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Rebecca Attard v. City of New York


December 15, 2011


Appeal from a judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge).


Attard v. City of New York


Rulings by summary order do not have precedential effect. Citation to a summary order filed 7 on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 8 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, 9 a party must cite either the Federal Appendix or an electronic database (with the notation "summary 10 order"). A party citing a summary order must serve a copy of it on any party not represented by 11 counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel 14 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15th day 15 of December, two thousand and eleven.



14 Plaintiff-Appellant Rebecca Attard ("Attard") appeals from the September 30, 2010 order of the 15 District Court granting summary judgment to defendant-appellee New York City Department of 16 Education (the "Department")*fn1 and dismissing her employment discrimination claims under the Age 17 Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the New York City 18 Human Rights Law, N.Y.C. Admin. Code § 8-107(1)(a). We assume the parties' familiarity with the 19 underlying facts, the procedural history of the case, and the issues on appeal.

"We review de novo the district court's grant of summary judgment, drawing all factual inferences 22 in favor of the non-moving party." See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d 23 Cir. 2008). "Summary judgment is proper only when, construing the evidence in the light most 24 favorable to the non-movant, 'there is no genuine dispute as to any material fact and the movant is 25 entitled to judgment as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting 26 Fed. R. Civ. P. 56(a)).

Disparate Treatment Claim

We examine discrimination claims brought pursuant to the ADEA under the familiar burden- 31 shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gorzynski v. JetBlue 32 Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010). Under the McDonnell-Douglas framework, the plaintiff 33 bears the initial burden to establish a prima facie case of age discrimination by showing "(1) that she was 34 within the protected age group, (2) that she was qualified for the position, (3) that she experienced 35 adverse employment action, and (4) that the action occurred under circumstances giving rise to an 36 inference of discrimination." Id. at 107; see also 29 U.S.C. § 631(a) (limiting the application of the ADEA 1 to individuals who are at least 40 years old). If the plaintiff succeeds in making out a prima facie case, 2 the burden shifts to the employer to articulate a "legitimate, nondiscriminatory reason" for the 3 employment action. McDonnell Douglas, 411 U.S. at 802. Upon the employer's proffer of such a reason, 4 the presumption of discrimination "drops from the picture" and the plaintiff must come forward with 5 evidence that the proffered reason is a mere pretext for discrimination. Weinstock v. Columbia Univ., 224 6 F.3d 33, 42 (2d Cir. 2000). In order to satisfy her burden at the final stage, the plaintiff must prove, by 7 a preponderance of the evidence, that age discrimination was the "but-for" cause of the challenged 8 adverse action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).

On appeal, Attard argues that the District Court erred in granting summary judgment in favor 11 of the Department on her disparate treatment claim by "skip[ping] over the prima facie case" and 12 according undue weight to the adverse arbitration decision that resulted in her dismissal. Both of these 13 arguments are without merit.

With respect to the prima facie case, the District Court held that "[b]ecause the Department 16 of Education claims that it lawfully terminated Attard for insubordination and incompetence, I need not 17 decide whether she has made a prima facie case and instead may proceed directly to the ultimate 18 inquiry." In effect, the District Court assumed arguendo that Attard had succeeded in making out a prima 19 facie case of discrimination, an approach we have implicitly endorsed. See, e.g., Graves v. Finch Pruyn & 20 Co., 457 F.3d 181, 188 (2d Cir. 2006). To do so here was not error.

With respect to the effect of an arbitration decision in an employment discrimination action, it 23 is well established that an "arbitral decision may be admitted as evidence and accorded such weight as 24 the court deems appropriate." Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). Where a decision 25 by an independent arbitrator "follows an evidentiary hearing and is based on substantial evidence," the 26 plaintiff "must present strong evidence that the decision was wrong as a matter of fact--e.g. new 27 evidence not before the tribunal--or that the impartiality of the proceeding was somehow 28 compromised" in order to survive a motion for summary judgment. Collins v. N.Y.C. Transit Auth., 305 29 F.3d 113, 119 (2d Cir. 2002). We decline Attard's invitation to revisit the law of the Circuit on this 30 subject.

Contrary to Attard's assertion, the District Court did not "beg[in] and end[]" its analysis with 33 the adverse arbitration decision. Rather, the District Court surveyed the evidence of discriminatory 34 motive, including the critical comments of her supervisor and the statistical data that Attard cited to 35 bolster her age discrimination claim. Although the District Court did not couch its analysis in the 36 language of "pretext," it is clear that the District Court considered the evidence of a "discriminatory 37 state of mind," Special App'x 11, without which there could be no finding of pretext under the final 38 McDonnell-Douglas prong. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("[A] reason cannot 1 be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that 2 discrimination was the real reason." (emphasis omitted)). Substantially for the reasons stated by the 3 District Court, we agree that Attard has failed to adduce sufficient evidence to support the conclusion 4 that age discrimination was the "but-for" cause of the Department's decision to terminate her 5 employment.

Disparate Impact Claim

In order to establish a prima facie case of disparate impact, a plaintiff must show "(1) the 10 occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate 11 impact on persons of a particular type produced by the defendant's facially neutral acts or practices." 12 Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 575 (2d Cir. 2003) (emphasis omitted) (quoting Reg'l 13 Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 52-53 (2d Cir. 2002)).

In this case, even if Attard preserved her disparate impact claim in the EEOC complaint, she 16 failed to identify a facially neutral practice. The "preference" of disciplinary charges "against older 17 teachers" is not a neutral practice, but rather intentional discrimination. Cruz v. Coach Stores, Inc., 202 18 F.3d 560, 572-73 (2d Cir. 2000) (plaintiff failed to establish a "facially neutral" policy where she 19 complained that "because . . . only Hispanic employees have been terminated under the no-assault rule, 20 the rule ha[d] a disparate impact on minority employees" (internal quotation marks omitted)). Because 21 Attard failed to identify a facially neutral practice, she cannot establish a prima facie case of disparate 22 impact. Accordingly, we conclude that the District Court did not err in dismissing Attard's disparate 23 impact claim.

Upon a review of the record and the arguments of counsel, we reject Attard's remaining 26 arguments as lacking in merit.


We reject all of Attard's claims on appeal. Accordingly, the judgment of the District Court is AFFIRMED.


Catherine O'Hagan Wolfe, Clerk of Court

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