimination dissolves, and the burden shifts back to 3 the plaintiff to prove that the employer’s stated reasons 4 are merely pretextual.” Abdu-Brisson v. Delta Air Lines, 5 Inc. , 239 F.3d 456, 466 (2d Cir. 2001). 6 7 Diello fails to establish that appellees’ reasons are 8 pretextual. She challenges one review based on its brevity; 9 but there is no threshold length for a non-pretextual 10 review. Another is challenged on the ground that the 11 reviewer supervised Ms. Diello for only six months; but that 12 is a period sufficient to familiarize oneself with a 13 subordinate’s performance for an informed review. Diello 14 contends that she is better qualified and more experienced 15 than King; but “[w]hen a plaintiff seeks to prevent summary 16 judgment on the strength of a discrepancy in qualifications 17 ignored by an employer, that discrepancy must bear the 18 entire burden of allowing a reasonable trier of fact to not 19 only conclude the employer’s explanation was pretextual, but 20 that the pretext served to mask unlawful discrimination.” 21 Byrnie , 243 F.3d at 103. This she has not done. * 22 23 Had Diello provided compelling evidence of a pattern of 24 promotions of younger employees over older employees, her 25 pretext allegation might be plausible. SeeMaresco v. Evans 26 Chemetics, Div. of W.R. Grace & Co. , 964 F.2d 106, 108-09, 27 113 (2d Cir. 1992). Instead, she offered an unauthenticated 28 (and presumably self-created) chart, which lacked necessary 29 details such as the number of promotions, the promotion 30 criteria, or information about non-promoted employees. But 31 a motion for summary judgment may not be defeated “by 32 offering purely conclusory allegations of discrimination, 33 absent any concrete particulars.” Meiri v. Dacon , 759 F.2d 34 989, 998 (2d Cir. 1985). 354 **[2]** Diello claims that she was not promoted in retaliation 1 for prior complaints she filed with the Equal Employment 2 Opportunity Commission (EEOC). A prima facie case of 3 retaliation under Title VII requires a showing of: (1) 4 “participation in a protected activity known to the 5 defendant”; (2) “an employment action disadvantaging the 6 plaintiff”; and (3) “a causal connection between the 7 protected activity and the adverse employment action.” 8 Richardson v. Comm’n on Human Rights & Opportunities , 532 9 F.3d 114, 123 (2d Cir. 2008) (internal quotation marks 10 omitted). 11 12 Diello fails to show the requisite “causal connection” 13 for her claim. She offers no evidence, direct or indirect, 14 save for alleging that at least one decisionmaker knew of 15 her prior EEOC activities. The seven-year lag between 16 Diello’s previous EEOC complaint and the promotion 17 decision--over four times longer than the twenty-month 18 period that was deemed insufficient in Clark County School 19 District v. Breeden , 532 U.S. 268, 273 (2001)--prevents 20 Diello from establishing a prima faciecase of retaliation. 21 (Any inference of retaliation is further weakened because 22 Diello was promoted at least once during the seven-year 23 period.) 24 25 We have considered all of Diello’s contentions on this 26 appeal and have found them to be without merit. 27 Accordingly, the judgment of the district court is hereby 28 **AFFIRMED**

. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33