     10-1776-cv
     Diello v. Potter



                          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 9th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       NANCY DIELLO,
15
16                      Plaintiff-Appellant,
17
18                      -v.-                                      10-1776-cv
19
20       JOHN E. POTTER, Postmaster General,
21       and UNITED STATES POSTAL SERVICE,
22
23                      Defendants-Appellees.
24
25       - - - - - - - - - - - - - - - - - - - -X
26

                                                  1
 1   FOR APPELLANT:    LUCIANO L. LAMA, Ithaca, NY.
 2
 3   FOR APPELLEES:    JANE B. WOLFE, Assistant United States
 4                     Attorney, for William J. Hochul, Jr.,
 5                     United States Attorney for the Western
 6                     District of New York, Buffalo, NY.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Western District of New York (Larimer, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Appellant Nancy Diello appeals from the judgment
16   entered on March 17, 2010 by the United States District
17   Court for the Western District of New York (Larimer, J.),
18   which granted appellees’ motion for summary judgment on
19   Diello’s age discrimination and retaliation claims, brought
20   pursuant to the Age Discrimination in Employment Act (ADEA),
21   29 U.S.C. §§ 623(a), 626(d)(1), and Title VII, 42 U.S.C.
22   §§ 2000e-3, 2000e-5(g), respectively. We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        A grant of summary judgment is reviewed de novo,
27   “resolv[ing] all ambiguities and draw[ing] all permissible
28   factual inferences in favor of the party against whom
29   summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
30   128, 137 (2d Cir. 2003) (internal quotation marks omitted).
31
32   [1] It is conceded that Diello has established a prima
33   facie case of age discrimination under the ADEA. The burden
34   therefore shifts to the appellees to provide some
35   “legitimate, nondiscriminatory reason” for selecting Mr.
36   King over Ms. Diello. See McDonnell Douglas Corp. v. Green,
37   411 U.S. 792, 802 (1973); Gorzynski v. JetBlue Airways
38   Corp., 596 F.3d 93, 106 (2d Cir. 2010). The appellees
39   sustained their burden: Ms. Diello received multiple
40   unfavorable reviews from past supervisors (including the
41   primary decisionmaker for the promotion at issue); Mr. King
42   was favorably reviewed; and Mr. King outperformed Ms. Diello
43   in the interview for the position. Because these
44   explanations are “reasonably attributable to an honest even
45   though partially subjective evaluation of . . .
46   qualifications, no inference of discrimination can be
47   drawn.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d

                                  2
 1   93, 105 (2d Cir. 2001) (quoting Lieberman v. Gant, 630 F.2d
 2   60, 67 (2d Cir. 1980)). Accordingly, “the presumption of
 3   age discrimination dissolves, and the burden shifts back to
 4   the plaintiff to prove that the employer’s stated reasons
 5   are merely pretextual.” Abdu-Brisson v. Delta Air Lines,
 6   Inc., 239 F.3d 456, 466 (2d Cir. 2001).
 7
 8        Diello fails to establish that appellees’ reasons are
 9   pretextual. She challenges one review based on its brevity;
10   but there is no threshold length for a non-pretextual
11   review. Another is challenged on the ground that the
12   reviewer supervised Ms. Diello for only six months; but that
13   is a period sufficient to familiarize oneself with a
14   subordinate’s performance for an informed review. Diello
15   contends that she is better qualified and more experienced
16   than King; but “[w]hen a plaintiff seeks to prevent summary
17   judgment on the strength of a discrepancy in qualifications
18   ignored by an employer, that discrepancy must bear the
19   entire burden of allowing a reasonable trier of fact to not
20   only conclude the employer’s explanation was pretextual, but
21   that the pretext served to mask unlawful discrimination.”
22   Byrnie, 243 F.3d at 103. This she has not done.*
23
24        Had Diello provided compelling evidence of a pattern of
25   promotions of younger employees over older employees, her
26   pretext allegation might be plausible. See Maresco v. Evans
27   Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 108-09,
28   113 (2d Cir. 1992). Instead, she offered an unauthenticated
29   (and presumably self-created) chart, which lacked necessary
30   details such as the number of promotions, the promotion
31   criteria, or information about non-promoted employees. But
32   a motion for summary judgment may not be defeated “by
33   offering purely conclusory allegations of discrimination,
34   absent any concrete particulars.” Meiri v. Dacon, 759 F.2d
35   989, 998 (2d Cir. 1985).



         *
           Diello was longer tenured than King; but she makes no
     argument--and cites no source suggesting--that seniority is
     a dispositive (or disproportionately weighted) factor in
     Postal Service promotion decisions. She offers no evidence
     that King’s performance evaluations were inferior to hers.
     Accordingly, the discrepancy in qualifications, if any, does
     not “bear the burden” of showing pretext that masked
     unlawful discrimination.


                                  3
 1   [2] Diello claims that she was not promoted in retaliation
 2   for prior complaints she filed with the Equal Employment
 3   Opportunity Commission (EEOC). A prima facie case of
 4   retaliation under Title VII requires a showing of: (1)
 5   “participation in a protected activity known to the
 6   defendant”; (2) “an employment action disadvantaging the
 7   plaintiff”; and (3) “a causal connection between the
 8   protected activity and the adverse employment action.”
 9   Richardson v. Comm’n on Human Rights & Opportunities, 532
10   F.3d 114, 123 (2d Cir. 2008) (internal quotation marks
11   omitted).
12
13        Diello fails to show the requisite “causal connection”
14   for her claim. She offers no evidence, direct or indirect,
15   save for alleging that at least one decisionmaker knew of
16   her prior EEOC activities. The seven-year lag between
17   Diello’s previous EEOC complaint and the promotion
18   decision--over four times longer than the twenty-month
19   period that was deemed insufficient in Clark County School
20   District v. Breeden, 532 U.S. 268, 273 (2001)--prevents
21   Diello from establishing a prima facie case of retaliation.
22   (Any inference of retaliation is further weakened because
23   Diello was promoted at least once during the seven-year
24   period.)
25
26        We have considered all of Diello’s contentions on this
27   appeal and have found them to be without merit.
28   Accordingly, the judgment of the district court is hereby
29   AFFIRMED.
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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