         10-4257-cv
         Tomasino v. St. John’s University


                           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 TO 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
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 20th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                AMALYA L. KEARSE,
10                PETER W. HALL,
11                     Circuit Judges.
12       _____________________________________
13
14       Adriana C. Tomasino,
15
16                           Plaintiff-Appellant,
17
18                    v.                                        10-4257-cv
19
20       St. John’s University,
21
22                           Defendant-Appellee.
23
24       _____________________________________
25
26       FOR PLAINTIFF-APPELLANT:                  Adriana C. Tomasino, pro
27                                                 se, Brooklyn, NY.
28
29       FOR DEFENDANT-APPELLEE:                   Lyle S. Zuckerman, Vedder
30                                                 Price P.C., New York, NY.
 1        Appeal from a judgment of the United States District
 2   Court for the Eastern District of New York (Gleeson, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of the district court is
 6   AFFIRMED.
 7
 8        Plaintiff-Appellant Adriana C. Tomasino, pro se,
 9   appeals from the judgment of the district court, granting
10   Defendant-Appellee St. John’s University summary judgment on
11   Tomasino’s employment-discrimination claims. We assume the
12   parties’ familiarity with the underlying facts, the
13   procedural history, and the issues presented for review.
14        We review de novo a grant of summary judgment,
15   considering whether the district court correctly concluded
16   that there was no genuine issue as to any material fact and
17   the moving party was entitled to judgment as a matter of
18   law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
19   292, 300 (2d Cir. 2003). “In determining whether there are
20   genuine issues of material fact, we are required to resolve
21   all ambiguities and draw all permissible factual inferences
22   in favor of the party against whom summary judgment is
23   sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
24   2003) (internal quotation marks omitted). Summary judgment
25   is appropriate “[w]here the record taken as a whole could
26   not lead a rational trier of fact to find for the non-moving
27   party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
28   475 U.S. 574, 587 (1986).
29        Having conducted an independent and de novo review, we
30   affirm for substantially the reasons stated by the district
31   court in its thorough and well-reasoned decision of
32   September 23, 2010.
33   [1] No reasonable factfinder could conclude on the record
34   that Tomasino was fired on the basis of her race or national
35   origin as opposed to her insubordination and misconduct.
36   She offers explanations for why she failed to conduct
37   certain presentations as instructed by her supervisor, or
38   call in when out sick, or personally notify her supervisor
39   when she left the office. But even accepting her
40   explanations, there is no genuine issue of material fact.
41   Tomasino has identified no evidence that would permit a
42   rational factfinder to infer that Defendant was motivated by
43   any unlawful discriminatory intent. See St. Mary’s Honor
44   Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“[A] reason cannot
45   be proved to be ‘a pretext for discrimination’ unless it is
46   shown both that the reason was false, and that

                                  2
 1   discrimination was the real reason.”) (emphasis omitted);
 2   cf. Timothy v. Our Lady of Mercy Med. Ctr., 233 F. App’x 17,
 3   20 (2d Cir. 2007) (summary order) (“Even assuming, however,
 4   that inconsistencies or other indicia of pretext are
 5   present, they would not here support, either alone or in
 6   conjunction with the other evidence, an inference that
 7   discrimination on the basis of [plaintiff's protected
 8   status] was the real reason for any of these allegedly
 9   adverse actions.” (citing Fisher v. Vassar Coll., 114 F.3d
10   1332, 1339 (2d Cir. 1997) (en banc), abrogated on other
11   grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530
12   U.S. 133 (2000)).
13   [2] Tomasino’s religious-discrimination claim also fails.
14   Even assuming arguendo that Tomasino could establish a prima
15   facie case for this claim, Defendant was entitled to
16   judgment as a matter of law because it offered her a
17   reasonable accommodation for her desire to act as a lector
18   at a weekday Mass: she could take her lunch hour at 11:15
19   a.m. so that she could serve as lector at the 12:15 p.m.
20   Mass. Tomasino’s objection to an early lunch hour does not
21   render the accommodation unreasonable. See Cosme v.
22   Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (“In formulating
23   such an accommodation, both the employer and employee should
24   remain flexible, with an eye toward achieving a mutually
25   acceptable adjustment. . . . [T]o avoid Title VII liability,
26   the employer need not offer the accommodation the employee
27   prefers. Instead, when any reasonable accommodation is
28   provided, the statutory inquiry ends.”).
29   [3] Defendant was entitled to judgment as a matter of law
30   on the retaliation claim because Tomasino failed to
31   establish a causal connection between her protected activity
32   and the adverse employment action that followed. The only
33   basis Tomasino offered for establishing that connection was
34   the proximity between the complaint she made to Human
35   Resources on September 14 and her October 6 termination.
36   However, because the record is replete with undisputed
37   evidence that Defendant imposed progressive discipline
38   against Tomasino well before September, an inference of
39   discrimination will not arise based solely on the proximity
40   between her complaint and termination. See Slattery v.
41   Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)
42   (“Where timing is the only basis for a claim of retaliation,
43   and gradual adverse job actions began well before the
44   plaintiff had ever engaged in any protected activity, an
45   inference of retaliation does not arise.”).


                                  3
1        We have considered all of Tomasino’s remaining
2   arguments and find them to be without merit. Accordingly,
3   we AFFIRM the judgment of the district court.
4
5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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