12-1203

D’Agosta v. Harvey

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 7th 4 day of March, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROSEMARY S. POOLER,

9 Circuit Judge,

10 ERIC N. VITALIANO,

District Judge.* 11

12

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14 JOSEPH S. D’AGOSTA, THOMAS MAISANO, 

15 Plaintiffs-Appellants,

16

17 -v.- 12-1203

18

19 DR. FRANCIS J. HARVEY, SECRETARY,

20 DEPARTMENT OF THE ARMY, 

21 Defendant-Appellee.

22

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* The Honorable Eric N. Vitaliano, District Judge of

the United States District Court for the Eastern District of

New York, sitting by designation.

1
1 FOR APPELLANTS: Dennis L. Friedman,

2 Philadelphia, Pennsylvania.

3

4 FOR APPELLEE: Varuni Nelson, Assistant United

5 States Attorney (Seth D.

6 Eichenholtz, Assistant United

7 States Attorney, on the brief)

8 for Loretta E. Lynch, United

9 States Attorney, Eastern

10 District of New York, Brooklyn,

11 New York. 

12

13 Appeal from a judgment of the United States District

14 Court for the Eastern District of New York (Gershon, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Plaintiffs-Appellants Joseph S. D’Agosta and Thomas

21 Maisano appeal from the judgment of the United States

22 District Court for the Eastern District of New York

23 (Gershon, J.), granting summary judgment in favor of

24 Defendant-Appellee Dr. Francis J. Harvey, in his capacity as

25 Secretary of the Army. We assume the parties’ familiarity

26 with the underlying facts, the procedural history, and the

27 issues presented for review. 

28

29 D’Agosta and Maisano filed this sex and age

30 discrimination action arising from a dispute with a co31 worker, Eileen Barry. Their suit alleged that, following a

32 complaint by Barry accusing them of inappropriate workplace

behavior,1 33 the Army Corps of Engineers (“Army Corps”)

34 conducted a seriously flawed investigation that led the Army

35 Corps to accept Barry’s allegations at face value due to her

36 gender. The process ultimately ended in formal reprimands

37 and downgraded performance appraisals for both men.

38

1 This behavior included playing sound bites such as

wolf whistles when female employees would pass by their

desks and repeatedly questioning Barry about her

relationship with another employee.

2
1 After Appellants filed grievances with the Army Corps,

2 their union invoked the arbitration clause in the parties’

3 collective bargaining agreement, triggering a thirteen-day

4 arbitration hearing involving sixteen witnesses. The

5 arbitrator found no discrimination, and the Equal Employment

6 Opportunity Commission upheld the arbitrator’s decision. 

7 The current action was filed in the United States District

8 Court for the District of New Jersey, which then transferred

9 the case to the Eastern District of New York. On July 13,

10 2011, the court granted the Army Corps’ motion for summary

11 judgment. 

12

13 This Court reviews de novo a district court’s grant of

14 summary judgment. See Tepperwien v. Entergy Nuclear

15 Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011). 

16

17 On appeal, Appellants argue broadly that the district

18 court “failed to adhere to summary judgment principles.” 

19 Pet’r Br. 10. The record shows otherwise. The district

20 court properly set forth and applied well-established

21 principles of summary judgment under Federal Rule of Civil

22 Procedure 56. See SA 11-12. The court then applied the

23 McDonnell-Douglas burden-shifting framework in assessing

24 Appellants’ discrimination claims. See SA 12-18 (employing

25 the standard set forth in McDonnell-Douglas Corp. v. Green,

26 411 U.S. 792, 802-05 (1973)). 

27

28 Appellants assert, in conclusory fashion and without

29 record citation, that the district court ignored triable

30 issues of fact. However, the court’s thorough and well31 reasoned opinion concluded [i] that the Army Corps provided

32 a legitimate, non-discriminatory reason for its actions--the

33 need to investigate alleged misconduct in the workplace; and

34 [ii] that Appellants “proffered insufficient evidence, other

35 than the minimal evidence necessary to establish their prima

36 facie case,” that the agency’s actions were motivated by age

37 or sex bias. SA 16-17. Appellants provide no basis for

38 questioning this decision.

39

40 In addition, the court properly attached weight to the

41 arbitrator’s findings. See Collins v. N.Y.C. Transit Auth.,

42 305 F.3d 113, 119 (2d Cir. 2002) (holding that an

43 independent and unbiased arbitration decision rendered after

3
1 an evidentiary hearing and based on substantial evidence “is

2 highly probative of the absence of discriminatory intent”). 

3

4 For the foregoing reasons, and finding no merit in

5 D’Agosta and Maisano’s other arguments, we hereby AFFIRM the

6 judgment of the district court.

7

8 FOR THE COURT:

9 CATHERINE O’HAGAN WOLFE, CLERK

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