12-3591-cv
Taddeo v. L.M. Berry and Co.


                                    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.

       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 13th
day of May, two thousand thirteen.

PRESENT:
                   PIERRE N. LEVAL,
                   JOSÉ A. CABRANES,
                   BARRINGTON D. PARKER,
                                Circuit Judges.

_____________________________________

TERESA R. TADDEO,

                   Plaintiff-Appellant,

                               v.                                   No. 12-3591-cv

L.M. BERRY AND COMPANY,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                             DAVID ROTHENBERG, Geiger and
                                                     Rothenberg, LLP, Rochester, NY.



FOR DEFENDANT-APPELLEE:                              MARGARET A. CLEMENS (Robert I. Koury,
                                                     Stephen J. Sferra, on the brief), Littler
                                                     Mendelson, P.C., Rochester, NY.
         Appeal from the United States District Court for the Western District of New York (Charles
J. Siragusa, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 20, 2012 judgment of the District Court
granting summary judgment for the defendant-appellee is AFFIRMED.

         This action arose after plaintiff-appellant Teresa Taddeo (“Taddeo” or “plaintiff”), then a
50-year-old woman, was fired from her position as a district manager for defendant-appellee L.M.
Berry and Company (“Berry” or “company”) following an internal investigation by the company for
insubordination after plaintiff and two other managers did not follow instructions not to involve
another employee in a company project. The other two managers, Kevin Dowd (“Dowd”) and
Chris Peer (“Peer”), both men who are younger than plaintiff, were issued only written warnings.
Plaintiff subsequently commenced this action against Berry, alleging employment discrimination
based upon her sex and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)1; and New
York State’s Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. In an August 15, 2012
Memorandum Decision and Order, the District Court dismissed plaintiff’s age discrimination claims
for “fail[ing] to provide any evidentiary proof that her age had any impact on her termination,” see
Taddeo v. L.M. Berry and Co., No. 08–CV–6109–CJS, 2012 WL 3535873, at *5 (W.D.N.Y. Aug. 15,
2012); dismissed her gender discrimination claims for “fail[ing] to provide either concrete or even
circumstantial proof of discriminatory intent,” id.; and granted summary judgment for defendant.

        This timely appeal followed. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review, to which we refer only as necessary to
explain our decision to affirm.

        We review an order granting summary judgment de novo, “resolving all ambiguities and
drawing all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted); see also
Fed. R. Civ. P. 56. “At the summary-judgment stage, properly exhausted Title VII claims are
ordinarily analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008).
Under this framework, plaintiff “bears the burden of establishing a prima facie case of
discrimination,” by showing, inter alia, that she “suffered an adverse employment action . . . under
circumstances giving rise to an inference of discriminatory intent.” Id. (internal quotation marks
omitted). We have cautioned that “[w]here an employer acted with discriminatory intent, direct
evidence of that intent will only rarely be available, so affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed, would show discrimination.” See Gorzynski v.
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JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks and alterations
omitted). “Once the prima facie case has been shown, ‘the burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” United
States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011) (quoting McDonnell Douglas, 411 U.S. at 802). ADEA
claims are also analyzed under McDonnell Douglas’s three-step burden-shifting framework, however,
at the third step “‘a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove,
by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse
employment action’ and not just a contributing or motivating factor.” See Gorzynski, 596 F.3d at 106
(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)).

        On appeal, plaintiff argues that the District Court erred in finding that she did not present
evidence that her termination was made “under circumstances giving rise to an inference of
discriminatory intent.” Mathirampuzha, 548 F.3d at 78. Having conducted an independent and de
novo review of the record, we disagree. It is undisputed that plaintiff, like her two male co-managers,
was initially to be disciplined by a written reprimand. Berry’s Vice President of Human Resources,
Anita Moore (“Moore”), was subsequently presented with records of cellular phone calls between
the managers that Moore took as evidence that Taddeo lied during the company’s investigation
about phone calls with Peer and Dowd. After an additional conversation with Taddeo, Moore
decided to terminate plaintiff’s employment on the stated ground that she had lied to her superiors
during the investigation.

         The facts set forth by plaintiff do not constitute sufficient proof—even circumstantial
proof—that could give rise to an inference of discriminatory employer intent. Gorzynski, 596 F.3d at
101. While plaintiff makes some additional allegations to suggest discriminatory intent, we agree
with the District Court, that these allegations are conclusory and without evidentiary support. See
Taddeo, 2012 WL 3535873, at *5. In reaching this conclusion we note that the “factual dispute at
issue is whether a discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.
1995) (internal quotation marks omitted) (emphasis supplied); see also Graham v. Long Island R.R., 230
F.3d 34, 44 (2d Cir. 2000) (holding that even if plaintiff was dismissed due to an erroneous failed
drug test, that fact would not demonstrate that defendant’s reliance on the test gave rise to an
inference of discrimination). Indeed, plaintiff’s arguments on appeal, even if credited, would only
show that Moore exercised poor judgment in concluding that Taddeo had lied to her superiors
during the company investigation. It does not follow, however, that Moore acted with
discriminatory intent.1 Accordingly, the District Court appropriately dismissed Taddeo’s action for
failing to demonstrate “circumstances giving rise to an inference of discriminatory intent.”
Mathirampuzha, 548 F.3d at 78. Even if we were to find that plaintiff satisfied the minimal burden of
the prima facie case of employment discrimination, see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
1Similarly, even if Kevin Dunston, one of Moore’s subordinates had “his mind made up about firing plaintiff,” see
Appellant’s Br. 21, that fact alone would not give rise to discriminatory animus on his part.
                                                          3
248, 253 (1981), thus requiring Berry to come forward with an explanation of the reason for the
dismissal, plaintiff clearly did not proffer evidence from which a jury could reasonably find the
discrimination she claims.

       We have reviewed all of plaintiff’s argument on appeal and find them to be without merit.
Accordingly, we AFFIRM the August 20, 2012 judgment of the District Court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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