12-4114-cv
McDonald v. USPS

                           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
21st day of October, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            GERARD E. LYNCH,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________________________

CORNELIO D. MCDONALD,

                              Plaintiff-Appellant,

                        -v-                                                12-4114-cv

UNITED STATES POSTAL SERVICE AGENCY,
JOHN E. POTTER, POSTMASTER GENERAL,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:      Cornelio D. McDonald, pro se, Fresh Meadows, N.Y.

Appearing for Appellee:       John Vagelatos, Assistant United States Attorney (Varuni Nelson,
                              on the brief), for Loretta E. Lynch, United States Attorney for the
                              Eastern District of New York, Brooklyn, N.Y.


       Appeal from the United States District Court for the Eastern District of New York
(Dearie, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

         Cornelio D. McDonald, proceeding pro se, appeals from the judgment and order of the
district court that denied his motion for summary judgment and granted Appellees’ cross-motion
for summary judgment in McDonald's employment discrimination action brought pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues presented
for review.

        As an initial matter, McDonald’s assertions that, in contravention of an unidentified order
of the magistrate judge, Appellees failed to depose him, refused to allow him to depose United
States Postal Service (“USPS”) employees, and did not provide him with certain unidentified
documents, are without merit. Under the Federal Rules of Civil Procedure, McDonald was
entitled to submit, in support of his summary judgment motion and in opposition to Appellees’
cross-motion, an affidavit or declaration based on his personal knowledge of the events, see Fed.
R. Civ. P. 56(c), and thus, he was not prejudiced by Appellees’ decision not to depose him.
McDonald also fails to identify the discovery order of the magistrate judge with which the
Appellees allegedly failed to comply and further fails to identify the “documentation” he sought.
Morever, an independent review of the record reveals only one order of the magistrate judge
relating to McDonald’s requests for document production and to depose USPS employees, and
that order indicates that he withdrew the requests. See E.D.N.Y. dkt no. 08-cv-4937, doc. 67
(Order).

        Turning to the merits of McDonald’s appeal, having conducted an independent and de
novo review of the record, we find that the district court properly granted Appellees’ summary
judgment motion with respect to McDonald’s Title VII and ADEA discrimination claims relating
to the various actions taken against him by the USPS, including the termination of his
employment.

        Claims brought under Title VII and the ADEA are governed by the familiar
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). See, e.g., Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 92 (2d Cir.
2013) (Title VII); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010)
(ADEA). Under this scheme, the plaintiff must satisfy the minimal burden of making out a
prima facie case of discrimination; the burden then shifts to the defendant to produce a
legitimate, nondiscriminatory reason for its actions; and, if successful, the plaintiff must prove
not only that the proffered nondiscriminatory reason was pretextual but also that the
discrimination was the “real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993);
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Gorzynski, 596
F.3d at 106 (to establish pretext in the ADEA context, a plaintiff must show that his age was the
‘but for’ cause of the defendant’s adverse actions (citing Gross v. FBL Financial Servs., 557
U.S. 167 (2009))).

       Here, even assuming that McDonald satisfied his “minimal burden” of making out a
prima facie case of discrimination, the district court correctly concluded that he had wholly

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failed to present any evidence suggesting that Appellees’ proffered legitimate reasons for the
actions taken against him—the various complaints levied against him by both USPS personnel
and the public, as well as his two serious altercations with members of the public—were pretexts
for discrimination. In addition, we have held that an “employer is entitled to judgment as a
matter of law if the record conclusively reveals some nondiscriminatory reason for the
employer’s decision.” Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114,
125 (2d Cir. 2008) (internal alterations omitted) (quoting Reeves, 530 U.S. at 148) (affirming the
district court’s summary judgment decision in favor of employer where the record demonstrated
“overwhelming evidence” that the plaintiff was terminated for nondiscriminatory reasons). In
this case, the Appellees submitted the affidavits of over seven people, the majority of whom
were not USPS employees, who had all experienced McDonald’s belligerent and argumentative
temperament. This “overwhelming evidence” uniformly supports the USPS’s decision to
discipline and ultimately remove McDonald for conduct unbecoming a postal employee.

        McDonald’s complaints about the arbitration procedure by which he was ultimately
removed are also without merit. First, although he asserts that the USPS prevented a “black
Security Officer” from testifying during the arbitration proceedings, he specifically admitted in
his summary judgment motion that he himself “never asked [the officer] to testify or write a
statement on [his] behalf.” Next, although he complains of the divergent outcomes of the two
arbitration proceedings, he fails to recognize that each arbitrator was dealing with a separate
grievance — the first addressed his August 2007 placement on emergency status and the second
dealt with his October 2007 notice of removal. Finally, McDonald’s complaint that the “white
Arbitrator” made a “racist comment” in her decision is meritless. A review of the July 10, 2008
Award Summary reveals that the arbitrator mentioned McDonald’s response to allegedly being
called a “nigger” by a non-USPS pedestrian only because he had attempted to justify his
subsequent actions towards that pedestrian as an “emotional reaction” to the insult.

         Finally, though not separately addressed in the district court’s order, summary judgment
in favor of Appellees was appropriate on McDonald’s hostile work environment claim. In order
to maintain such a claim, McDonald was required to show, inter alia, that: (1) the harassment
was “sufficiently severe or pervasive to alter the conditions of [his] employment and create an
abusive working environment,” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quotation
marks omitted); and (2) the harassment “occurred because of” his membership in a protected
class, id. at 374. In assessing the severity of harassing conduct, courts consider “whether [the
conduct] is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with [the] employee’s work performance.” Feingold v. New York, 366
F.3d 138, 150 (2d Cir. 2004) (second alteration in original) (internal quotation marks omitted).
“As a general rule, incidents [of harassment] must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.” Id. (internal quotation
marks omitted).

       Here, although McDonald complains about a number of remarks made by his USPS
supervisors, the only remarks that arguably contain a reference to McDonald’s membership in a
protected class for which there is support in the record are Jeff Goldman’s alleged comment that
the USPS “didn’t need [McDonald’s] kind working [t]here” and Goldman’s “derogatory song”
about McDonald’s interaction with the Equal Employment Office. Even assuming that Goldman
made these two statements, McDonald failed to explain when, during the 18 years he worked for

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the USPS, the statements were made. On this record, no inference could be drawn that these
remarks were “sufficiently continuous and concerted in order to be deemed pervasive.”
Feingold, 366 F.3d at 150, and thus, McDonald’s hostile work environment claim fails as a
matter of law.

       We have considered all of McDonald’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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