     12-1203
     D’Agosta v. Harvey

                          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 7th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judge,
10                ERIC N. VITALIANO,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       JOSEPH S. D’AGOSTA, THOMAS MAISANO,
15                Plaintiffs-Appellants,
16
17                    -v.-                                               12-1203
18
19       DR. FRANCIS J. HARVEY, SECRETARY,
20       DEPARTMENT OF THE ARMY,
21                Defendant-Appellee.
22
23       - - - - - - - - - - - - - - - - - - - -X


                *
               The Honorable Eric N. Vitaliano, District Judge of
         the United States District Court for the Eastern District of
         New York, sitting by designation.
                                                  1
 1   FOR APPELLANTS:            Dennis L. Friedman,
 2                              Philadelphia, Pennsylvania.
 3
 4   FOR APPELLEE:              Varuni Nelson, Assistant United
 5                              States Attorney (Seth D.
 6                              Eichenholtz, Assistant United
 7                              States Attorney, on the brief)
 8                              for Loretta E. Lynch, United
 9                              States Attorney, Eastern
10                              District of New York, Brooklyn,
11                              New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Eastern District of New York (Gershon, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Plaintiffs-Appellants Joseph S. D’Agosta and Thomas
21   Maisano appeal from the judgment of the United States
22   District Court for the Eastern District of New York
23   (Gershon, J.), granting summary judgment in favor of
24   Defendant-Appellee Dr. Francis J. Harvey, in his capacity as
25   Secretary of the Army. We assume the parties’ familiarity
26   with the underlying facts, the procedural history, and the
27   issues presented for review.
28
29        D’Agosta and Maisano filed this sex and age
30   discrimination action arising from a dispute with a co-
31   worker, Eileen Barry. Their suit alleged that, following a
32   complaint by Barry accusing them of inappropriate workplace
33   behavior,1 the Army Corps of Engineers (“Army Corps”)
34   conducted a seriously flawed investigation that led the Army
35   Corps to accept Barry’s allegations at face value due to her
36   gender. The process ultimately ended in formal reprimands
37   and downgraded performance appraisals for both men.
38


         1
           This behavior included playing sound bites such as
     wolf whistles when female employees would pass by their
     desks and repeatedly questioning Barry about her
     relationship with another employee.
                                  2
 1        After Appellants filed grievances with the Army Corps,
 2   their union invoked the arbitration clause in the parties’
 3   collective bargaining agreement, triggering a thirteen-day
 4   arbitration hearing involving sixteen witnesses. The
 5   arbitrator found no discrimination, and the Equal Employment
 6   Opportunity Commission upheld the arbitrator’s decision.
 7   The current action was filed in the United States District
 8   Court for the District of New Jersey, which then transferred
 9   the case to the Eastern District of New York. On July 13,
10   2011, the court granted the Army Corps’ motion for summary
11   judgment.
12
13        This Court reviews de novo a district court’s grant of
14   summary judgment. See Tepperwien v. Entergy Nuclear
15   Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011).
16
17        On appeal, Appellants argue broadly that the district
18   court “failed to adhere to summary judgment principles.”
19   Pet’r Br. 10. The record shows otherwise. The district
20   court properly set forth and applied well-established
21   principles of summary judgment under Federal Rule of Civil
22   Procedure 56. See SA 11-12. The court then applied the
23   McDonnell-Douglas burden-shifting framework in assessing
24   Appellants’ discrimination claims. See SA 12-18 (employing
25   the standard set forth in McDonnell-Douglas Corp. v. Green,
26   411 U.S. 792, 802-05 (1973)).
27
28        Appellants assert, in conclusory fashion and without
29   record citation, that the district court ignored triable
30   issues of fact. However, the court’s thorough and well-
31   reasoned opinion concluded [i] that the Army Corps provided
32   a legitimate, non-discriminatory reason for its actions--the
33   need to investigate alleged misconduct in the workplace; and
34   [ii] that Appellants “proffered insufficient evidence, other
35   than the minimal evidence necessary to establish their prima
36   facie case,” that the agency’s actions were motivated by age
37   or sex bias. SA 16-17. Appellants provide no basis for
38   questioning this decision.
39
40        In addition, the court properly attached weight to the
41   arbitrator’s findings. See Collins v. N.Y.C. Transit Auth.,
42   305 F.3d 113, 119 (2d Cir. 2002) (holding that an
43   independent and unbiased arbitration decision rendered after



                                  3
 1   an evidentiary hearing and based on substantial evidence “is
 2   highly probative of the absence of discriminatory intent”).
 3
 4        For the foregoing reasons, and finding no merit in
 5   D’Agosta and Maisano’s other arguments, we hereby AFFIRM the
 6   judgment of the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10
11
12
13




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