     11-4781
     Davis v. Peake

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                              Circuit Judge,
10                LAURA TAYLOR SWAIN,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       GEORGE DAVIS,
15                Plaintiff-Appellant,
16
17                    -v.-                                               11-4781
18
19       HONORABLE JAMES A. PEAKE, SECRETARY,
20       UNITED STATES DEPARTMENT OF VETERANS
21       AFFAIRS,
22                Defendant-Appellee,
23       - - - - - - - - - - - - - - - - - - - -X


                *
                Judge Laura Taylor Swain, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1
 2   FOR APPELLANT:             MICHAEL H. SUSSMAN, Sussman &
 3                              Watkins, Goshen, New York.
 4
 5   FOR APPELLEE:              JOSEPH A. PANTOJA (Benjamin H.
 6                              Torrance, on the brief),
 7                              Assistant United States
 8                              Attorneys, for Preet Bharara,
 9                              United States Attorney for the
10                              Southern District of New York,
11                              New York, New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Duffy, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Plaintiff George Davis appeals from the judgment of the
21   United States District Court for the Southern District of
22   New York (Duffy, J.), granting summary judgment in favor of
23   Defendant James A. Peake, on behalf of the Department of
24   Veterans Affairs (“VA”), dismissing the complaint. We
25   assume the parties’ familiarity with the underlying facts,
26   the procedural history, and the issues presented for review.
27
28        This Court reviews de novo an order granting summary
29   judgment, drawing all factual inferences in favor of the
30   non-moving party. Costello v. City of Burlington, 632 F.3d
31   41, 45 (2d Cir. 2011). Summary judgment is appropriate when
32   “there is no genuine dispute as to any material fact and the
33   movant is entitled to judgment as a matter of law.” Fed. R.
34   Civ. P. 56(a).
35
36        Davis failed to establish a prima facie case of race or
37   age discrimination, under Title VII of the Civil Rights Act
38   of 1964 (“Title VII”) or under the Age Discrimination in
39   Employment Act (“ADEA”). See James v. N.Y. Racing Ass’n,
40   233 F.3d 149, 153-54 (2d Cir. 2000). Critically, Davis
41   could not raise an inference that his race or his age was
42   the reason he was passed over for a job, because he was not
43   similarly situated to those that were ultimately hired
44   (i.e., they were better qualified). See Shumway v. United
45   Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). The
46   racial makeup of the interviewing panel and alleged


                                  2
 1   departures from procedure in the hiring process do not
 2   suffice to raise an inference of invidious discrimination.
 3
 4        Even if Davis could establish a prima facie case--which
 5   he cannot--he utterly fails to show that the
 6   nondiscriminatory reasons offered by the VA for passing him
 7   over were pretextual. The Title VII and ADEA discrimination
 8   claims fail for that reason as well. James, 233 F.3d at
 9   154.
10
11        Likewise, Davis cannot establish a prima facie case of
12   retaliation under Title VII for want of any causal link
13   between his activity filing Equal Employment Opportunity
14   (“EEO”) complaints and the VA’s adverse action. Manoharan
15   v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d
16   590, 593 (2d Cir. 1988). Even if Davis could establish a
17   prima facie claim for retaliation, he fails to show that the
18   VA’s nonretaliatory reasons for passing him over were
19   pretextual.
20
21        For the foregoing reasons, and finding no merit in
22   Davis’s other arguments, we hereby AFFIRM the judgment of
23   the district court.
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27
28




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