     09-1299-cv
     DeMarco v. CooperVision, Inc.
 1
 2                                   UNITED STATES COURT OF APPEALS
 3                                       FOR THE SECOND CIRCUIT
 4
 5                                         SUMMARY ORDER
 6
 7   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 8   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 9   BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
10   W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
11   M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
12   NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
13   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
17   on the 12th day of March, two thousand and ten.
18
19   Present:          DEBRA ANN LIVINGSTON,
20                     GERARD E. LYNCH
21                                Circuit Judges.*
22
23   _____________________________________________________
24
25   JENNIFER DEMARCO,
26              Plaintiff-Appellant,
27
28                     -v.-                        No. 09-1299-cv
29
30   COOPERVISION, INC.
31             Defendant-Appellee.
32
33
34                                          Christina A. Agola, Rochester, NY (Steven H. Grocott, on
35                                          the brief), for Plaintiff-Appellant.
36
37                                          Daniel J. Moore, Harris Beach PLLC, Pittsford, NY, for
38                                          Defendant-Appellee.
39
40
41        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
42   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.


              *
              The Honorable Rosemary S. Pooler, originally assigned to this panel, did not participate
     in the consideration of this appeal. The remaining two members of the panel, who are in
     agreement, have determined this matter. See Second Circuit Internal Operating Procedure E(b);
     28 U.S.C. § 46(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1
 2           Plaintiff-Appellant Jennifer DeMarco appeals the March 11, 2009 decision and order of the
 3   United States District Court for the Western District of New York (Siragusa, J.) granting Defendant-
 4   Appellee CooperVision’s motion for summary judgment and dismissing DeMarco’s claims in their
 5   entirety. DeMarco alleged that CooperVision had violated Title VII of the Civil Rights Act of 1964,
 6   42 U.S.C. § 2000e et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq.,
 7   and New York’s Human Rights Law (“HRL”), N.Y. Exec. Law § 296 et seq. DeMarco does not
 8   appeal the district court’s decision with respect to her ADA and HRL disability claims. Thus, the
 9   only claims on appeal are her Title VII and HRL claims alleging discrimination on the basis of
10   pregnancy.1 We assume the parties’ familiarity with the underlying facts, procedural history, and
11   specification of issues for review.
12
13           Title VII was amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), to enact
14   Congress’s determination that “discrimination based on a woman’s pregnancy is, on its face,
15   discrimination because of her sex.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S.
16   669, 684 (1983). Pregnancy discrimination claims are analyzed using the three-step burden-shifting
17   analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973). See Kerzer v.
18   Kingly Mfg., 156 F.3d 396, 400-01 (2d Cir. 1998). DeMarco’s HRL claim is analyzed under the
19   same standard. See Gallagher v. Delaney, 139 F.3d 338, 345 (2d Cir. 1998), abrogated on other
20   grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
21
22           The district court determined that DeMarco had succeeded in making out a prima facie case
23   of pregnancy discrimination based on the timing of her termination. The court concluded, however,
24   that CooperVision had advanced a legitimate, non-discriminatory reason for her termination and that
25   DeMarco had failed to show that the proffered reason was pretextual. We agree. None of the
26   evidence submitted by DeMarco rebuts CooperVision’s legitimate, non-discriminatory reasons for
27   her termination — that CooperVision was undergoing corporate restructuring and cost-cutting, that
28   DeMarco’s job responsibilities were either absorbed by other employees or disappeared altogether,
29   and that CooperVision had no obligation to rehire her because she had exhausted her leave under the
30   Family Medical Leave Act.
31
32          DeMarco asserts in her affidavit that she was replaced by a non-pregnant woman, an
33   averment that, on its face, might have assisted her in carrying her burden. See Kerzer, 156 F.3d at
34   401, 403. She states that in a phone call with Melanie Parnell, Parnell told her that Coopervision had
35   “guarantee[d]” to Parnell the plaintiff’s position. At her deposition, however, DeMarco testified only
36   that Parnell had stated, in substance, that Parnell would have a permanent position in her new
37   department “even when [DeMarco] came back” to work — a statement implying, if anything, that
38   DeMarco would be returning, not that Parnell would be replacing her. DeMarco may not create a
39   material issue of fact by submitting an affidavit contradicting her own prior sworn testimony. See
40   Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir. 2000). The record clearly shows that Parnell assumed
41   some of DeMarco’s job responsibilities during DeMarco’s absence, but she did not assume all of


            1
             Likewise, DeMarco does not appeal the district court’s decision with respect to her
     March 2005 transfer. Therefore, the only remaining claim for pregnancy discrimination is based
     on her October 2005 termination.

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 1   them, nor was she given the same job title as DeMarco at the time she was transferred to DeMarco’s
 2   department. Moreover, CooperVision did not hire new employees in DeMarco’s division in the
 3   period after DeMarco was terminated. Employees were transferred from other divisions within
 4   CooperVision as part of the restructuring, but did not have DeMarco’s duties. Nor were they
 5   replaced in these other divisions. The record further evidences that DeMarco was not the only
 6   employee terminated, nor was her position the only one eliminated, during the same time period.
 7
 8           Finally, DeMarco’s unspecific and hence untestable allegation that another unnamed
 9   employee who was out on maternity leave was also terminated upon returning to work is insufficient
10   to overcome summary judgment. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 85 (2d Cir. 2005)
11   (noting that “‘conclusory statements, conjecture, or speculation’ are inadequate to defeat a motion
12   for summary judgment” (quoting Opals on Ice Lingerie v. Body Lines, Inc., 320 F.3d 362, 370 n.3
13   (2d Cir. 2003)) (internal quotation marks omitted)). In fact, CooperVision has presented evidence
14   that two other non-pregnant employees who exceeded their FMLA leave were also terminated upon
15   their return, suggesting that DeMarco was treated identically to other non-pregnant employees.
16   herself testified, moreover, that other employees were “constantly” going out on maternity leave and
17   coming back to work. In short, none of the arguments offered by DeMarco shows that the actual
18   reason for her termination was her pregnancy.
19
20         We have considered DeMarco’s remaining arguments and we find them to be without merit.
21   Accordingly, the judgment of the district court hereby is AFFIRMED.
22
23
24                                                        FOR THE COURT:
25                                                        Catherine O’Hagan Wolfe, Clerk
26
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