     18‐1912
     Lomonoco v. Saint Anne Institute


                             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 ASUMMARY 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 for the Second
 2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
 3   Square, in the City of New York, on the 15th day of May, two thousand
 4   nineteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PIERRE N. LEVAL,
 8                           Circuit Judges,
 9            JESSE M. FURMAN,*
10                           District Judge.
11
12   ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
13   TERI LOMONOCO
14                      Plaintiff‐Appellant,
15
16                  ‐v.‐                                           18‐1912
17


     * Judge Jesse M. Furman, of the United States District Court for the Southern District of
     New York, sitting by designation.

                                                 1
 1   SAINT ANNE INSTITUTE,
 2           Defendant‐Appellee.
 3
 4   ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
 5
 6   FOR PLAINTIFF‐APPELLANT:                   Kevin A. Luibrand, Luibrand Law Firm
 7                                              PLLC, Latham, NY.
 8
 9   FOR DEFENDANT‐APPELLEE:                    Scott P. Quesnel, Girvin & Ferlazzo, P.C.,
10                                              Albany, NY.
11
12        Appeal from a judgment of the United States District Court for the
13   Northern District of New York (Suddaby, C.J.).

14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
15   ADJUDGED AND DECREED that the judgment of the district court be
16   AFFIRMED.

17          Teri Lomonoco appeals from the judgment of the United States District
18   Court for the Northern District of New York (Suddaby, C.J.) granting Saint Anne
19   Institute’s motion for summary judgment and dismissing Lomonoco’s claim
20   under the Age Discrimination in Employment Act (the “ADEA”). We assume
21   the parties’ familiarity with the underlying facts, procedural history, and issues
22   on appeal.

23          We review de novo a grant of summary judgment. D’Amico v. City of
24   New York, 132 F.3d 145, 149 (2d Cir. 1998). Summary judgment is appropriate
25   when “the movant shows that there is no genuine dispute as to any material fact
26   and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
27   see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

28          Pursuant to the ADEA, it is unlawful for an employer to “fail or refuse to
29   hire or to discharge any individual or otherwise discriminate against any
30   individual with respect to his compensation, terms, conditions, or privileges of
31   employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To


                                                  2
 1   establish a prima facie case of age discrimination, Lomonoco must show “(1) that
 2   she was within the protected age group, (2) that she was qualified for the
 3   position, (3) that she experienced adverse employment action, and (4) that such
 4   action occurred under circumstances giving rise to an inference of
 5   discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir.
 6   2010). The district court concluded that Lomonoco failed to establish an
 7   inference of age discrimination. We agree.

 8          The required showing is that the employer treated the plaintiff “less
 9   favorably than a similarly situated employee outside of the protected group.”
10   Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (internal quotation marks
11   omitted). A plaintiff may make that showing “in a variety of ways.”
12   Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). For
13   example, “[g]enerally, a plaintiff’s replacement by a significantly younger person
14   is evidence of age discrimination.” Carlton v. Mystic Transp., Inc., 202 F.3d 129,
15   135 (2d Cir. 2000). However, no inference of age discrimination can be drawn
16   “from the replacement of one worker with another worker insignificantly
17   younger.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996).

18          Lomonoco argues that she was removed from teaching, primarily assigned
19   to photocopy binders, and replaced by two younger coworkers: Kristina Savoie,
20   25, and Emily Cody, 29. However, Lomonoco’s teaching responsibilities were
21   reassigned to multiple teachers, most of them older. Of the 12 classes Lomonoco
22   identified for comparator purposes, Cody and Savoie combined were assigned to
23   teach only two. Eight of the twelve classes were reassigned to teachers who
24   were older than Lomonoco. (Only three of the twelve classes were reassigned to
25   teachers who were considerably younger than Lomonoco.) The reassignment of
26   Lomonoco’s classes fails to support an inference of age discrimination.1


     1 The district court, in tallying the number of “young” teachers to whom Lomonoco’s
     classes were reassigned, suggested incorrectly that her coworkers who were above the
     age of 40 (and thus fell in the ADEA‐protected class) could not serve as comparators
     whose differential treatment may raise an inference of discrimination. See Lomonoco
     v. Saint Anne Institute, No. 1:15‐CV‐1163, 2018 WL 2324051, at *15 (N.D.N.Y. May 22,
     2018) (“[N]umerous other teachers assigned to teach during the 2014‐2015 school year

                                               3
1          We have considered Lomonoco’s remaining arguments and find them to
2   be without merit. For the foregoing reasons, we AFFIRM the judgment of the
3   district court.

4                                            FOR THE COURT:
5                                            CATHERINE O’HAGAN WOLFE, CLERK




    were above the age of 40. . . . Given the fact that the majority of the teachers who were
    assigned Plaintiff’s former classes were within the protected age ground under the
    ADEA, Plaintiff’s focus on the assignments of the two youngest teachers does not, by
    itself, give rise to an inference of discrimination based on age.”). The Supreme Court
    squarely rejected the district court’s reasoning in O’Connor v. Consol. Coin Caterers
    Corp., 517 U.S. 308 (1996), which held that, because the ADEA protects those in the
    protected class against “age discrimination (as opposed to ‘40 or over’ discrimination),”
    a plaintiff’s coworker who is also within the protect class may serve as a comparator
    provided that they are not “insignificantly younger” than the plaintiff. Id. at 312‐13;
    see also Tarshis v. Riese Org., 211 F.3d 30 (2d Cir. 2000), abrogated on other grounds by
    Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (holding with regard to a 67‐year‐old
    plaintiff and a 59‐year‐old comparator that “[a] difference of eight years between the
    age of the person discharged and his replacement . . . is not insignificant”). In any
    event, even accounting for Lomonoco’s 39‐year old, 47‐year‐old, and (perhaps) 53‐year‐
    old coworkers as potential comparators does not change the outcome because, as noted,
    two‐thirds of Lomonoco’s classes went to teachers who were older than she.

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