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Diello v. Potter

March 16, 2010


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff Nancy Diello ("Diello") brings this action against her employer, John E. Potter, Postmaster General of the United States Postal Service ("USPS"), alleging that the USPS denied her a promotion on the basis of age and/or retaliated against her for filing administrative complaints, all in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA"). Discovery is now completed and the USPS moves for summary judgment dismissing the Diello's claims (Dkt. #15). For the reasons that follow, the USPS's motion for summary judgment is granted, and the complaint is dismissed.


Plaintiff was initially hired by the USPS in 1979. Between 1996 and 2000, Diello filed five separate EEOC charges against the USPS. On April 2, 2005, Diello was promoted to the position of Postmaster, level EAS-18, at the Newfield, New York Post Office.

On February 27, 2007, a vacancy announcement was posted for the position of Postmaster, EAS-20, in the Corning, New York Post Office. Diello, then age forty-nine, applied for the position, as did Postmaster Thomas King (age 36, level EAS-16), Postmaster Daniel Leonard (approximately age 45, level EAS-18), and Postmaster Eileen Bernitt (age 54, level EAS-18).

The individual responsible for filling the Corning Postmaster position was Joseph Kusiak, Manager of Post Office Operations for USPS's Western New York District. Kusiak was 54 years old at the time. Kusiak testified that after reviewing the USPS selection guidelines and considering each of the applicants' interviews, application materials, experience and recent performance, he determined that King was the applicant who was best qualified for the position. Diello denies that King was the best applicant, and contends that her superior number of years of experience with the USPS (28 years, compared with King's thirteen years) should have been determinative.

After pursuing a complaint of age-related discrimination arising out of her non-promotion with the Equal Employment Opportunity Commission ("EEOC") and otherwise exhausting her administrative remedies, Diello timely filed the instant action on April 11, 2008.


I. Summary Judgment in Discrimination Cases

Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Although courts are appropriately wary of granting summary judgment in cases where motive, intent or state of mind are at issue, a common component of discrimination actions, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir. 1989), "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985).

Diello's claims of employment discrimination are subject to the burden-shifting analysis articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Diello must establish a prima facie case of discrimination by demonstrating: (1) membership in a protected class; (2) satisfactory job performance; and (3) an adverse employment action, occurring under (4) circumstances giving rise to an inference of discrimination. See Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002). In the age discrimination context, such circumstances include those where a plaintiff was "fired in favor of the retention of younger persons or was fired and replaced by younger persons." Pirone v. Home Ins. Co., 559 F. Supp. 306, 309-310 (S.D.N.Y.), aff'd, 742 F.2d 1430 (2d Cir. 1983). Once Diello has established a prima facie case of discrimination, the burden shifts to the USPS to articulate a legitimate, nondiscriminatory reason for its actions. See James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The burden then returns to Diello, to supply evidence that the legitimate, nondiscriminatory reason offered by the USPS is a pretext, and that the true reason for its actions was discriminatory. See St. Mary's Honor Center, 509 U.S. 502, 508 (1993).

While granting Diello the liberal interpretation and favorable inferences due to her as the non-movant, I find that she was failed to establish a prima facie case of retaliation, and with respect to her discrimination and retaliation claims, cannot rebut the USPS's legitimate, nondiscriminatory reason for selecting a different candidate for the Corning Postmaster position.

II. Diello's "Discriminatory Failure to Promote" Claim

A plaintiff alleging an adverse employment action based on age-based discrimination must initially show: (1) that she is within the protected class; (2) that she is qualified for the position for which she applied; (3) that she was not awarded the position; and (4) that a younger individual was instead selected. See generally Owens v. New York City Housing Auth., 934 F.2d 405, 408-409 (2d Cir. 1991). Once the prima facie showing is made, the employer bears the burden of demonstrating legitimate non-discriminatory reasons for the discharge. If the employer is able to demonstrate such reasons, the burden again shifts to the employee to show that the articulated reason is pretextual. I find that Diello has sufficiently demonstrated that she was qualified for the Postmaster position, and that another, ...

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