Filed: May 15, 2019
Latest Update: Mar. 03, 2020
Summary: 18-1912 Lomonoco v. Saint Anne Institute 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 ASUMM
Summary: 18-1912 Lomonoco v. Saint Anne Institute 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 ASUMMA..
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18‐1912
Lomonoco v. Saint Anne Institute
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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 15th day of May, two thousand
4 nineteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 Circuit Judges,
9 JESSE M. FURMAN,*
10 District Judge.
11
12 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
13 TERI LOMONOCO
14 Plaintiff‐Appellant,
15
16 ‐v.‐ 18‐1912
17
* Judge Jesse M. Furman, of the United States District Court for the Southern District of
New York, sitting by designation.
1
1 SAINT ANNE INSTITUTE,
2 Defendant‐Appellee.
3
4 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
5
6 FOR PLAINTIFF‐APPELLANT: Kevin A. Luibrand, Luibrand Law Firm
7 PLLC, Latham, NY.
8
9 FOR DEFENDANT‐APPELLEE: Scott P. Quesnel, Girvin & Ferlazzo, P.C.,
10 Albany, NY.
11
12 Appeal from a judgment of the United States District Court for the
13 Northern District of New York (Suddaby, C.J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
15 ADJUDGED AND DECREED that the judgment of the district court be
16 AFFIRMED.
17 Teri Lomonoco appeals from the judgment of the United States District
18 Court for the Northern District of New York (Suddaby, C.J.) granting Saint Anne
19 Institute’s motion for summary judgment and dismissing Lomonoco’s claim
20 under the Age Discrimination in Employment Act (the “ADEA”). We assume
21 the parties’ familiarity with the underlying facts, procedural history, and issues
22 on appeal.
23 We review de novo a grant of summary judgment. D’Amico v. City of
24 New York, 132 F.3d 145, 149 (2d Cir. 1998). Summary judgment is appropriate
25 when “the movant shows that there is no genuine dispute as to any material fact
26 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
27 see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
28 Pursuant to the ADEA, it is unlawful for an employer to “fail or refuse to
29 hire or to discharge any individual or otherwise discriminate against any
30 individual with respect to his compensation, terms, conditions, or privileges of
31 employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To
2
1 establish a prima facie case of age discrimination, Lomonoco must show “(1) that
2 she was within the protected age group, (2) that she was qualified for the
3 position, (3) that she experienced adverse employment action, and (4) that such
4 action occurred under circumstances giving rise to an inference of
5 discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir.
6 2010). The district court concluded that Lomonoco failed to establish an
7 inference of age discrimination. We agree.
8 The required showing is that the employer treated the plaintiff “less
9 favorably than a similarly situated employee outside of the protected group.”
10 Raspardo v. Carlone,
770 F.3d 97, 126 (2d Cir. 2014) (internal quotation marks
11 omitted). A plaintiff may make that showing “in a variety of ways.”
12 Chertkova v. Connecticut Gen. Life Ins. Co.,
92 F.3d 81, 91 (2d Cir. 1996). For
13 example, “[g]enerally, a plaintiff’s replacement by a significantly younger person
14 is evidence of age discrimination.” Carlton v. Mystic Transp., Inc.,
202 F.3d 129,
15 135 (2d Cir. 2000). However, no inference of age discrimination can be drawn
16 “from the replacement of one worker with another worker insignificantly
17 younger.” O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313 (1996).
18 Lomonoco argues that she was removed from teaching, primarily assigned
19 to photocopy binders, and replaced by two younger coworkers: Kristina Savoie,
20 25, and Emily Cody, 29. However, Lomonoco’s teaching responsibilities were
21 reassigned to multiple teachers, most of them older. Of the 12 classes Lomonoco
22 identified for comparator purposes, Cody and Savoie combined were assigned to
23 teach only two. Eight of the twelve classes were reassigned to teachers who
24 were older than Lomonoco. (Only three of the twelve classes were reassigned to
25 teachers who were considerably younger than Lomonoco.) The reassignment of
26 Lomonoco’s classes fails to support an inference of age discrimination.1
1 The district court, in tallying the number of “young” teachers to whom Lomonoco’s
classes were reassigned, suggested incorrectly that her coworkers who were above the
age of 40 (and thus fell in the ADEA‐protected class) could not serve as comparators
whose differential treatment may raise an inference of discrimination. See Lomonoco
v. Saint Anne Institute, No. 1:15‐CV‐1163, 2018 WL 2324051, at *15 (N.D.N.Y. May 22,
2018) (“[N]umerous other teachers assigned to teach during the 2014‐2015 school year
3
1 We have considered Lomonoco’s remaining arguments and find them to
2 be without merit. For the foregoing reasons, we AFFIRM the judgment of the
3 district court.
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
were above the age of 40. . . . Given the fact that the majority of the teachers who were
assigned Plaintiff’s former classes were within the protected age ground under the
ADEA, Plaintiff’s focus on the assignments of the two youngest teachers does not, by
itself, give rise to an inference of discrimination based on age.”). The Supreme Court
squarely rejected the district court’s reasoning in O’Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308 (1996), which held that, because the ADEA protects those in the
protected class against “age discrimination (as opposed to ‘40 or over’ discrimination),”
a plaintiff’s coworker who is also within the protect class may serve as a comparator
provided that they are not “insignificantly younger” than the plaintiff. Id. at 312‐13;
see also Tarshis v. Riese Org.,
211 F.3d 30 (2d Cir. 2000), abrogated on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (holding with regard to a 67‐year‐old
plaintiff and a 59‐year‐old comparator that “[a] difference of eight years between the
age of the person discharged and his replacement . . . is not insignificant”). In any
event, even accounting for Lomonoco’s 39‐year old, 47‐year‐old, and (perhaps) 53‐year‐
old coworkers as potential comparators does not change the outcome because, as noted,
two‐thirds of Lomonoco’s classes went to teachers who were older than she.
4
