     17-2686
     Mazzeo v. Mnuchin


                          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 ASUMMARY 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 the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 19th day of September, two thousand eighteen.
 4
 5   PRESENT:
 6               JON O. NEWMAN,
 7               DENNIS JACOBS,
 8               ROSEMARY S. POOLER,
 9                     Circuit Judges,
10   _____________________________________
11
12   Michael Mazzeo,
13
14                         Plaintiff-Appellant,
15
16                   v.                                                     17-2686
17
18   Steven T. Mnuchin, Secretary, United
19   States Department of the Treasury,
20
21                     Defendant-Appellee.
22   _____________________________________
23
24   FOR PLAINTIFF-APPELLANT:                      Michael A. Mazzeo, pro se, Cortlandt Manor,
25                                                 NY.
26
27   FOR RESPONDENT-APPELLEE:                      Emily E. Bretz, Benjamin H. Torrance,
28                                                 Assistant United States Attorneys for Geoffrey
29                                                 S. Berman, United States Attorney for the
30                                                 Southern District of New York, New York, NY.
31
 1        Appeal from a judgment of the United States District Court for the Southern District of
 2   New York (Briccetti, J.).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the judgment of the district court is AFFIRMED.
 6
 7          Michael Mazzeo, pro se, appeals from the district court’s grant of judgment on the

 8   pleadings in favor of the defendant in Mazzeo’s employment discrimination action. See Fed. R.

 9   Civ. P. 12(c). Mazzeo sued his former employer, the Internal Revenue Service (“IRS”),

10   asserting claims of age, sex, race, national origin, and disability discrimination, as well as

11   retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination

12   in Employment Act of 1967 (“ADEA”), and the Rehabilitation Act of 1973. On de novo

13   review, we affirm the grant of judgment on the pleadings. See Hayden v. Paterson, 594 F.3d

14   150, 160 (2d Cir. 2010). We assume the parties’ familiarity with the underlying facts, the

15   procedural history, and the issues presented for review.

16          1. Mazzeo fails to state a claim of age, sex, race, or national origin discrimination under

17   either Title VII or the ADEA. “The [same] framework for establishing a prima facie case of

18   discrimination under Title VII . . . applies to ADEA claims.” Roge v. NYP Holdings, Inc., 257

19   F.3d 164, 168 (2d Cir. 2001) (internal citations omitted). Under that framework, a plaintiff can

20   survive a motion for judgment on the pleadings only if his complaint “plausibly allege[s] that

21   (1) [his] employer took adverse action against him, and (2) [a protected trait, such as the

22   plaintiff’s race] was a motivating factor in the employment decision.” Vega v. Hempstead

23   Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). As to the second element, an ADEA

24   plaintiff bears the added burden of plausibly alleging that the relevant protected trait--his age--

25   “was the ‘but-for’ cause of the employer’s adverse action.” Id. at 86 (quoting Gross v. FBL Fin.

                                                       2
 1   Servs., Inc., 557 U.S. 167, 177 (2009)). However, we apply only the “motivating factor”

 2   standard here because Mazzeo fails to sustain even that lesser burden.

 3          Mazzeo’s complaint does not allege “facts ‘[that give rise to] an inference of

 4   discriminatory motivation’” for any adverse employment action. Id. at 85 (quoting Littlejohn v.

 5   City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). Discriminatory motivation may be

 6   inferred from, among other things, “invidious comments about others in the employee’s

 7   protected group[,] or the more favorable treatment of employees not in the protected group.”

 8   Littlejohn, 795 F.3d at 312 (internal quotation marks omitted). Mazzeo does not allege that any

 9   supervisor or other IRS employee made disparaging remarks or that other employees were

10   treated differently; he makes only a conclusory allegation of discrimination, and that is not

11   enough. While he alleges in his appellate papers that he was treated differently from younger

12   female employees (who were permitted to keep their government vehicles and access the IRS

13   computer system when they missed work for medical reasons), those allegations are not properly

14   before us because they were not included in his complaint or otherwise raised in the district

15   court. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 29 n.14 (2d Cir. 2015); Int’l Bus.

16   Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). Accordingly, his discrimination

17   claims under Title VII and the ADEA fail.

18          2. Mazzeo fails to state a claim of disability discrimination under the Rehabilitation Act.

19   The statute provides: “No otherwise qualified individual with a disability . . . shall, solely by

20   reason of her or his disability, be excluded from the participation in, be denied the benefits of, or

21   be subjected to discrimination under any program or activity . . . conducted by any Executive

22   agency . . . .” 29 U.S.C. § 794(a). To establish a prima facie case of discrimination under the

                                                       3
 1   Rehabilitation Act, a plaintiff must show that (1) he is a “qualified individual with a disability”

 2   within the meaning of the statute; (2) he was excluded or discriminated against by a public

 3   entity; and (3) such exclusion or discrimination was due to his disability. Hargrave v. Vermont,

 4   340 F.3d 27, 34-35 (2d Cir. 2003).

 5           As the district court concluded, Mazzeo fails to plausibly allege that he was a “qualified

 6   individual with a disability.” 29 U.S.C. § 794(a). The Rehabilitation Act takes its definition of

 7   “disability” from the Americans With Disabilities Act, which provides that a plaintiff is disabled

 8   if he (1) has “a physical or mental impairment that substantially limits one or more major life

 9   activities”; (2) has “a record of such an impairment”; or (3) is “regarded as having such an

10   impairment.” 42 U.S.C. § 12102(1); 29 U.S.C. § 705(20)(B). Even liberally construing

11   Mazzeo’s complaint to incorporate the facts stated in the Equal Employment Opportunity

12   Commission (“EEOC”) decision referenced in the complaint, see L-7 Designs, Inc. v. Old Navy,

13   LLC, 647 F.3d 419, 422 (2d Cir. 2011), Mazzeo does not plausibly allege an impairment that

14   substantially limits a major life activity.

15           Although working is considered a major life activity, “[t]he inability to perform a single,

16   particular job does not constitute a substantial limitation in the major life activity of working.”

17   Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 65 (2d Cir. 2003) (quoting 29

18   C.F.R. § 1630.2(j)(3)(i) (1998)). In considering whether a major life activity is substantially

19   limited by an impairment, courts consider “the nature and severity of the impairment; its duration

20   or expected duration; and the existence of any actual or expected permanent or long term

21   impact.” Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005). While the EEOC

22   decision noted that Mazzeo had undergone three shoulder surgeries and had been deemed

                                                       4
1    medically unqualified to perform his job duties, that determination applied to one position

2    (special agent) and was temporary, as he was eventually able to return to full duty. See

3    Cameron, 335 F.3d at 65; Capobianco, 422 F.3d at 57. He therefore fails to plausibly allege

4    that he meets the statutory definition of disabled.

5           3. Mazzeo’s claim of retaliation fails under each applicable statute. In order to make out

6    a prima facie case of retaliation under Title VII, the ADEA, or the Rehabilitation Act, a plaintiff

 7   must show that (1) he participated in a protected activity; (2) the employer knew of the protected

 8   activity; (3) he suffered a materially adverse employment action; and (4) there was a causal

9    connection between the protected activity and the adverse employment action. Kessler v.

10   Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006) (Title VII and the

11   ADEA); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (Rehabilitation Act). To

12   plausibly allege a materially adverse employment action, a plaintiff must allege that his

13   employer’s conduct resulted in a harm that “well might have dissuaded a reasonable worker from

14   making or supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White,

15   548 U.S. 53, 68 (2006) (internal quotation marks omitted).

16          Mazzeo alleged that the IRS retaliated against him for filing an EEOC complaint by

17   threatening him with discipline and a civil action at a meeting and by sending a follow-up email

18   warning that he could face disciplinary action if he caused discord or dissension among IRS

19   employees. Neither the meeting nor the email resulted in material harm to Mazzeo, and merely

20   advising an employee of possible disciplinary action is not, by itself, an adverse action. See

21   Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (holding as a



                                                       5
1   matter of law that a “counseling” session and criticism to improve performance or avoid

2   discipline is not an adverse action).

3          We have considered Mazzeo’s remaining arguments and find them to be without merit.

4   Accordingly, we AFFIRM the judgment of the District Court.

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




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