10-1710-cv
Witkowich v. U.S. Marshals Serv., et al.


                                   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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27th day of May, two thousand eleven.

PRESENT: AMALYA L. KEARSE,
         GERARD E. LYNCH,
         J. CLIFFORD WALLACE,*
                        Circuit Judges.

–––––––––––––––––––––––––––––––––––––––––––––

MICHAEL F. WITKOWICH,
                                               Plaintiff-Appellant,

                                 v.                                      No. 10-1710-cv

UNITED STATES MARSHALS SERVICE, JOHN F. CLARK, as Director of the United
States Marshals Service, ERIC H. HOLDER, JR., as Attorney General of the United
States,
                                     Defendants-Appellees.**

–––––––––––––––––––––––––––––––––––––––––––––


           *
        The Honorable J. Clifford Wallace, of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
           **
          Pursuant to Federal Rule of Appellate Procedure 43(c)(2), John F. Clark, the
Director of the United States Marshals Service, and Eric H. Holder, Jr., the Attorney General
of the United States, are automatically substituted as defendants herein for their predecessors.
The Clerk of Court is respectfully directed to amend the official caption in this case to
conform to the listing of the parties above.
FOR APPELLANT:                 Rory J. Bellantoni (Jonathan Lovett, on the brief), Lovett &
                               Bellantoni, LLP, Hawthorne, NY.

FOR APPELLEES:                 Daniel P. Filor, Assistant United States Attorney (David S.
                               Jones, Ross E. Morrison, Assistant United States Attorneys,
                               on the brief), for Preet Bharara, United States Attorney for the
                               Southern District of New York, New York, NY.

          Appeal from the United States District Court for the Southern District of New York

(George B. Daniels, Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Michael F. Witkowich appeals from a judgment of the district court

dismissing his amended complaint and granting summary judgment in favor of defendants-

appellees the United States Marshals Service (“USMS”), USMS Director John F. Clark, and

United States Attorney General Eric H. Holder, Jr. We assume the parties’ familiarity with

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

          In 2005, Witkowich, a longtime USMS employee, filed an EEOC charge and brought

a discrimination suit against defendants under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621-34. In his original complaint, he alleged that USMS had

discriminated against him on the basis of his age, including by denying him promotions he

deserved. Defendants moved for summary judgment, and the district court (the late William

C. Conner, J.) granted their motion with respect to Witkowich’s discrimination claim.

Witkowich v. Gonzales, 541 F. Supp. 2d 572, 589-90 (S.D.N.Y. 2008). However, the court

sua sponte granted Witkowich leave to amend the complaint to assert a retaliation claim. Id.

at 590.

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       The district court concluded that Witkowich’s allegations of discrimination were

“simply too vague, conclusory, unsupported or otherwise legally insufficient” to rebut

defendants’ legitimate, nondiscriminatory justifications for not promoting plaintiff. Id. at

589. Although Witkowich cited a number of events that he claimed amounted to a “pattern

and practice” of discrimination, the district court held that he had “offered absolutely no

evidence that any of these events were motivated by bias. Plaintiff can not make up in

quantity of allegations for what his case lacks in quality.” Id. at 589-90 (internal quotation

marks omitted). Witkowich does not appeal the grant of summary judgment dismissing his

discrimination claims.

       Witkowich did, however, file an amended complaint, alleging that USMS had

retaliated against him in a number of ways for filing the EEOC charge and discrimination

suit, in violation of the ADEA. See 29 U.S.C. § 633a(a) (barring age discrimination against

federal employees older than age 40); Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008)

(interpreting 29 U.S.C. § 633a(a) as “prohibit[ing] retaliation against a federal employee who

complains of age discrimination”). USMS retaliated against him, Witkowich alleged, “with

the intent of denying [him] further career advancement opportunities, depriving [him] of

benefits to which he was otherwise entitled, demeaning [him] in the workplace and with his

peers, and forcing [him] to retire early,” as he had “no reasonable alternative” but to leave

the job.

       Defendants moved for summary judgment on the retaliation claim, arguing, inter alia,

that the actions of which Witkowich complained were not adverse for purposes of the ADEA,


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and that they had legitimate, nonretaliatory justifications for each challenged action. On

March 31, 2010, the district court (George B. Daniels, J.) granted the motion, holding that

(1) Witkowich could not establish a prima facie case of retaliation “because the incidents he

complains of do not constitute adverse actions that would dissuade a reasonable person in

plaintiff’s position from filing a charge of discrimination”; (2) plaintiff could not establish

a prima facie case that his transfers to other assignments were retaliatory, since he could not

show “a sufficient causal connection” between the filing of his complaint and the transfers;

and (3) the government had proffered legitimate reasons for its actions that Witkowich had

failed to rebut. Witkowich v. Holder, No. 05 Civ. 7756, 2010 WL 1328364, at *3-8

(S.D.N.Y. Mar. 31, 2010). The district court therefore granted defendants’ motion for

summary judgment. Id. at *8.

       It is from this judgment that Witkowich appeals. He argues that he made out a prima

facie case of retaliation; that USMS’s proffered reasons for its actions “were merely

pretextual”; that the district court applied an incorrect summary-judgment standard; and that

the district court failed to draw all reasonable factual inferences in his favor, as it was

required to do. Therefore, he asserts, the district court erred in granting USMS’s motion for

summary judgment on his retaliation claim.

       We review a grant of summary judgment de novo, drawing all factual inferences in

favor of the nonmoving party. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300

(2d Cir. 2003). “Summary judgment is appropriate where there are no genuine disputes

concerning any material facts, and where the moving party is entitled to judgment as a matter



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of law.” Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); see also Fed. R. Civ. P.

56(a), (c). We may affirm only “if it appears beyond doubt that the plaintiff can prove no set

of facts in support of [his] claim which would entitle [him] to relief.” Terry v. Ashcroft, 336

F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted; alterations in original).

“[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary

judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

       After having conducted an independent and de novo review of the record, we

conclude that summary judgment was properly granted here, for substantially the same

reasons that the district court gave in its thorough and well-reasoned memorandum and order.

Witkowich fails to make out a prima facie case of retaliation; the allegedly retaliatory acts

of which he complains do not constitute adverse actions under the ADEA, as the acts of

which he complains would not “have dissuaded a reasonable employee in his position from

complaining of unlawful discrimination.” Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,

461 F.3d 199, 209 (2d Cir. 2006), applying standard set by Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 67-71 (2006). Additionally, even assuming arguendo that Witkowich

had made out a prima facie case of retaliation, he failed to proffer evidence from which a

reasonable jury could conclude that the legitimate, nondiscriminatory reasons offered by the

government for its actions were pretexts for unlawful retaliation. See Holt v. KMI-

Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996). Accordingly, the district court correctly

granted defendants’ motion for summary judgment.




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                                   CONCLUSION

      We have considered Witkowich’s other arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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




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