    15-3274
    Duckett v. Foxx


                               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.

                    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 November, two thousand sixteen.

    PRESENT:
                RICHARD C. WESLEY,
                DEBRA ANN LIVINGSTON,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges,
    _____________________________________

    GEORGE J. DUCKETT,

                            Plaintiff-Appellant,

                      v.                                                        15-3274

    ANTHONY FOXX,

                      Defendant – Appellee.
    _____________________________________

    For Plaintiff-Appellant:             GEORGE J. DUCKETT, pro se, Jamaica Estates, N.Y.

    For Defendant-Appellee:              RACHEL BALABAN, Assistant United States Attorney (Varuni
                                         Nelson, on the brief), for Robert L. Capers, United States
                                         Attorney for the Eastern District of New York, Brooklyn, N.Y.

             Appeal from the judgment of the United States District Court for the Eastern District of

    New York (Garaufis, J.), entered August 17, 2015.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant George Duckett, pro se, appeals from the district court’s grant of

summary judgment to Defendant-Appellee Anthony Fox, Secretary of Transportation, on

Duckett’s claims of employment discrimination under Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq. His complaint alleged that his employer, the Federal Aviation Administration (“FAA”),

discriminated against him on the basis of his age and race when it did not promote him and instead

chose another employee for the same position. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review a district court’s grant of summary judgment de novo, bearing in mind that

summary judgment is appropriate “only ‘if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” Kirkland v.

Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).              All

ambiguities must be resolved, and all reasonable inferences drawn, in favor of the non-movant.

Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999).

       Title VII and ADEA claims are governed by the burden-shifting framework set forth in

McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). See Kirkland, 760 F.3d at 225 (Title

VII); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106–07 (2d Cir. 2010) (ADEA). In order

to establish a prima facie case of discriminatory failure to promote in violation of Title VII or the

ADEA, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for

the promotion for which he applied, (3) he was denied the promotion, and (4) the denial occurred

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under circumstances giving rise to an inference of discrimination on a basis forbidden by Title VII

or the ADEA. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (Title VII); see

Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000) (ADEA). If the

plaintiff establishes such a prima facie case, and the employer presents a legitimate,

non-discriminatory reason for its actions, it is the plaintiff’s burden to present evidence that the

employer’s reason is mere pretext. See Howley, 217 F.3d at 150; Mauro, 208 F.3d at 387–88.

       The district court here properly granted summary judgment to Defendant-Appellee

because Duckett did not establish that the FAA’s failure to promote him occurred under

circumstances giving rise to an inference of discrimination. Duckett argues that because, in his

view, the 17-question test the FAA used to choose who to promote was not a valid measure of

competency and did not address his specific area of expertise, it was designed to mask the FAA’s

true discriminatory motive. The test, however, consisted of questions relevant to the position at

issue—Aviation Safety Engineer (Damage Tolerance Technical Specialist)—as fifteen of its

questions (a) were based on a training workshop on fatigue and damage tolerance that both

Duckett and the employee the FAA ultimately promoted had attended, and (b) concerned subjects

covered by standard textbooks in the field. Duckett otherwise failed to demonstrate that the test,

which the FAA ultimately administered verbally, violated any specific provision of the FAA’s

Human Resources Policy Manual, that any such violation suggested discrimination, or that any

other circumstances of the promotion process implied the existence of a discriminatory motive.

       Further, even if Duckett had established a prima facie case, he proffered no evidence to

rebut the FAA’s legitimate nondiscriminatory reason for not promoting him, namely the fact that

he was not the highest scorer on the promotion test. See Henry v. Daytop Vill., Inc., 42 F.3d 89,

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94 n.1 (2d Cir. 1994) (“Evidence that [a] reason is false . . . is central to establishing pretext . . . .”).

Duckett conceded both that he did not score as well as the employee who was ultimately promoted,

and that he was not otherwise more qualified for the position than that employee. See Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981) (“[T]he employer has discretion to choose

among equally qualified candidates, provided the decision is not based upon unlawful criteria.”).

        We have considered all of Duckett’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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