12-3591-cv

Taddeo v. L.M. Berry and Co. 

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.

At a stated term of the United States Court 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 13th

day of May, two thousand thirteen.

PRESENT:

PIERRE N. LEVAL,

JOSÉ A. CABRANES,

BARRINGTON D. PARKER,

Circuit Judges.

_____________________________________

TERESA R. TADDEO,

Plaintiff-Appellant, 

v. No. 12-3591-cv

 

L.M. BERRY AND COMPANY,

Defendant-Appellee. 

_____________________________________

FOR PLAINTIFF-APPELLANT: DAVID ROTHENBERG, Geiger and 

Rothenberg, LLP, Rochester, NY.

FOR DEFENDANT-APPELLEE: MARGARET A. CLEMENS (Robert I. Koury, 

Stephen J. Sferra, on the brief), Littler 

Mendelson, P.C., Rochester, NY.
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Appeal from the United States District Court for the Western District of New York (Charles 

J. Siragusa, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the August 20, 2012 judgment of the District Court 

granting summary judgment for the defendant-appellee is AFFIRMED.

This action arose after plaintiff-appellant Teresa Taddeo (“Taddeo” or “plaintiff”), then a 

50-year-old woman, was fired from her position as a district manager for defendant-appellee L.M. 

Berry and Company (“Berry” or “company”) following an internal investigation by the company for 

insubordination after plaintiff and two other managers did not follow instructions not to involve 

another employee in a company project. The other two managers, Kevin Dowd (“Dowd”) and 

Chris Peer (“Peer”), both men who are younger than plaintiff, were issued only written warnings. 

Plaintiff subsequently commenced this action against Berry, alleging employment discrimination 

based upon her sex and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 

2000e-2; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)1; and New 

York State’s Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. In an August 15, 2012 

Memorandum Decision and Order, the District Court dismissed plaintiff’s age discrimination claims

for “fail[ing] to provide any evidentiary proof that her age had any impact on her termination,” see 

Taddeo v. L.M. Berry and Co., No. 08–CV–6109–CJS, 2012 WL 3535873, at *5 (W.D.N.Y. Aug. 15, 

2012); dismissed her gender discrimination claims for “fail[ing] to provide either concrete or even 

circumstantial proof of discriminatory intent,” id.; and granted summary judgment for defendant. 

This timely appeal followed. We assume the parties’ familiarity with the underlying facts, the 

procedural history, and the issues presented for review, to which we refer only as necessary to 

explain our decision to affirm.

We review an order granting summary judgment de novo, “resolving all ambiguities and 

drawing all permissible factual inferences in favor of the party against whom summary judgment is 

sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted); see also

Fed. R. Civ. P. 56. “At the summary-judgment stage, properly exhausted Title VII claims are 

ordinarily analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). 

Under this framework, plaintiff “bears the burden of establishing a prima facie case of 

discrimination,” by showing, inter alia, that she “suffered an adverse employment action . . . under 

circumstances giving rise to an inference of discriminatory intent.” Id. (internal quotation marks 

omitted). We have cautioned that “[w]here an employer acted with discriminatory intent, direct 

evidence of that intent will only rarely be available, so affidavits and depositions must be carefully 

scrutinized for circumstantial proof which, if believed, would show discrimination.” See Gorzynski v. 
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JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks and alterations 

omitted). “Once the prima facie case has been shown, ‘the burden then must shift to the employer to 

articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” United 

States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011) (quoting McDonnell Douglas, 411 U.S. at 802). ADEA 

claims are also analyzed under McDonnell Douglas’s three-step burden-shifting framework, however,

at the third step “‘a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, 

by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse 

employment action’ and not just a contributing or motivating factor.” See Gorzynski, 596 F.3d at 106

(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)). 

On appeal, plaintiff argues that the District Court erred in finding that she did not present 

evidence that her termination was made “under circumstances giving rise to an inference of 

discriminatory intent.” Mathirampuzha, 548 F.3d at 78. Having conducted an independent and de 

novo review of the record, we disagree. It is undisputed that plaintiff, like her two male co-managers, 

was initially to be disciplined by a written reprimand. Berry’s Vice President of Human Resources,

Anita Moore (“Moore”), was subsequently presented with records of cellular phone calls between 

the managers that Moore took as evidence that Taddeo lied during the company’s investigation

about phone calls with Peer and Dowd. After an additional conversation with Taddeo, Moore 

decided to terminate plaintiff’s employment on the stated ground that she had lied to her superiors 

during the investigation. 

The facts set forth by plaintiff do not constitute sufficient proof—even circumstantial 

proof—that could give rise to an inference of discriminatory employer intent. Gorzynski, 596 F.3d at

101. While plaintiff makes some additional allegations to suggest discriminatory intent, we agree 

with the District Court, that these allegations are conclusory and without evidentiary support. See

Taddeo, 2012 WL 3535873, at *5. In reaching this conclusion we note that the “factual dispute at 

issue is whether a discriminatory animus motivated the employer, not whether the employer is wise, 

shrewd, prudent, or competent.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.

1995) (internal quotation marks omitted) (emphasis supplied); see also Graham v. Long Island R.R., 230 

F.3d 34, 44 (2d Cir. 2000) (holding that even if plaintiff was dismissed due to an erroneous failed 

drug test, that fact would not demonstrate that defendant’s reliance on the test gave rise to an 

inference of discrimination). Indeed, plaintiff’s arguments on appeal, even if credited, would only 

show that Moore exercised poor judgment in concluding that Taddeo had lied to her superiors

during the company investigation. It does not follow, however, that Moore acted with 

discriminatory intent.1 Accordingly, the District Court appropriately dismissed Taddeo’s action for 

failing to demonstrate “circumstances giving rise to an inference of discriminatory intent.”

Mathirampuzha, 548 F.3d at 78. Even if we were to find that plaintiff satisfied the minimal burden of 

the prima facie case of employment discrimination, see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

 

1 Similarly, even if Kevin Dunston, one of Moore’s subordinates had “his mind made up about firing plaintiff,” see 

Appellant’s Br. 21, that fact alone would not give rise to discriminatory animus on his part.
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248, 253 (1981), thus requiring Berry to come forward with an explanation of the reason for the 

dismissal, plaintiff clearly did not proffer evidence from which a jury could reasonably find the 

discrimination she claims. 

We have reviewed all of plaintiff’s argument on appeal and find them to be without merit. 

Accordingly, we AFFIRM the August 20, 2012 judgment of the District Court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk