Reichert v. Perdue ( 2019 )

18‐2452‐cv
Reichert v. Perdue
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 16th day of September, two thousand nineteen.
PRESENT: RICHARD C. WESLEY,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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MELISSA REICHERT,
Plaintiff‐Appellant,
v. 18‐2452‐cv
SONNY PERDUE, Secretary, United States
Department of Agriculture,
Defendant-Appellee.*
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FOR PLAINTIFF‐APPELLANT: STEPHEN BERGSTEIN, Bergstein & Ullrich,
LLP, New Paltz, New York.
FOR DEFENDANT‐APPELLEE: BENJAMIN WEATHERS‐LOWIN, Assistant
United States Attorney (Gregory L. Waples,
* The Clerk of the Court is respectfully requested to amend the official caption to the above.
Assistant United States Attorney, on the brief)
for Christina E. Nolan, United States Attorney
for the District of Vermont, Burlington,
Vermont.
Appeal from the United States District Court for the District of Vermont
(Sessions, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐Appellant Melissa Reichert appeals the district courtʹs July 24,
2018 judgment dismissing her claims against defendant‐appellee Sonny Perdue,
Secretary, United States Department of Agriculture (the ʺUSDAʺ), for discrimination
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(ʺTitle VIIʺ), and the Age Discrimination in Employment Act of 1976 (the ʺADEAʺ), 29
U.S.C. § 621 et seq. The district court explained its reasoning in a memorandum and
order entered the same day, granting the USDAʹs motion for summary judgment. We
assume the partiesʹ familiarity with the underlying facts, procedural history, and issues
on appeal.
Reichert contends that she was reassigned from her position as a Forest
Planner in the United States Forest Service (the ʺForest Serviceʺ) on the basis of her
gender and age. On appeal, she contends that the district court erred in granting
summary judgment because the record established a prima facie case of discrimination
and the USDAʹs proffered explanation for the reassignment was pretextual. Reichert
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does not appeal the district courtʹs dismissal of her age and sex discrimination claims
based on her non‐selection for a promotion or her retaliation claims.
Construed in the light most favorable to Reichert, the evidence before the
district court established the following: Reichert has been a Forest Service employee
since 2001 and was stationed for most of that time on the Green Mountain and Finger
Lakes National Forests (the ʺGMFLNFʺ), two separate national forests located in
southwestern and central Vermont and western New York that are administered
together. From approximately February 2001 to February 2014, Reichert held the
position of Forest Planner. Forest Planner functions included the development and
oversight of revised land and resource management plans. In 2009, Reichert applied for
the position of Recreation Program Manager, but was not selected. The following year,
Reichert sought and completed a 120‐day assignment as Acting Recreation Program
Manager. The Forest Planner position was eliminated as part of a workforce
restructuring effort of the GMFLNF that was implemented in or about 2013 (the
ʺReorganizationʺ). Human Resources subsequently reassigned Reichert to the position
of Recreation Program Manager. Recreation Program Manager functions include
formulation of policies, practices, and procedures for Forest Service recreation
programs.
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On June 12, 2015, Reichert filed this complaint, alleging the USDA
discriminated and retaliated against her under Title VII and the ADEA. After the
district court granted the USDAʹs motion for summary judgment, this appeal followed.
ʺWe review de novo the district courtʹs grant of summary judgment,
construing the evidence in the light most favorable to the non‐moving party and
drawing all reasonable inferences in her favor.ʺ Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary judgment is appropriate only when
ʺthere is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a).
We analyze Reichertʹs Title VII and ADEA discrimination claims under
the three‐step McDonnell Douglas burden‐shifting framework. See Terry v. Ashcroft, 336
F.3d 128, 138 (2d Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). To establish a prima facie case of sex or age discrimination, an employee must
show that (1) she belongs to a protected class or age group, (2) she was qualified for her
position, (3) her employer took adverse action against her, and (4) the adverse action
occurred in circumstances giving rise to an inference of discrimination. See id. at 137‐38.
Once an employee establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non‐discriminatory reason for its actions. See id. at 138. If the
employer does so, the burden then shifts back to the employee to show that the
employerʹs explanation is a pretext for discrimination. See id. The employee must thus
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show both that there was a pretext and that the pretext was intended to mask an illegal
or discriminatory motive. See Fisher v. Vassar Coll., 114 F.3d 1332, 1337‐38 (2d Cir. 1997)
(en banc) (observing that pretext may mask an unsavory, but not illegal, motivation
such as ʺback‐scratching, log‐rolling, horse‐trading, institutional politics, envy,
nepotism, spite, or personal hostilityʺ). ʺ[T]o defeat summary judgment . . . the
[employeeʹs] admissible evidence must show circumstances that would be sufficient to
permit a rational finder of fact to infer that the [employerʹs] employment decision was
more likely than not based in whole or in part on discrimination.ʺ1 Kirkland v.
Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (per curiam) (internal quotation marks
omitted) (second and third brackets in original).
We need not decide whether Reichertʹs reassignment was an adverse
employment action because, even assuming that Reichert presented sufficient evidence
to establish a prima facie case of discrimination, the USDA offered ample evidence of a
legitimate, non‐discriminatory basis for Reichertʹs reassignment, and Reichert failed to
demonstrate a triable issue of fact as to whether the explanation was a pretext for sex or
age discrimination.
1 In the ADEA context, unlike in the Title VII context, a plaintiff must prove ʺthat age was the
ʹbut‐forʹ cause of the challenged adverse employment action and not just a contributing or
motivating factor.ʺ Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (internal
quotation marks omitted).
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The record contains substantial evidence that the Forest Service
experienced budget declines and rising fixed costs for several years leading up to the
Reorganization of the GMFLNF. In 2011, the Forest Service projected budget cuts
beginning in 2011 and continuing with increasing severity through 2015. In light of
these projected cuts, the Forest Supervisor initiated the Reorganization with the
approval of the Regional Forester. After extensive analysis of workforce needs, the
Forest Leadership Team identified eleven positions to eliminate on the GMLFNF, five of
which were occupied, including Reichertʹs Forest Planner position. Reichert presented
no concrete evidence to suggest that the Reorganization was not undertaken for
budgetary reasons. On this record, no reasonable jury could find that the economic
reasons cited by the USDA to support the need for the Reorganization are pretextual.
Moreover, Reichert presents no evidence of age discrimination and
virtually no evidence of gender discrimination. The only facts that support a gender
discrimination claim are that a Civil Rights Impact Analysis (the ʺCRIAʺ) indicated that
the Reorganization would have a greater impact on women than men because most of
the directly affected employees held positions organized within the Public Services Staff
Area. It is undisputed, however, that the Public Services Staff Area was 80 percent
women, and indeed most of the affected employees were women. The CRIA noted that
these impacts would be alleviated by the ability of Human Resources officials to
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reassign affected employees into vacant Forest Service positions, and all affected
employees were successfully reassigned.
The record shows that Reichert was reassigned to the position of
Recreation Program Manager by a Human Resources specialist who determined that
the position directly matched the ʺpay plan, series, grade and comp[etitive] levelʺ of
Reichertʹs Forest Planner position. App. at 559. Reichert unsuccessfully applied for the
Recreation Program Manager position in 2009, completed a 120‐day detail as the Acting
Recreation Program Manager of the GMFLNF in 2010, and explained during her
deposition that she felt the Recreation Program Manager position was an ʺidealʺ
position for someone in her landscape architect job series. App. at 461. On this record,
no jury could find that Reichertʹs reassignment was a pretext for discrimination on the
basis of her age or gender.
Reichert argues that the Forest Serviceʹs rationalizations for the
Reorganization are ʺsuspect.ʺ Appellantʹs Br. at 22. Assuming Reichert could
demonstrate that her reassignment was pretextual, however, she must also demonstrate
that the ultimate reason for the reassignment was discrimination on the basis of her age
or sex. In the absence of evidence that these decisions were motivated by age or sex
discrimination, we will not ʺsit as a super‐personnel department that reexamines [the
Forest Serviceʹs] judgments.ʺ Chen v. City Univ. of N.Y., 805 F.3d 59, 73 (2d Cir. 2015)
(internal quotation marks and citation omitted). Reichert has not identified sufficient
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evidence to permit a jury to find pretext or, assuming there was pretext, that any pretext
was to mask discrimination. See McDonnell Douglas, 411 U.S. at 803‐05; see also Bickerstaff
v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) (explaining that ʺfeelings and perceptions
of being discriminated against are not evidence of discriminationʺ) (internal quotation
marks and brackets omitted)).
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We have considered Reichertʹs remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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