17-606-cv
Angioletti v. Chao


                          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 28th day of December, two thousand seventeen.
PRESENT: RALPH K. WINTER,
                 GERARD E. LYNCH,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
EDITH ANGIOLETTI,
                                 Plaintiff-Appellant,

                        v.                                                   No. 17-606-cv

ELAINE CHAO, SECRETARY, U.S. DEPARTMENT OF
TRANSPORTATION,
                                 Defendant-Appellee.
----------------------------------------------------------------------

 FOR PLAINTIFF-APPELLANT:                                 LOCKSLEY O. WADE, Law Office of
                                                          Locksley O. Wade, New York, NY.

 FOR DEFENDANT-APPELLEE:                                  DIANE C. LEONARDO, Assistant United
                                                          States Attorney (Varuni Nelson,
                                                          Assistant United States Attorney, on the
                                                          brief), for Bridget M. Rohde, Acting
                                                          United States Attorney for the Eastern
                                                          District of New York, Central Islip, NY.


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       Appeal from a January 31, 2017, judgment of the United States District Court for
the Eastern District of New York (Wexler, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Edith Angioletti appeals from a judgment of the district court
granting a motion by Defendant-Appellee Elaine Chao, the Secretary of the Department of
Transportation, for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) on
Angioletti’s claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and ruling in favor of Chao on Angioletti’s claim under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., pursuant to Fed. R. Civ. P. 52(c).
On appeal, Angioletti challenges the admissibility of certain witness testimony, as well as
the court’s Rule 50 and Rule 52 rulings on her Title VII and ADEA claims. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal, which we recount here only as necessary to explain our decision to affirm.

       I.     Background

      Angioletti worked at the United States Merchant Marine Academy (“the
Academy”) as an administrative assistant for five years. The Academy is part of the
Maritime Administration, which is in turn part of the Department of Transportation.
Angioletti was not a federal employee, however. She was a “NAFI” (“Non-Appropriated
Fund Instrumentality”) employee, meaning that funding for her position came from a
non-governmental source such as alumni donations.

        Following an audit by the Government Accountability Office, however, the
Academy was directed to end its practice of maintaining NAFI employees. The Academy
therefore began “converting” its NAFI positions to federal service positions. That
required processing those positions through the federal hiring process, which in turn
required posting the NAFI positions online. Because several positions, including
Angioletti’s, had not been converted prior to a deadline, Congress enacted special
legislation permitting the Academy to give the employees in the remaining NAFI positions
two-year term appointments. See 46 U.S.C. § 51316. Angioletti and approximately
eleven other NAFI employees, nine males and two other females, received such term
appointments.

       The administrative assistant position was thereafter posted. Angioletti applied for
the position, as did approximately two hundred other people. Eighteen of those applicants
were veterans, ten of whom were deemed qualified for the position. Because federal

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hiring laws required that preference be given to veterans, the government agents charged
with overseeing the hiring process—individuals with the Federal Highway Administration
of the Department of Transportation—forwarded a list known as a “certificate of eligibles”
to Academy personnel that included only the names of the ten qualified veterans.
Academy personnel were generally required to select a candidate from that list, and could
not select Angioletti, who was not a veteran, because there were two or more veterans on
the list. Angioletti’s supervisor, Captain Eric Wallischeck (the Chief of Staff at the
Academy) ultimately selected a disabled female veteran in her early twenties from the
certificate of eligibles for the administrative assistant position.

       Angioletti then filed this action alleging that she had been unlawfully discriminated
against on the basis of her gender and/or age in violation of Title VII and ADEA. She
alleged that the Academy’s use of veterans’ preference laws was a pretext for such
discrimination. More specifically, she contended that the Academy circumvented
veterans’ preference laws to retain male employees who would have otherwise been
displaced, but did not use those same tactics to retain older female employees.

      The case eventually proceeded to trial. Angioletti’s Title VII claim was tried to a
jury while her ADEA claim was tried to the district court. 1 Following the close of
evidence, Chao moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) on
Angioletti’s Title VII claim and for a judgment in her favor pursuant to Fed. R. Civ. P.
52(c) on Angioletti’s ADEA claim. The district court granted Chao’s motions and
Angioletti now appeals.

       II.     The Preclusion of Certain Witness Testimony

       Angioletti maintains that the district court erred in permitting three of Chao’s
witnesses to testify regarding federal hiring laws and regulations in violation of Fed. R.
Evid. 701. Chao responds that Angioletti forfeited this argument by failing to raise it
below.

       “A district court’s ultimate decisions as to the admission or exclusion of evidence
are reviewed for abuse of discretion, and will not be disturbed unless they are manifestly
erroneous.” United States v. Ulbricht, 858 F.3d 71, 122 (2d Cir. 2017) (internal quotation
marks omitted). “It is well settled that arguments not presented to the district court are
considered waived and generally will not be considered for the first time on appeal.”
Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir. 2015).
1
 There is no right to a jury trial in ADEA claims brought against the federal government. See Lehman v.
Nakshian, 453 U.S. 156 (1981).


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        We agree with Chao that Angioletti has forfeited this evidentiary challenge.

       Angioletti did not object during the testimony of two of the witnesses, Kirstin
Wolverton, a human resources specialist with the Federal Highway Administration, and
Ray Venkersammy, a human resources specialist at the Academy. To the contrary,
Angioletti’s counsel asked both witnesses about their familiarity and experience with
federal hiring regulations. Although Angioletti moved prior to trial to preclude
Wolverton and Venkersammy from testifying, the basis of that motion was that they had
not been disclosed pursuant to Fed. R. Civ. P. 26(a)(1)(E),2 not that their anticipated
testimony would violate Fed. R. Evid. 701.3

       With respect to the testimony of the third witness, Kim Norris, a human resources
specialist with the Maritime Administration, Angioletti objected only to (1) a question by
Chao’s counsel that asked whether a certain government agency audits other federal
agencies and (2) to Chao’s request to enter in evidence a copy of the legislation allowing
the Academy to give the remaining NAFI employees two-year term appointments. The
basis for the first objection is not entirely clear, but it cannot be reasonably understood as a
challenge to Norris’s subsequent testimony discussing federal hiring laws. See Ramey v.
Dist. 141, Int’l Ass’n of Machinists & Aerospace Workers, 378 F.3d 269, 281 (2d Cir.
2004) (requiring objecting party to put the court on notice of the basis for its objection).
Angioletti’s objection to the legislation meanwhile appears to have been a challenge only
to a copy of the statute being admitted into evidence. If she intended it to be more than
that, she failed to adequately identify either Norris’s testimony, as opposed to the
documentary evidence itself, or Rule 701, as the basis for her objection. 4 See id.

2
  To the extent that Angioletti challenges the district court’s denial of her pretrial motion to preclude
Wolverton and Venkersammy from testifying, we find her challenge unpersuasive. Preclusion is a harsh
remedy, Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988), and it was not an abuse of
discretion for the district court to decline to make use of that remedy in this case. Angioletti did not
articulate any prejudice that arose from Chao’s failure to disclose these witnesses (who were apparently
known to Angioletti), failed to timely move to preclude them, and received a continuance after their
disclosure, albeit for reasons unrelated to her motion. See Softel, Inc. v. Dragon Med. & Sci. Commc’ns,
Inc., 118 F.3d 955, 961 (2d Cir. 1997) (discussing factors relevant to determining whether district court
abused its discretion in granting or denying motion to preclude testimony).
3
  Although Angioletti argued prior to Wolverton taking the stand that Wolverton’s testimony was
unnecessary insofar as it would concern only legal opinions, Angioletti did not at that time raise Rule 701
nor contend that the testimony would be otherwise improper.
4
  Even if Angioletti’s objection to the statute was sufficient to raise her Rule 701 objection, the district
court did not abuse its discretion when it permitted Norris’s testimony. A “lay witness may testify in the
form of an opinion . . . so long as that testimony is helpful to a clear understanding of the witness’ testimony


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Notably, Angioletti also asked Norris questions concerning her knowledge of federal
hiring regulations on cross-examination.

     In sum, Angioletti has failed to preserve her challenge to the testimony of
Wolverton, Venkersammy, and Norris, and we therefore decline to consider it.

        III.    Judgment As A Matter of Law on Angioletti’s Title VII Claim

     Angioletti next argues that the district court erred by granting Chao’s motion for
judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a).

       “We review de novo a district court’s decision to grant a Rule 50 motion for
judgment as a matter of law,” Newton v. City of New York, 779 F.3d 140, 146 (2d Cir.
2015) (internal quotation marks omitted), construing the evidence in the light most
favorable to Angioletti, Dancy v. McGinley, 843 F.3d 93, 99 (2d Cir. 2016). “Judgment as
a matter of law is appropriate only if the court can conclude that, with credibility
assessments made against the moving party and all inferences drawn against the moving
party, a reasonable juror would have been compelled to accept the view of the moving
party.” Warren v. Pataki, 823 F.3d 125, 139 (2d Cir.), cert. denied sub nom. Brooks v.
Pataki, 137 S. Ct. 380 (2016) (alterations and internal quotation marks omitted). Where,
as here, a defendant has proffered a non-discriminatory reason for its actions, a plaintiff
seeking to rebut a defendant’s proffered reason “must produce not simply some evidence,
but sufficient evidence to support a rational finding that the legitimate, non-discriminatory
reasons proffered by the defendant were false, and that more likely than not discrimination
was the real reason for the employment action.” Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000) (alterations and internal quotation marks omitted).

        Angioletti argues that the Academy circumvented the federal hiring process to
benefit male employees but not her, a female employee. Specifically, Angioletti focuses
on testimony by (1) Shirley Anthony, another female Academy employee who also lost her
position due to the NAFI conversion process, that all nine males in the group of twelve

or the determination of a fact in issue.” Cameron v. City of New York, 598 F.3d 50, 62 (2d Cir. 2010)
(internal quotation marks omitted). Here, to the extent that Norris may have offered any opinion, her
testimony helped the jury understand why she thought veterans’ preference laws prohibited the Academy
from hiring Angioletti. Angioletti’s reliance on our statement that “Rule 701(b) bars lay opinion testimony
that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment
decision,” Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000), is not persuasive. Unlike in Hester,
where several witnesses opined simply that the plaintiff’s treatment must have been related to her race, id.
at 183, Norris did not speculate about Wallischeck’s motivations. Instead, she explained why, pursuant to
federal law, Angioletti’s name was not on the certificate of eligibles.


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employees who were given two-year term appointments were able to retain their jobs (but
that two of the three females in that group were not); (2) Captain Wallischeck purportedly
conceding that some of those nine males “may have been” rehired by the Academy through
a temporary employment agency; (3) Norris stating that some of the Academy’s
information technology employees’ positions were contracted out; and (4) Venkersammy
stating that two males from the group of twelve term employees still worked at the
Academy.

       The evidence that Angioletti relies on does not support her contention that the
Academy unlawfully discriminated and circumvented federal hiring laws.
Venkersammy, for example, testified that of the two males who were given term
appointments who still worked at the Academy, one male had been displaced by a veteran
who then decided to leave, enabling that male to get his job back, and the other male was
able to return to the Academy in a different job. Wallischeck stated on cross-examination
that he did not know what happened to some of the nine males and speculated only that
they “may have been” able to continue working through a temporary employment agency
when directly asked by Angioletti’s counsel if that might be the case.

       Other evidence regarding other employees’ jobs was of questionable relevance to
Angioletti’s specific situation. For instance, although Norris testified that information
technology jobs were contracted out—thereby suggesting that the employees in those
positions may have been able to retain their jobs—she did not state that Angioletti’s
position could have been similarly contracted out.

        Finally, Anthony’s testimony that all nine males were given the opportunity to
retain their positions, but only one of the three females was, is insufficient to suggest that
the Academy’s reliance on veterans’ preference requirements was pretextual.

        First, Anthony did not testify that those nine males retained their jobs even though
they should have been displaced by qualified veterans. Chao’s evidence made clear that
the reason Angioletti was not retained was because qualified veterans applied for, and had
to be given absolute preference for, Angioletti’s position. It may well have been the case
that the nine males and one female who allegedly retained their positions were not blocked
by veterans’ preference laws. Indeed, Venkersammy testified that at least one male from
the group competed for, and was selected for, his former job.

      Second, the record demonstrates that several male NAFI employees whose jobs
were posted before the original conversion deadline were also displaced by veterans. This




                                              6
evidence, which Angioletti failed to meaningfully rebut,5 demonstrates that a number of
males and females were displaced, and that any circumvention of the hiring process was
not based on gender discrimination, but on some other factor such as whether positions
could be contracted out.

       Chao put forth extensive evidence indicating that Angioletti was not selected
because a number of qualified veterans applied for her position. Angioletti failed to rebut
that evidence. Instead, she offered evidence that other individuals may have retained their
positions. In doing so, she failed to establish that those other individuals should have been
replaced by veterans pursuant to federal hiring laws, or that the alternate process that
allowed them to keep their jobs could have been used to allow Angioletti to maintain her
position. Notably, Angioletti was also replaced by a female, casting further doubt on her
claim. Therefore, the district court did not err when it granted Chao’s motion for
judgment as a matter of law on the sex discrimination claim.

       IV.     The District Court’s Conclusion on Angioletti’s ADEA Claim

       Finally, Angioletti contends that the district court erred when it ruled in Chao’s
favor pursuant to Fed. R. Civ. P. 52(c) on her ADEA claim. The district court rejected
Angioletti’s ADEA claim after concluding that Angioletti had either failed to establish an
inference of age discrimination or, in the alternative, failed to adequately rebut Chao’s
non-discriminatory reason for her action.

       “Following a bench trial, this Court reviews the district court’s findings of fact for
clear error and its conclusions of law and mixed questions de novo.” United States v.
Apple, Inc., 791 F.3d 290, 313 (2d Cir. 2015) (internal quotation marks omitted).

        Under the ADEA, “age must be the but for cause of the adverse employment
action.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014). The
requirement that a plaintiff who seeks to demonstrate that a defendant’s proffered reasons
for its actions must produce “sufficient evidence to support a rational finding that the
legitimate, non-discriminatory reasons proffered by the defendant were false, and that
more likely than not discrimination was the real reason for the employment action,”
Weinstock, 224 F.3d at 42 (alterations and internal quotation marks omitted), applies with

5
 After originally stating that men and women from the original group of NAFI employees lost their jobs
Anthony stated that only three women from that group, including Angioletti and herself, lost their jobs.
She later conceded, however, that a man from that group had lost his job but was able to secure another
position at the Academy. Thus, Anthony’s testimony does not establish that no males from the original
NAFI group lost their jobs.


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equal force under the ADEA, see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106
(2d Cir. 2010).

       Even assuming without deciding that the district court erred when it concluded that
Angioletti failed to establish a prima facie inference of age discrimination, we agree that
Angioletti failed to rebut Chao’s assertion that Angioletti was not hired because of
mandatory veterans’ preference requirements. As we have already pointed out, the
evidence Chao put forward in support of her contention that Angioletti was not hired
because of laws concerning preference for veterans was compelling. Additionally,
Wallischeck, who ultimately hired Angioletti’s replacement, denied making his hiring
decision based on Angioletti’s age or that of her replacement. By contrast, we find no
evidence that suggests that veterans’ preference requirements were invoked as a pretext to
hide discrimination on the basis of age. For example, the record reflects no remarks about
Angioletti’s age save for one she made herself. Even if another Academy employee had
commented on Angioletti’s age, such a comment would not be sufficient to establish
discrimination. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000)
(noting that evidence of one stray comment regarding age is generally insufficient to
establish a prima facie case of discrimination). Indeed, relatively little trial testimony was
devoted to developing Angioletti’s age discrimination claim, and the few facts that bear on
the question of whether she was subjected to such discrimination ultimately fail to establish
that she was not hired because of her age.

      Therefore, the district court correctly rendered judgment in favor of Chao on
Angioletti’s ADEA claim as well.

       V.     Conclusion

      We have considered Angioletti’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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