     No. 09-4531-cv
     Barney v. Con Edison


 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DO CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATIO N
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 9 th day of September, two thousand ten.
17
18   PRESENT:               JOSEPH M. McLAUGHLIN,
19                          GERARD E. LYNCH
20                                         Circuit Judges,
21                          WILLIAM K. SESSIONS,
22                                         District Judge.*
23
24   ------------------------------------------------------------------
25
26   DOROTHY BARNEY,
27                                            Plaintiff-Appellant,
28
29                               v.                                           No. 09-4531-cv
30
31   CONSOLIDATED EDISON COMPANY OF
32   NEW YORK,
33                          Defendant-Appellee.
34
35   --------------------------------------------------------------------
36
37   FOR APPELLANT:                    STEPHEN T. MITCHELL, New York, New York.**



               *
              The Honorable William K. Sessions III, Chief Judge, United States District Court
     for the District of Vermont, sitting by designation.
               **
               Stephen T. Mitchell resigned from the New York State Bar in February 2010, after
     filing the opening brief in this case, and was removed from the roll of attorneys in July. With
 1
 2   FOR APPELLEE:                BARBARA JANE CAREY, (Jonathan A. Fields and Michele
 3                                Molfetta, on the brief), Consolidated Edison Company of
 4                                New York, Inc., New York, New York.
 5
 6          Appeal from the United States District Court for the Eastern District of New York

 7   (David Trager, Judge).

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

 9   DECREED that the judgment of the district court is AFFIRMED.

10          Appellant Dorothy Barney appeals from a judgment of the United States District Court

11   for the Eastern District of New York (Trager, J.) granting Appellee’s motion for summary

12   judgment and dismissing her claim for retaliation in violation of Title VII of the Civil Rights

13   Act of 1964, 42 U.S.C. § 2000e et seq. We assume the parties’ familiarity with the facts,

14   proceedings below, and specification of appellate issues, and hold as follows.

15          This Court reviews orders granting summary judgment de novo and determines

16   whether the district court properly concluded there was no genuine issue as to any material

17   fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna

18   Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir. 1995). “Where the record taken as a whole could

19   not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for

20   trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

21   quotation marks omitted).

22          We analyze Barney’s retaliation claim using the burden-shifting approach of



     his client’s support, he moved for and was granted permission to appear at oral argument on
     his client’s behalf.

                                                    2
 1   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the plaintiff presents at least

 2   a minimal amount of evidence to support the elements of a prima facie retaliation claim, the

 3   burden shifts to the defendant to proffer a legitimate non-retaliatory reason for any adverse

 4   employment action. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552-53 (2d Cir. 2010).

 5   If the defendant satisfies this burden, the plaintiff “must, in order to avoid summary

 6   judgment, point to evidence sufficient to permit an inference that the employer’s proffered

 7   non-retaliatory reason is pretextual and that retaliation was a substantial reason for the

 8   adverse employment action.” Id. at 552-53 (internal quotation marks omitted).

 9          Having reviewed Barney’s arguments on appeal and the record of proceedings below,

10   we affirm for substantially the same reasons the district court stated in its thorough opinion.

11   See Barney v. Consolidated Edison Co. of N.Y., __ F. Supp. 2d. __, No. 99 Civ. 823 (DGT),

12   2009 WL 6551494 (E.D.N.Y. Oct. 1, 2009). We therefore briefly address only Barney’s

13   specific arguments on appeal, all of which we find unpersuasive.

14          An independent internal audit investigation found that Barney had, inter alia,

15   intentionally falsified her overtime data, failed to follow company procedures for reporting

16   sick days, failed to cooperate with the investigation into her conduct by making misleading

17   statements, and tried to conceal her actions by altering timekeeping records. Based on these

18   findings, Con Edison, which had an inflexible policy of terminating employees who stole

19   from the company, terminated Barney. Barney principally argues that her superiors set her

20   up for termination by “either maliciously approv[ing] entries she mistakenly made or

21   creat[ing] the entries themselves without her knowledge.” The district court found that


                                                   3
 1   Barney offered “no evidence” to support this theory. Barney, 2009 WL 6551494, at *16.

 2   Barney now argues that the district court failed to consider evidence supporting her theory.

 3   She identifies no specific evidence, however, that the district court overlooked. Indeed, in

 4   her reply Barney acknowledges that “[t]here is no direct evidence that [her superiors] knew

 5   of the inaccuracy of [Barney’s timekeeping] submissions.”

 6          Barney argues more generally that the “district court ignored evidence of retaliatory

 7   animosity directed towards [her].” We reject any argument based on her supervisor Michael

 8   Saladino’s alleged retaliatiory animosity, because Saladino, who was away on vacation when

 9   Barney was terminated, was not involved in the decision to fire Barney. As for the executive

10   who decided to terminate her, Robert Donohue, Barney urges us to infer that Donohue had

11   a retaliatory animus because she had complained that her 1998 performance review, which

12   Donohue signed, was discriminatory, and therefore to infer further that his articulated non-

13   retaliatory reason for terminating her was pretextual. In the context of this case, these facts

14   are too flimsy to support such an inference. Barney also argues that reasonable jurors could

15   conclude that Donohue “was untruthful about his knowledge of Ms. Barney’s prior

16   complaints of unlawful discrimination in order to advance Con Edison’s legal position.”

17   This claim relates to Donohue’s testimony that he was not aware of Barney’s claims of racial

18   discrimination. Barney says he must have lied about this because he testified that he had read

19   the audit report, which discussed her claims of racial discrimination. Barney’s premise – that

20   Donohue lied – fails. The audit report refers to the fact that “Barney had previously filed an

21   EEO grievance against Saladino when Saladino gave Barney a poor performance appraisal,”


                                                   4
 1   but it does not report that her grievance was based on alleged racial discrimination. In any

 2   event, even if Donohue had known about Barney’s previous complaint, that knowledge (or

 3   Donohue’s attendant lack of credibility) would not, alone, establish pretext.

 4          Next, Barney argues that while she was terminated for entering false overtime data,

 5   Saladino was merely reprimanded for approving that erroneous data. She claims that this

 6   disparate treatment is probative that Con Edison’s articulated non-retaliatory reason for her

 7   termination was pretextual. This argument rests on the premise that Barney was similarly

 8   situated to Saladino, which the district court correctly rejected.

 9          Contrary to Barney’s contention on appeal, the district court did not err by determining

10   as a matter of law that she was not similarly situated to Saladino. “An employee is similarly

11   situated to co-employees if they were (1) subject to the same performance evaluation and

12   discipline standards and (2) engaged in comparable conduct.” Ruiz v. Cnty. of Rockland,

13   609 F.3d 486, 493-94 (2d Cir. 2010) (internal quotation marks omitted). Barney intentionally

14   entered false overtime data in order to receive more pay and then attempted to cover it up;

15   Saladino merely failed to review Barney’s overtime entries correctly, conduct from which

16   Saladino did not stand to benefit. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 (2d Cir.

17   2000) (finding as a matter of law that plaintiff who engaged in a physical fight was not

18   similarly situated to co-workers whose offensive behavior involved words only). On these

19   facts, no reasonable juror could have found Barney similarly situated to Saladino. See Harlen

20   Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (“As a general rule,

21   whether items are similarly situated is a factual issue that should be submitted to the jury.


                                                   5
 1   This rule is not absolute, however, and a court can properly grant summary judgment where

 2   it is clear that no reasonable jury could find the similarly situated prong met.” (internal

 3   citations omitted).)

 4          Barney’s opening brief omitted a number of arguments that failed below, including

 5   the argument that the audit report constituted inadmissible evidence (an argument raised only

 6   in her reply brief). Accordingly, she has waived those arguments on appeal. See JP Morgan

 7   Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005)

 8   (“[A]rguments not made in an appellant’s opening brief are waived even if the appellant

 9   pursued those arguments in the district court or raised them in a reply brief.”). We have

10   considered all of Barney’s properly raised arguments and find them to be without merit.

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

12
13                                      FOR THE COURT:
14                                      Catherine O’Hagan Wolfe, Clerk of Court
15
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