11-4971-cv
Bringley v. Donahoe
                           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 10th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.

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DEBORAH A. BRINGLEY,
                                 Plaintiff-Appellant,

                          v.                                             No. 11-4971-cv

PATRICK R. DONAHOE, POSTMASTER GENERAL,
                                 Defendant-Appellee.*
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APPEARING FOR APPELLANT:                          STEPHEN E. LAPRADE (Christina A. Agola, on
                                                  the brief), Law Firm of Christina A. Agola,
                                                  PLLC, Rochester, New York.




          *
              The Clerk of Court is directed to amend the official caption as shown above.
APPEARING FOR APPELLEE:                   KATHRYN L. SMITH, Assistant United States
                                          Attorney, for William J. Hochul, Jr., United States
                                          Attorney for the Western District of New York,
                                          Rochester, New York.

       Appeal from a judgment of the United States District Court for the Western District

of New York (Charles J. Siragusa, Judge).

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

DECREED that the judgment entered on November 21, 2011, is AFFIRMED.

       Deborah Bringley, a 30-year employee of the United States Postal Service in

Rochester, New York, appeals from an award of summary judgment in favor of defendant

on her claims of gender-based discrimination and retaliation by supervisor Vincent Catapano

in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, see 42

U.S.C. § 2000e et seq. We review an award of summary judgment de novo, construing the

record evidence in the light most favorable to the non-moving party. See El Sayed v. Hilton

Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). We will uphold the award only if the record

reveals “no genuine dispute as to any material fact” and the movant’s entitlement to judgment

as a matter of law. Fed. R. Civ. P. 56(a). In analyzing employment discrimination claims

brought under Title VII, we employ the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm, a conclusion we reach for substantially the same

reasons stated in the district court’s thorough and well-reasoned Decision and Order.

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1.     January 2007 Detail Offers

       Bringley asserts that, in response to her request for a successive Tour 3 detail to the

Mail Processing Unit in January 2007, her supervisors discriminatorily forced her to choose

between accepting that detail on condition that her craft position be posted for bidding by

other union members, as mandated by the operative collective bargaining agreement, or

alternatively accepting a less desirable overnight Tour 1 detail to Maintenance. Bringley

argues that the district court erroneously analyzed this claim as a discriminatory discharge,

rather than a denial-of-promotion, claim. The distinction Bringley draws is of no import,

because, in fact, the district court held that she had failed to raise a triable issue of fact that

her supervisors’ proffered justifications for their responses to her January 2007 requests for

detail assignments were a pretext for discrimination. We agree.

       To support an inference of discrimination with respect to her January 2007 detail

offers, Bringley primarily asserts that, in 2006, Catapano awarded Bringley’s fellow

employee Kevin Dyson a permanent Tour 3 Maintenance Supervisor position for which

Bringley had also applied. However, Bringley’s conclusory contentions that Dyson was “less

senior” and “less qualified” than she was at the time of that decision, Bringley Aff. ¶ 22, J.A.

330, do not raise a triable issue that the justifications for the later January 2007 detail

offers—one of which Catapano had nothing to do with—were a pretext for impermissible

gender-based decisionmaking. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93,

103 (2d Cir. 2001) (“When a plaintiff seeks to prevent summary judgment on the strength


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of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the

entire burden of allowing a reasonable trier of fact to not only conclude the employer’s

explanation was pretextual, but that the pretext served to mask unlawful discrimination.”).

       We agree with the district court that those proffered justifications—i.e., that the

collective bargaining agreement required that Bringley’s position be opened to others if she

performed successive, identical Tour 3 details, and that, otherwise, Bringley should be made

to rotate through a Tour 1 detail per unofficial policy—are legitimate on their face and find

support in the record. To the extent Bringley argues that a Tour 1 “graveyard” detail was

viewed as a form of punishment, the record shows that both fellow employees who were later

granted the promotions she now challenges as discriminatory had previously completed Tour

1 assignments.    The record further shows that Catapano had granted Bringley four

consecutive non-Tour-1 supervisory details spanning August 2005 to January 2007.

Additionally, her contention that the union did not in fact pressure Catapano to open her craft

position to other members should she accept a successive Tour 3 Mail Processing detail is

unsupported by admissible evidence. See Fed. R. Civ. P. 56(c)(2). Thus, the district court

correctly granted summary judgment for defendant on this claim.1




       1
           Because Bringley has adduced insufficient evidence to rebut defendant’s
justifications for the January 2007 detail assignments, we need not reach defendant’s
argument that Bringley, in being offered a choice between supervisory assignments at higher
pay than her permanent position, suffered no materially adverse employment action.

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2.     Denial-of-Promotion Claims

       Bringley asserts that the district court erroneously granted summary judgment on her

claims that, in 2008, she was twice denied promotions to the permanent position of

Supervisor of Maintenance Operations on Tour 3, claims that form the gravamen of her

complaint. Even assuming that the challenged promotion decisions were effectively made

by Catapano because the two female committee members deferred to his choices, summary

judgment was correctly awarded in favor of defendant.

       As the district court recognized, contemporaneous interview summaries prepared by

Catapano stressed the technical qualifications and achievements of the selected males and

stated that Bringley, despite her technical knowledge, exhibited relatively poor interpersonal

skills on the job and became confrontational toward the end of one interview. While

Bringley disputes this account of her interview demeanor, she cannot dispute that, at the time

of her initial interview, she had a “live” Letter of Warning in her file for poor workplace

performance, discipline to which the selection committee referred in making its decision.

Bringley nowhere asserts that the letter’s author, her immediate supervisor, James Fink,

discriminated against her in any way. Further, by Bringley’s own admissions, Catapano had

previously become angry with her for reporting to an unassigned detail and had reason to

question her seriousness in applying for the promotions, as she had also recently applied for

a Postal Service job in Knoxville, Tennessee. Moreover, in denying Bringley’s second

promotion request, Catapano observed that she lacked familiarity with relevant procedures,


                                              5
having been away from the Maintenance Department for a year. While Bringley asserts that

Catapano had refused to allow her to return to Maintenance after she left for a better-paying

position in a different department, she admitted at her deposition that this alleged refusal

forms no part of her claim, and the record contains no competent evidence that such an

opening in Maintenance even existed.

       In light of the evidence as a whole, Bringley’s contentions that she was more qualified

than either candidate are subjective conclusions without evidence that would “reasonably

support[] a finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d 149,

154 (2d Cir. 2000). Statements offered by Bringley that one of the candidates habitually

harassed female co-workers, or that Catapano was commonly known to engage younger

female employees in flirtation, even if admissible, are not probative of unlawful gender

discrimination in the challenged promotions. See Shumway v. United Parcel Serv., Inc., 118

F.3d 60, 64–65 (2d Cir. 1997) (characterizing assertions of “common knowledge” about

fraternization between male supervisors and lower-ranking female employees to be “little

more than conclusory statements of no probative value”). In fact, Bringley concedes that

Catapano aided a younger female maintenance employee, Rebecca Nevins, in ascending to

the position of postmaster. During the same time period, the committee headed by Catapano

selected a woman, Molly Knights, for the position of Supervisor of Maintenance Operations

on Tour 1. Bringley refused to apply for this or any Tour 1 position.

       Accordingly, summary judgment was proper on Bringley’s failure-to-promote claims.


                                              6
3.     Retaliation Claims

       Finally, Bringley asserts that the district court erred in granting summary judgment

on her claims of retaliation based on her filing of EEOC complaints and civil lawsuits

alleging discrimination by Catapano between April 2007 and February 2009. Claims of Title

VII retaliation “are also analyzed under the McDonnell Douglas burden-shifting test,”

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010), with the standard for

retaliation “tied to the challenged retaliatory act, not the underlying conduct that forms the

basis of the Title VII complaint,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

69 (2006). Here, the district court properly concluded that Bringley had failed to raise a

triable issue of fact on her claims of unlawful retaliation by Catapano, because neither

Catapano’s temporary deactivation of Bringley’s security badge after she left the

Maintenance Department in 2007 nor the contested 2008 promotion decisions adequately

evince an unlawful retaliatory motive. Nothing in the record supports a contrary conclusion.

       The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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