1

10-1776-cv

Diello v. Potter

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 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 (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9th 4 day of March, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 REENA RAGGI,

10 Circuit Judges.

11

12

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14 NANCY DIELLO,

15

16 Plaintiff-Appellant,

17

18 -v.- 10-1776-cv

19

20 JOHN E. POTTER, Postmaster General,

21 and UNITED STATES POSTAL SERVICE,

22

23 Defendants-Appellees.

24

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26
2

1 FOR APPELLANT: LUCIANO L. LAMA, Ithaca, NY.

2

3 FOR APPELLEES: JANE B. WOLFE, Assistant United States

4 Attorney, for William J. Hochul, Jr.,

5 United States Attorney for the Western

6 District of New York, Buffalo, NY. 

7

8 Appeal from a judgment of the United States District

9 Court for the Western District of New York (Larimer, J.).

10

11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12 AND DECREED that the judgment of the district court be

13 AFFIRMED. 

14

15 Appellant Nancy Diello appeals from the judgment

16 entered on March 17, 2010 by the United States District

17 Court for the Western District of New York (Larimer, J.),

18 which granted appellees’ motion for summary judgment on

19 Diello’s age discrimination and retaliation claims, brought

20 pursuant to the Age Discrimination in Employment Act (ADEA),

21 29 U.S.C. §§ 623(a), 626(d)(1), and Title VII, 42 U.S.C.

22 §§ 2000e-3, 2000e-5(g), respectively. We assume the

23 parties’ familiarity with the underlying facts, the

24 procedural history, and the issues presented for review.

25

26 A grant of summary judgment is reviewed de novo,

27 “resolv[ing] all ambiguities and draw[ing] all permissible

28 factual inferences in favor of the party against whom

29 summary judgment is sought.” Terry v. Ashcroft, 336 F.3d

30 128, 137 (2d Cir. 2003) (internal quotation marks omitted). 

31

32 [1] It is conceded that Diello has established a prima

33 facie case of age discrimination under the ADEA. The burden

34 therefore shifts to the appellees to provide some

35 “legitimate, nondiscriminatory reason” for selecting Mr.

36 King over Ms. Diello. See McDonnell Douglas Corp. v. Green,

37 411 U.S. 792, 802 (1973); Gorzynski v. JetBlue Airways

38 Corp., 596 F.3d 93, 106 (2d Cir. 2010). The appellees

39 sustained their burden: Ms. Diello received multiple

40 unfavorable reviews from past supervisors (including the

41 primary decisionmaker for the promotion at issue); Mr. King

42 was favorably reviewed; and Mr. King outperformed Ms. Diello

43 in the interview for the position. Because these

44 explanations are “reasonably attributable to an honest even

45 though partially subjective evaluation of . . .

46 qualifications, no inference of discrimination can be

47 drawn.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d
* 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

1 93, 105 (2d Cir. 2001) (quoting Lieberman v. Gant, 630 F.2d

2 60, 67 (2d Cir. 1980)). Accordingly, “the presumption of

3 age discrimination dissolves, and the burden shifts back to

4 the plaintiff to prove that the employer’s stated reasons

5 are merely pretextual.” Abdu-Brisson v. Delta Air Lines,

6 Inc., 239 F.3d 456, 466 (2d Cir. 2001).

7

8 Diello fails to establish that appellees’ reasons are

9 pretextual. She challenges one review based on its brevity;

10 but there is no threshold length for a non-pretextual

11 review. Another is challenged on the ground that the

12 reviewer supervised Ms. Diello for only six months; but that

13 is a period sufficient to familiarize oneself with a

14 subordinate’s performance for an informed review. Diello

15 contends that she is better qualified and more experienced

16 than King; but “[w]hen a plaintiff seeks to prevent summary

17 judgment on the strength of a discrepancy in qualifications

18 ignored by an employer, that discrepancy must bear the

19 entire burden of allowing a reasonable trier of fact to not

20 only conclude the employer’s explanation was pretextual, but

21 that the pretext served to mask unlawful discrimination.” 

Byrnie, 243 F.3d at 103. This she has not done.* 22

23

24 Had Diello provided compelling evidence of a pattern of

25 promotions of younger employees over older employees, her

26 pretext allegation might be plausible. See Maresco v. Evans

27 Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 108-09,

28 113 (2d Cir. 1992). Instead, she offered an unauthenticated

29 (and presumably self-created) chart, which lacked necessary

30 details such as the number of promotions, the promotion

31 criteria, or information about non-promoted employees. But

32 a motion for summary judgment may not be defeated “by

33 offering purely conclusory allegations of discrimination,

34 absent any concrete particulars.” Meiri v. Dacon, 759 F.2d

35 989, 998 (2d Cir. 1985).
4

1 [2] Diello claims that she was not promoted in retaliation

2 for prior complaints she filed with the Equal Employment

3 Opportunity Commission (EEOC). A prima facie case of

4 retaliation under Title VII requires a showing of: (1)

5 “participation in a protected activity known to the

6 defendant”; (2) “an employment action disadvantaging the

7 plaintiff”; and (3) “a causal connection between the

8 protected activity and the adverse employment action.” 

9 Richardson v. Comm’n on Human Rights & Opportunities, 532

10 F.3d 114, 123 (2d Cir. 2008) (internal quotation marks

11 omitted).

12

13 Diello fails to show the requisite “causal connection”

14 for her claim. She offers no evidence, direct or indirect,

15 save for alleging that at least one decisionmaker knew of

16 her prior EEOC activities. The seven-year lag between

17 Diello’s previous EEOC complaint and the promotion

18 decision--over four times longer than the twenty-month

19 period that was deemed insufficient in Clark County School

20 District v. Breeden, 532 U.S. 268, 273 (2001)--prevents

21 Diello from establishing a prima facie case of retaliation. 

22 (Any inference of retaliation is further weakened because

23 Diello was promoted at least once during the seven-year

24 period.) 

25

26 We have considered all of Diello’s contentions on this

27 appeal and have found them to be without merit. 

28 Accordingly, the judgment of the district court is hereby

29 AFFIRMED. 

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33