09-3280-cv
Thompson v. Solis


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28 th day of May, two thousand ten.

PRESENT:            JON O. NEWMAN,
                    CHESTER J. STRAUB,
                    REENA RAGGI,
                               Circuit Judges.

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BARBARA THOMPSON,
                                                   Plaintiff-Appellant,
                               v.                                                      No. 09-3280-cv

HILDA L. SOLIS, U.S. Department of Labor
Secretary,*
                             Defendant-Appellee.
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APPEARING FOR APPELLANT:                                      BARBARA THOM PSON,                 pro se, Q ueens
                                                              Village, New York.

APPEARING FOR APPELLEE:                                       JOSEPH A. PANTOJA, Assistant United States
                                                              Attorney (Ross E. Morrison, Assistant United


          *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Hilda L. Solis is
automatically substituted for former Labor Secretary Elaine L. Chao as the appellee in this
case.
                                          States Attorney, on the brief), for Preet Bharara,
                                          United States Attorney for the Southern District
                                          of New York, New York, New York.

       Appeal from the United States District Court for the Southern District of New York

(James C. Francis IV, Magistrate Judge).1

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

DECREED that the judgment entered on May 29, 2009, is AFFIRMED.

       Pro se plaintiff Barbara Thompson, a sixty-two-year-old African American, appeals

from an award of summary judgment entered in favor of her former employer, the

Department of Labor (“DOL”), on claims that she was terminated on the basis of her age,

gender, and national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq. We review an award of summary judgment de novo, and

we will affirm only if the record, viewed in the light most favorable to the nonmoving party,

reveals no genuine issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.

2010). We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.




       1
        This case was assigned to Magistrate Judge James C. Francis IV for all purposes
with the consent of both parties. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

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       We analyze both Title VII and ADEA claims under the familiar burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010) (holding that

burden-shifting framework for ADEA cases remains binding after Gross v. FBL Fin. Servs.,

129 S. Ct. 2343 (2009)). Here, the DOL does not dispute that Thompson satisfied her initial

burden to demonstrate a prima facie discrimination case. Rather, the DOL submits that it

satisfied its burden to articulate a legitimate, nondiscriminatory reason for Thompson’s

termination, namely, Thompson’s continuing misuse of a government-issued, travel credit

card after a written reprimand for past misuse. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 506-08 (1993); see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56

(1981).

       Thompson does not dispute that an audit revealed that between August 20, 2002, and

April 30, 2004, she used her government-issued, travel credit card to obtain twenty-six

unauthorized cash advances totaling $1,619.60.2 She maintains, however, that the DOL’s

       2
         That Thompson asserts she used some of these funds to purchase supplies for her
“flexiplace” home office does not alter our conclusion that the DOL proffered a legitimate,
nondiscriminatory reason for her termination. Quite apart from Thompson’s failure to
document the claimed supplies purchases, the record shows that the face of the credit card
was expressly marked “For Official Government Travel Only.” Moreover, a 2003
memorandum, which Thompson acknowledges she received, states, “As a cardholder, you
agreed that you are responsible for ensuring that the card is used for authorized government
travel and travel-related expenses only.” Mem. Re: Unauthorized Use or Delinquency in
Payment (emphasis added). Thus, even assuming that unauthorized card use ultimately
resulted in work-related purchases, that evidence would not support an inference of
discrimination. See Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (“[I]t

                                             3
proffered reason for her termination was a pretext for age, gender, and national-origin

discrimination because the same audit revealed that Wilson Pierre-Louis, an approximately

forty-five-year-old, African-American man of Haitian national origin, had engaged in more

egregious misuse of his credit card.

       This evidence is insufficient to permit a jury to find pretext, much less discrimination,

because Thompson was not “similarly situated in all material respects” to Pierre-Louis.

Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003); accord Graham v. Long

Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Unlike Thompson, Pierre-Louis’s file did not

include a prior written reprimand for credit card misuse. Further, unlike Thompson, who had

worked for the DOL for approximately thirty years at the time of her termination, Pierre-

Louis had only been employed by the DOL for approximately four years. Former District

Director Kenneth Baisden, a fifty-nine-year-old African American who made the termination

decision, stated that he deemed both differences “aggravating factor[s]” militating in favor

of terminating Thompson while suspending Pierre-Louis. Baisden Decl. ¶¶ 23-24, at 8.

       Thompson argues that a jury might disbelieve Baisden. That, however, is insufficient

to survive summary judgment. As the Supreme Court has observed, “it is not enough to

disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional



is not the function of a fact-finder to second-guess business decisions or to question a[n
employer’s] means to achieve a legitimate goal.”); Davis v. State Univ. of N.Y., 802 F.2d
638, 641 (2d Cir. 1986) (noting that “employer need not prove . . . that it made the wisest
choice, but only that the reasons for the decision were nondiscriminatory”).

                                               4
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)

(internal quotation marks, alteration, and ellipsis omitted; emphasis in original); see also

Cross v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (noting that plaintiff must

prove discrimination “‘was the real reason’ for any adverse employment action” (quoting

Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000))). Because Thompson adduced no

evidence of discrimination apart from alleged differential treatment as compared to another

employee with whom she was not similarly situated, the district court correctly entered

summary judgment for the DOL.

       We have considered Thompson’s other arguments on appeal and conclude that they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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