     14-2730
     Owens v. Rochester City School District

                          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,
 4       on the 9th day of September, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DAVID OWENS,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-2730
16
17       ROCHESTER CITY SCHOOL DISTRICT,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Melvin Bressler, Pittsford, New
22                                             York.
23
24       FOR APPELLEE:                         Cara M. Briggs (Edwin Lopez-
25                                             Soto, on the brief), Rochester,
26                                             New York.
27


                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Western District of New York (Larimer, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiff-Appellant David Owens appeals from the
 9   judgment of the United States District Court for the Western
10   District of New York (Larimer, J.), granting summary
11   judgment in favor of defendants-appellee Rochester City
12   School District. We assume the parties’ familiarity with
13   the underlying facts, the procedural history, and the issues
14   presented for review.
15
16        We affirm for substantially the reasons stated in the
17   district court’s June 25, 2014 order.
18
19        Where, as here, “a plaintiff seeks to prevent summary
20   judgment on the strength of a discrepancy in qualifications
21   ignored by an employer, that discrepancy must bear the
22   entire burden of allowing a reasonable trier of fact to not
23   only conclude the employer’s explanation was pretextual, but
24   that the pretext served to mask unlawful discrimination.”
25   Byrnie v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93, 103
26   (2d Cir. 2001).
27
28        It is undisputed that there is no direct evidence of
29   discrimination in the summary judgment record. And it is
30   undisputed that Owens had “attendance issues” in his
31   personnel file, unlike Peter Torchia, who ultimately
32   received the promotion. Owens’s claim to be more qualified
33   than Torchia is dubious, given Laniak’s virtually unrebutted
34   testimony that Torchia “was and . . . still is the most
35   qualified in the district” for the job. JA 77. But in any
36   event, that purported discrepancy in qualifications could
37   not, standing alone, support an inference of racial
38   discrimination on this record.
39
40        For the foregoing reasons, and finding no merit in
41   Owens’s other arguments, we hereby AFFIRM the judgment of
42   the district court.
43                               FOR THE COURT:
44                               CATHERINE O’HAGAN WOLFE, CLERK
45



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