     13-2761
     Milione v. City University of New York

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       VINCENZO MILIONE,
13                Plaintiff-Appellant,
14
15                    -v.-                                               13-2761
16
17       CITY UNIVERSITY OF NEW YORK, MATTHEW
18       GOLDSTEIN as CHANCELLOR of CITY
19       UNIVERSITY OF NEW YORK, JAMES MUYSKENS
20       as PRESIDENT OF QUEENS COLLEGE, and
21       ANTHONY TABURRI as DEAN OF THE JOHN D.
22       CALANDRA ITALIAN AMERICAN INSTITUTE,
23                Defendants-Appellees.*
24       - - - - - - - - - - - - - - - - - - - -X


                *
                  The Clerk of Court is directed to amend the
         caption as above.
                                                  1
 1
 2   FOR APPELLANT:             CLAUDIO DEBELLIS, Walsh Markus
 3                              McDougal & DeBellis, LLP, Garden
 4                              City, New York.
 5
 6   FOR APPELLEES:             BETH L. KAUFMAN, Schoeman,
 7                              Updike, Kaufman, Stern & Ascher,
 8                              LLP, New York, New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Southern District of New York (Hellerstein,
12   J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Vincenzo Milione appeals from the judgment of the
19   United States District Court for the Southern District of
20   New York (Hellerstein, J.), granting summary judgment in
21   favor of defendants-appellees. We assume the parties’
22   familiarity with the underlying facts, the procedural
23   history, and the issues presented for review.
24
25        The Calandra Institute (the “Institute”) of the City
26   University of New York (“CUNY”) was created by the New York
27   State legislature in 1979 to foster higher education among
28   Italian Americans. Milione, an Italian American, began
29   working at the Calandra Institute as a research associate in
30   1987. In 1990, Milione filed a complaint with the
31   Department of Labor after CUNY denied him a promotion at
32   City College. The matter was settled in 1990. When
33   Milione’s supervisor also sued CUNY, on the grounds that it
34   discriminated against Italian Americans, Milione testified
35   in support. A settlement was reached in 1994, providing for
36   the Calandra Institute to be integrated into Queens College.
37   In 1995, Milione became “Director for Research and
38   Education” at the Calandra Institute, overseeing research
39   related to CUNY’s compliance with its Italian-American
40   affirmative action programs.
41
42        In March 2006, Anthony Tamburri was named Dean of the
43   Institute. Tamburri promptly suggested various personnel
44   changes, including altering Milione’s title.
45
46        In June 2006, Milione gave a presentation to the New
47   York Conference of Italian-American State Legislators
                                  2
 1   critical of CUNY’s Italian-American affirmative action
 2   programs and CUNY’s progress in eliminating discrimination
 3   against Italian Americans. Milione presented a similarly
 4   critical report to the CUNY chancellor’s office in October
 5   2006. Milione claims that after these presentations,
 6   Tamburri instructed him not to publicly present his research
 7   findings without Tamburri’s prior approval.
 8
 9        In a letter dated August 7, 2007, Tamburri changed
10   Milione’s job title, naming him “Director of Demographic
11   Studies.” Salary and benefits were unaffected; but he
12   claims he was stripped of his staff and prevented from
13   effectively pursuing his research on Italian-American
14   affirmative action, and thus effectively demoted, in
15   retaliation for his 1990 complaint to the Labor Department,
16   his 1992 testimony in the Scelsa lawsuit, and his activities
17   in support of Italian-American affirmative action. Milione
18   filed a charge of discrimination with the Equal Employment
19   Opportunity Commission (“EEOC”) on January 10, 2008. A
20   Notice of Right to Sue was issued April 15, 2010, and
21   Milione brought this action on July 12, 2010, alleging
22   claims for intentional discrimination and retaliation under
23   Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(m),
24   and related claims under New York state law.
25
26        On June 21, 2013, the district court granted summary
27   judgment to Defendants on Milione’s federal claims and
28   declined to exercise supplemental jurisdiction over
29   Milione’s state law claims. This appeal followed.
30
31        Milione appeals the grant of summary judgment to CUNY
32   on his intentional discrimination and retaliation claims
33   under Title VII. See 42 U.S.C. § 2000e-2(m); 42 U.S.C. §
34   2000e-3(a). Milione’s discrimination claim is analyzed
35   under the burden-shifting framework set out in McDonnell
36   Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
37   framework, the “plaintiff must first establish a prima facie
38   case by demonstrating that: (1) she is a member of a
39   protected class; (2) her job performance was satisfactory;
40   (3) she suffered adverse employment action; and (4) the
41   action occurred under conditions giving rise to an inference
42   of discrimination.” Demoret v. Zegarelli, 451 F.3d 140, 151
43   (2d Cir. 2006). The McDonnell Douglas burden-shifting
44   likewise applies to Milione’s retaliation claims. See
45   Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d
46   Cir. 2001). “To establish a prima facie case of
47   retaliation, an employee must show [1] participation in a

                                  3
 1   protected activity known to the defendant; [2] an employment
 2   action disadvantaging the plaintiff; and [3] a causal
 3   connection between the protected activity and the adverse
 4   employment action.” Richardson v. Comm’n on Human Rights &
 5   Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (citation
 6   and internal quotation marks omitted).
 7
 8        “If the plaintiff demonstrates a prima facie case, the
 9   burden shifts to the defendant employer to provide a
10   legitimate, non-discriminatory reason for the action.”
11   Demoret, 451 F.3d at 151. Finally, if the defendant makes
12   such a showing, the plaintiff bears the ultimate burden of
13   persuasion to prove intentional discrimination or
14   retaliation, “for example, by showing that the employer’s
15   proffered reason is pretextual.” Id.
16
17        Milione does not appear to argue on appeal that he was
18   discriminated against on the basis of his national origin.
19   Indeed, he testified that he does not believe Dean Tamburri
20   (himself an Italian American) was motivated by Milione’s
21   Italian-American status. Milione Dep. at 290. Rather, he
22   “has argued and continues to argue that he was not only
23   retaliated against because of his association and advocacy
24   on behalf of Italian Americans, [but that] he was
25   discriminated against for those very same reasons.” Reply
26   Br. 25 (emphasis added); see also Compl. ¶ 39 (alleging he
27   suffered adverse employment actions “based on his national
28   origin as an Italian American and his activities in
29   furtherance of Italian American causes”).
30
31        It is unclear how Milione’s discrimination-by-
32   association differs from his retaliation claim. Cf.
33   Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d
34   Cir. 2010) (“Gorzynski’s retaliation claim relating to race
35   is not based on any discrimination she herself faced, but,
36   rather, on concerns she expressed on behalf of an
37   African-American coworker.”). Distinct or not, they fail
38   for the same reason: Milione cannot show that CUNY’s
39   proffered reasons for the adverse employment actions are
40   mere pretext under McDonnell Douglas.
41
42        “To dispel the inference of discrimination arising from
43   the establishment of a prima facie case, [an employer] is
44   required to articulate--but not prove--a legitimate,
45   non-discriminatory reason” for the adverse action,” and that
46   “explanation must be clear and specific.” Dister v.


                                  4
 1   Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988)
 2   (citations and internal quotation marks omitted).
 3
 4        Tamburri explained that Milione’s title change
 5   accurately reflects his research activities and position
 6   below Dean Tamburri. Milione cannot dispute that Tamburri,
 7   as the new Dean, was entitled to delineate the
 8   responsibilities and duties of his employees and set his own
 9   agenda for the Calandra Institute.   When appointed Dean in
10   March 2006, Tamburri stated that he would make personnel
11   changes, which included changing Milione’s title. Between
12   May 2007 and March 2008, Tamburri modified the titles of six
13   Institute employees. Tamburri also told all Calandra staff
14   members (not only Milione) that he would approve all
15   official, public communications regarding the Institute. In
16   addition, Tamburri had concerns regarding Milione’s
17   inability to take direction and work regular hours.
18   Defendants therefore have sustained their burden of
19   articulating a legitimate reason for their actions, shifting
20   the burden to Milione to show that those reasons are mere
21   pretext for unlawful retaliation.
22
23        To do so, Milione must provide competent “evidence
24   that--at a minimum--create[s] a genuine issue of fact as to
25   [Defendants’] offered reasons or as to a discriminatory
26   motive.” Dister, 859 F.2d at 1115. Having carefully
27   reviewed the record, we detect no genuine issue of fact as
28   to Defendants’ reasons for taking the alleged adverse
29   employment actions or Defendants’ motivation.
30
31        Although Dean Tamburri objected to Milione giving
32   presentations to outside groups without advance clearance,
33   the record does not show that Tamburri intended to retaliate
34   against Milione because he advocated against discrimination,
35   or that Tamburri was discriminating against Italian
36   Americans in disciplining Milione.
37
38        Milione fails to provide evidence that Tamburri’s plan
39   to alter his job title, originally articulated in March
40   2006, was motivated by discriminatory animus. We therefore
41   affirm the dismissal of Milione’s Title VII claims.
42
43        Milione also argues that the district court erred in
44   issuing a protective order precluding the deposition of
45   then-CUNY Chancellor Matthew Goldstein. Under Federal Rule
46   of Civil Procedure 26(c), a “party . . . may move for a
47   protective order . . . to protect a party or person from

                                  5
 1   annoyance, embarrassment, oppression, or undue burden or
 2   expense . . . forbidding the disclosure or discovery.” Fed.
 3   R. Civ. P. 26(c)(1). “We review an order granting a
 4   protective order for abuse of discretion, which we will find
 5   only if the district court’s decision rests on an error of
 6   law or a clearly erroneous finding of fact, or if the
 7   decision cannot be located within the range of permissible
 8   outcomes.” See Lederman v. N.Y.C. Dep’t of Parks &
 9   Recreation, 731 F.3d 199, 202 (2d Cir. 2013) (citation
10   omitted).
11
12        Nothing in the record supports Milione’s contention
13   that Goldstein had personal knowledge of Milione’s
14   employment (much less any relevant knowledge). That copies
15   of letters relating to the change in Milione’s job
16   responsibilities were sent to the Chancellor’s office is no
17   basis to conclude otherwise, as “Chancellor Goldstein
18   overs[aw] 24 colleges and professional schools in the New
19   York City area, including Queens College. He did not
20   supervise [Milione] or the Calandra Institute.” Milione v.
21   City Univ. of N.Y., 950 F. Supp. 2d 704, 714 (S.D.N.Y.
22   2013). Thus, Milione failed to show a need for Goldstein’s
23   testimony--particularly given that Milione conducted
24   depositions of Dean Tamburri and the President of Queens
25   College, James Muyskens. Accordingly, the district court’s
26   protective order was no abuse of discretion.
27
28        For the foregoing reasons, and finding no merit in
29   Milione’s other arguments, we hereby AFFIRM the judgment of
30   the district court.1
31
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35                              By:
36
37
38



         1
              We understand that, because the district court
     dismissed all of Milione’s federal claims, it declined to
     exercise supplemental jurisdiction over his state law claims
     and dismissed them without prejudice. We conclude that the
     district court did not abuse its discretion in so doing.
     See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994).
                                  6
