12-1203 D’Agosta v. Harvey



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



## SUMMARY ORDER

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**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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 7 th** **day of March, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROSEMARY S. POOLER,** 8 **Circuit Judge ,**  9 **ERIC N. VITALIANO,** 10 **District Judge**

**.** * 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **JOSEPH S. D’AGOSTA, THOMAS MAISANO,** 14 **Plaintiffs-Appellants ,**  15 16 **-v.- 12-1203** 17 18 **DR. FRANCIS J. HARVEY, SECRETARY,** 19 **DEPARTMENT OF THE ARMY,** 20 **Defendant-Appellee**

**.** 21 22 - - - - - - - - - - - - - - - - - - - -X 23

* The Honorable Eric N. Vitaliano, District Judge of the United States District Court for the Eastern District of New York, sitting by designation.

1**FOR APPELLANTS:** Dennis L. Friedman, 1 Philadelphia, Pennsylvania. 2 3 **FOR APPELLEE:** Varuni Nelson, Assistant United 4 States Attorney (Seth D. 5 Eichenholtz, Assistant United 6 States Attorney, on the brief ) 7 forLoretta E. Lynch, United 8 States Attorney, Eastern 9 District of New York, Brooklyn, 10 New York. 11 12 Appeal from a judgment of the United States District 13 Court for the Eastern District of New York (Gershon, J. )

. 14 15 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 16 **AND DECREED**that the judgment of the district court be 17
**AFFIRMED**

. 18 19 Plaintiffs-Appellants Joseph S. D’Agosta and Thomas 20 Maisano appeal from the judgment of the United States 21 District Court for the Eastern District of New York 22 (Gershon, J. ), granting summary judgment in favor of 23 Defendant-Appellee Dr. Francis J. Harvey, in his capacity as 24 Secretary of the Army

. We assume the parties’ familiarity 25 with the underlying facts, the procedural history, and the 26 issues presented for review. 27 28 D’Agosta and Maisano filed this sex and age 29 discrimination action arising from a dispute with a co30 worker, Eileen Barry. Their suit alleged that, following a 31 complaint by Barry accusing them of inappropriate workplace 32 behavior, 1the Army Corps of Engineers (“Army Corps”) 33 conducted a seriously flawed investigation that led the Army 34 Corps to accept Barry’s allegations at face value due to her 35 gender. The process ultimately ended in formal reprimands 36 and downgraded performance appraisals for both men. 37 38

1This 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.

2After Appellants filed grievances with the Army Corps, 1 their union invoked the arbitration clause in the parties’ 2 collective bargaining agreement , triggering a thirteen-day 3 arbitration hearing involving sixteen witnesses. The 4 arbitrator found no discrimination, and the Equal Employment 5 Opportunity Commission upheld the arbitrator’s decision. 6 The current action was filed in the United States District 7 Court for the District of New Jersey, which then transferred 8 the case to the Eastern District of New York. On July 13, 9 2011, the court granted the Army Corps’ motion for summary 10 judgment. 11 12 This Court reviews de novoa district court’s grant of 13 summary judgment. See Tepperwien v. Entergy Nuclear 14 Operations, Inc. , 663 F.3d 556, 567 (2d Cir. 2011). 15 16 On appeal, Appellants argue broadly that the district 17 court “failed to adhere to summary judgment principles.” 18 Pet’r Br. 10. The record shows otherwise. The district 19 court properly set forth and applied well-established 20 principles of summary judgment under Federal Rule of Civil 21 Procedure 56. See SA 11-12. The court then applied the 22 McDonnell-Douglas burden-shifting framework in assessing 23 Appellants’ discrimination claims. See SA 12-18 (employing 24 the standard set forth in McDonnell-Douglas Corp. v. Green
, 25 411 U.S. 792, 802-05 (1973)). 26 27 Appellants assert, in conclusory fashion and without 28 record citation, that the district court ignored triable 29 issues of fact. However, the court’s thorough and well30 reasoned opinion concluded [i] that the Army Corps provided 31 a legitimate, non-discriminatory reason for its actions--the 32 need to investigate alleged misconduct in the workplace; and 33 [ii] that Appellants “proffered insufficient evidence, other 34 than the minimal evidence necessary to establish their prima 35 facie case,” that the agency’s actions were motivated by age 36 or sex bias. SA 16-17. Appellants provide no basis for 37 questioning this decision. 38 39 In addition, the court properly attached weight to the 40 arbitrator’s findings. See Collins v. N.Y.C. Transit Auth.
, 41 305 F.3d 113, 119 (2d Cir. 2002) (holding that an 42 independent and unbiased arbitration decision rendered after 43

3an evidentiary hearing and based on substantial evidence “is 1 highly probative of the absence of discriminatory intent”). 2 3 For the foregoing reasons, and finding no merit in 4 D’Agosta and Maisano’s other arguments, we hereby **AFFIRM** the 5 judgment of the district court. 6 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10 11 12 13

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