Roncallo v. Sikorsky Aircraft , 447 F. App'x 243 ( 2011 )


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  • 10-4872-cv
    Roncallo v. Sikorsky Aircraft
    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, at 500 Pearl Street, in the City of New York,
    on the 21st day of November, two thousand eleven.
    Present: ROBERT D. SACK,
    ROBERT A. KATZMANN,
    RICHARD C. WESLEY,
    Circuit Judges.
    ____________________________________________________________
    JOHN RONCALLO,
    Plaintiff-Appellant,
    -v-                        No. 10-4872-cv
    SIKORSKY AIRCRAFT,
    Defendant-Appellee.
    ____________________________________________________________
    For Plaintiff-Appellant:               NORMAN A. PATTIS, ESQ., Bethany, Conn.
    For Defendant-Appellee:                ALBERT ZAKARIAN, Day Pitney LLP, Hartford, Conn.
    Appeal from the United States District Court for the District of Connecticut (Kravitz, J.).
    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment of the district court is AFFIRMED.
    Plaintiff-Appellant John Roncallo appeals from an October 22, 2010 judgment of the
    United States District Court for the District of Connecticut (Kravitz, J.) granting summary
    judgment to Defendant-Appellee Sikorsky Aircraft (“Sikorsky”) on Roncallo’s Title VII claims
    and dismissing Roncallo’s state law claims. We assume the parties’ familiarity with the facts
    and procedural history of the case.
    We review a district court’s grant of summary judgment de novo, drawing all factual
    inferences in favor of the non-moving party. Paneccasio v. Unisource Worldwide, Inc., 
    532 F.3d 101
    , 107 (2d Cir. 2008). Summary judgment is appropriate “only if there is no genuine issue as
    to any material fact, and if the moving party is entitled to a judgment as a matter of law.” Allianz
    Ins. Co. v. Lerner, 
    416 F.3d 109
    , 113 (2d Cir. 2005).
    For the first time on appeal, Roncallo argues that the district court ought to have analyzed
    his discrimination claim under the framework set forth in Price Waterhouse v. Hopkins, 
    490 U.S. 228
     (1989).1 “Although we may exercise discretion to consider waived arguments where
    necessary to avoid a manifest injustice,” In re Nortel Networks Corp. Sec. Litig., 
    539 F.3d 129
    ,
    133 (2d Cir. 2008) (per curiam), we conclude that the circumstances of this case, including that
    Roncallo offers no explanation for his failure to raise this argument below, do not warrant such
    an exercise of discretion.
    The district court analyzed Roncallo’s claims under the three-step burden-shifting
    framework set forth in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973), concluding
    1
    Under the Price Waterhouse analysis, “if the plaintiff establishes that a prohibited
    discriminatory factor played a ‘motivating part’ in a challenged employment decision, the
    burden shifts to the employer to prove by a preponderance of the evidence that it would have
    made the same decision anyway.” Raskin v. Wyatt Co., 
    125 F.3d 55
    , 60 (2d Cir. 1997). “This
    burden is greater than the level of proof necessary to make out a McDonnell Douglas prima facie
    case.” De la Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 
    82 F.3d 16
    , 23 (2d Cir.
    1996).
    2
    that, assuming arguendo that he had made out a prima facie case of discrimination, Sikorsky’s
    proffered reason for not filling Job Requisition No. 68047 was legitimate and non-discriminatory
    and that Roncallo had failed to show that the reason was pretexual.
    At step one of the McDonnell Douglas analysis, the plaintiff must establish “a prima
    facie case of discrimination by showing that: ‘1) he belonged to a protected class; 2) he was
    qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse
    employment action occurred under circumstances giving rise to an inference of discriminatory
    intent.’” Mathirampuzha v. Potter, 
    548 F.3d 70
    , 78 (2d Cir. 2008) (quoting Terry v. Ashcroft,
    
    336 F.3d 128
    , 138 (2d Cir. 2003)). “[A]fter a prima facie instance of discrimination has been
    identified, the burden shifts to the employer ‘to articulate some legitimate, nondiscriminatory
    reason for the [action].’” Estate of Hamilton v. City of New York, 
    627 F.3d 50
    , 55 (2d Cir. 2010)
    (per curiam) (quoting McDonnell Douglas, 
    411 U.S. at 802
    ). “If the employer articulates such a
    reason, the plaintiff ‘is given an opportunity to adduce admissible evidence that would be
    sufficient to permit a rational finder of fact to infer that the employer’s proffered reason is
    pretext for an impermissible motivation.’” Vivenzio v. City of Syracuse, 
    611 F.3d 98
    , 106 (2d
    Cir. 2010) (quoting Howley v. Town of Stratford, 
    217 F.3d 141
    , 150 (2d Cir. 2000)). The
    plaintiff should show “both that the [proffered] reason was false, and that discrimination was the
    real reason” for the adverse employment action. St. Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    ,
    515 (1993) (emphasis in original). “The ultimate burden of persuading the trier of fact that the
    defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
    
    Id.
     (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 253 (1981)) (internal quotation
    marks omitted).
    We agree with the district court that, as Roncallo concedes, Sikorsky has satisfied its
    burden at the second step of the analysis. The record supports Sikorsky’s explanation that Job
    3
    Requisition No. 68047, an “L4” management position, was closed without being filled because
    Roncallo’s section was already over its allotment of L4s and Sikorsky was trying to reduce the
    number of these positions. We conclude that Roncallo has failed to adduce sufficient evidence
    from which a jury could find that this explanation was a pretext.
    Roncallo also contends that the district court erred in concluding that he had failed to
    make out a prima facie case of retaliation. A retaliation prima facie case requires Roncallo to
    “show (1) that []he participated in an activity protected by Title VII, (2) that [his] participation
    was known to [his] employer, (3) that [his] employer thereafter subjected [him] to a materially
    adverse employment action, and (4) that there was a causal connection between the protected
    activity and the adverse employment action.” Kaytor v. Elec. Boat Corp., 
    609 F.3d 537
    , 552 (2d
    Cir. 2010). The determination of whether an employment action is “materially adverse” is an
    objective one; such an action is one that “well might have dissuaded a reasonable worker from
    making or supporting a charge of discrimination.” 
    Id. at 555
     (quoting Burlington N. & Santa Fe
    Ry. Co. v. White, 
    548 U.S. 53
    , 68 (2006)) (internal quotation marks omitted). We conclude that,
    contrary to Roncallo’s argument, a temporary move from an office to a cubicle, consistent with
    Sikorsky’s office allocation policy with respect to L5s and L4s,does not constitute a materially
    adverse employment action.
    We have considered Roncallo’s remaining arguments and find them to be without merit.
    Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
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