16-2415-cv
McKeon v. Johnson

                            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 TO 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
21st day of June, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________

GREGORY MCKEON,

                          Plaintiff-Appellant,

                  v.                                                    16-2415-cv

JOHN F. KELLY, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY (TRANSPORTATION SECURITY
ADMINISTRATION), AGENCY,

                  Defendant-Appellee.*
_____________________________________

For Plaintiff-Appellant:                         HARVEY WARREN SPIZZ, Spizz & Cooper LLP,
                                                 Mineola, NY

For Defendant-Appellee:                          SETH D. EICHENHOLTZ, Assistant United States

*
    The Clerk of Court is respectfully directed to amend the caption.



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                                            Attorney (Varuni Nelson, Assistant United States
                                            Attorney, on the brief), for Robert L. Capers, United
                                            States Attorney, Eastern District of New York,
                                            Brooklyn, NY

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Donnelly, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Gregory McKeon (“McKeon”) appeals from the judgment of the

United States District Court for the Eastern District of New York granting summary judgment to

Defendant-Appellee John F. Kelly (then Jeh Johnson), Secretary of the Department of Homeland

Security, on McKeon’s gender discrimination claims brought pursuant to Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.1

       In 2009, McKeon, while employed by the Nassau County Sheriff’s Department, applied

for one of two Transportation Security Administration (“TSA”) Transportation Security

Inspector (“TSI”) vacancies at John F. Kennedy International Airport. McKeon interviewed for

the position, but ultimately two internal TSA candidates, one male and one female, were hired

instead.   McKeon challenges TSA’s decision as motivated by gender discrimination.            We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

                                        *        *      *

       We review grants of summary judgment de novo.           Ya-Chen Chen v. City University of

N.Y., 805 F.3d 59, 69 (2d Cir. 2015).    Summary judgment is appropriate only “if the movant

1
  McKeon does not challenge the district court’s grant of summary judgment on his age
discrimination claim on appeal.



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shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting

Fed. R. Civ. P. 56(a)). All ambiguities must be resolved, and all reasonable inferences drawn,

in favor of the non-movant. Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010).

       McKeon’s gender discrimination claim is governed by the McDonnell Douglas

burden-shifting framework.     See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Dawson v. Bumble & Bumble, 398 F.3d 211, 216–17 (2d Cir. 2005). As relevant here,

a prima facie case under Title VII consists of four elements: (1) that the plaintiff falls within a

protected group; (2) that the plaintiff applied for a position for which he was qualified; (3) that

the plaintiff was denied the job; and (4) that the denial occurred under circumstances giving rise

to an inference of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802; Vivenzio v.

City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). Once the plaintiff has established a prima

facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason

for the employment decision. Vivenzio, 611 F.3d at 106. If the defendant does so, the burden

shifts back to the plaintiff to prove that the defendant’s proffered reason was pretext for

discrimination. Id.; Summa v. Hofstra Univ., 708 F.3d 115, 129 (2d Cir. 2013).

       The district court correctly held that McKeon failed to demonstrate a genuine factual

dispute as to the fourth element of his prima facie case, namely the existence of unlawful

discrimination.   McKeon’s allegation that the TSA employee who made the ultimate decision

regarding how to fill the two TSI positions, Federal Security Director Michael A. Scott (“Scott”),

refused to hire him because of his gender is unsupported by any record evidence. McKeon did

not demonstrate that Scott’s determination to fill the two positions with only internal TSA

applicants suggests gender discrimination. Indeed, McKeon offered no evidence whatsoever



                                                 3
that the TSA applicant pool contained any fewer males (or qualified males) than those in the

external applicant pool, of which McKeon was a part.2     See Molnar v. Pratt & Whitney, 63 F.

App’x 528, 529 (2d Cir. 2002) (summary order) (“One would need to know something about the

applicant pool before drawing an inference of discrimination . . . , and nothing in the record

describes the pool.”). Moreover, the fact that Scott ultimately hired a male for one of the two

available TSI positions further undermines any inference of gender discrimination.

       Additionally, even if McKeon had established a prima facie case, he failed to rebut the

TSA’s legitimate, non-discriminatory reason for not hiring him. Scott testified that he decided

to choose only from highly-qualified TSA applicants—who had relevant experience with

aviation security—because TSA employees had expressed dissatisfaction with their lack of

advancement opportunities.    McKeon has offered no evidence suggesting that this preference

was anything but both reasonable and genuine. See Clifford v. Barnhart, 449 F.3d 276, 286 (1st

Cir. 2006) (finding preference for internal candidates at the Social Security Administration did

not suggest disability discrimination); cf. Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d

Cir. 2014) (explaining that, in assessing employment discrimination claims, the Court does not



2
  On appeal, McKeon presses an argument, raised for the first time below in his opposition to
defendant’s summary judgment motion, that the availability of a veterans’ preference for
external candidates would advantage more men than women (since more men than women have
served in the armed forces), and that a preference for internal candidates (to whom the veterans’
preference does not apply) creates a disparate impact on men. That argument fails, however,
because McKeon has made no “threshold showing of a significant statistical disparity” with
respect to gender between the internal and external candidates. Ricci v. DeStefano, 557 U.S.
557, 587 (2009). McKeon has offered no evidence regarding the gender make-up, or the
proportion of veterans, in either the internal or the external pool, let alone any evidence of how
the veterans’ preference would have affected the rankings of the candidates. His argument thus
rests entirely on unsupported speculation, and such “speculation by the party resisting the motion
will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996);
see also Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 621 (2d Cir. 2016) (same).



                                                4
“sit as a super-personnel department that reexamines an entity’s business decisions” (quoting

Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997)).

       We have considered McKeon’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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