18-2373-cv
Gallegos v. Tompkins Consolidated Area Transit, Inc.

                               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
19th day of November, two thousand nineteen.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            MICHAEL H. PARK,
                        Circuit Judges.
_____________________________________________________

ANDRE P. GALLEGOS,

                 Plaintiff-Appellant,

                          v.                                                  18-2373-cv

TOMPKINS CONSOLIDATED AREA TRANSIT, INC.,

            Defendant-Appellee.1
_____________________________________________________

Appearing for Appellant:           Andres P. Gallegos, pro se, Ithaca, N.Y.

Appearing for Appellee:            John T. McCann, Hancock Estabrook, LLP (Whitney M.
                                   Kummerow, on the brief), Syracuse, N.Y.

Appeal from the United States District Court for the Northern District of New York (Sharpe, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
1
    The Clerk of the Court is directed to amend the caption as above.
         Appellant Andres Gallegos, pro se, appeals from the July 16, 2018 judgment of the
United States District Court for the Northern District of New York (Sharpe, J.) granting
summary judgment to defendant Tompkins Consolidated Area Transit (“TCAT”). Gallegos sued
TCAT, his employer, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination
in Employment Act (“ADEA”), alleging that he was denied a promotion to supervisor because of
his race, national origin, and age. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and
draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d
120, 126-27 (2d Cir. 2013). “Summary judgment is proper only when, construing the evidence in
the light most favorable to the non-movant, there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Doninger v. Niehoff, 642 F.3d 334,
344 (2d Cir. 2011) (internal quotation marks omitted)).

        Title VII and ADEA claims are evaluated under the McDonnell Douglas framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 82–83 (2d Cir. 2015) (Title VII); Bucalo v. Shelter Island Union Free
Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (ADEA). To make out a prima facie case of
discrimination, plaintiff bears the burden of establishing that the employer took adverse action
against him. See McDonnell Douglas, 411 U.S. at 802; Vega, 801 F.3d at 83 (Title VII); see also
Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009) (to establish a prima
facie failure-to-promote case, the plaintiff must show he was rejected for the position). Here,
Gallegos failed to offer sufficient evidence to show that TCAT took any adverse action against
him. Instead, the record demonstrates that Gallegos withdrew his application for the supervisor
position before his second interview. TCAT therefore did not reject his application. In sum,
TCAT did not take any action against Gallegos, let alone adverse action.

       We have considered the remainder of Gallegos’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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