Miсhael F. WITKOWICH, Plaintiff-Appellant, v. UNITED STATES MARSHALS SERVICE, John F. Clark, as Director of the United States Marshals Service, Eric H. Holder, Jr., as Attorney General оf the United States, Defendants-Appellees.
No. 10-1710-cv.
United States Court of Appeals, Second Circuit.
May 27, 2011.
20
Present: AMALYA L. KEARSE, GERARD E. LYNCH, J. CLIFFORD WALLACE, Circuit Judges.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), John F. Clark, the Director of the United States Marshals Service, and Eric H. Holder, Jr., the Attorney General of the United States, are automatically substituted as defendants herein for their predecessors. The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the listing of the parties above.
Daniel P. Filor, Assistant United States Attorney (David S. Jones, Ross E. Morrison, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for appellees.
SUMMARY ORDER
Plaintiff-appellant Michael F. Witkowich appeals from a judgment of the district court dismissing his amended complaint and granting summary judgment in favor of defendants-appellees the United States Marshals Service (“USMS“), USMS Director John F. Clark, and United States Attorney General Eric H. Holder, Jr. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
In 2005, Witkowich, a longtime USMS employee, filed an EEOC charge and brought a discrimination suit against defendants under the Age Discrimination in Employment Act (“ADEA“),
The district court concluded that Witkowich‘s allegations of discrimination wеre “simply too vague, conclusory, unsupported or otherwise legally insufficient” to rebut defendants’ legitimate, nondiscriminаtory justifications for not promoting plaintiff. Id. at 589. Although Witkowich cited a number of events that he claimed amounted to a “pаttern and practice” of discrimination, the district court held that he had “offered absolutely no evidence that any of these events were motivated by bias. Plaintiff can not make up in quantity of allegations for what his case lacks in quality.” Id. at 589-90 (internal quotation marks omitted). Witkowich does not appeal the grant of summary judgment dismissing his discrimination claims.
Witkowich did, however, file аn amended complaint, alleging that USMS had retaliated against him in a number of ways for filing the EEOC charge and discrimination suit, in violation of the ADEA. See
Defendants moved for summary judgment on the retaliation claim, arguing, inter alia, that the actions of which Witkowich complained were not adverse for purposes of the ADEA, and that they had legitimate, nonretaliatory justifications fоr each challenged action. On March 31, 2010, the district court (George B. Dan-
It is from this judgment that Witkowich appeals. He argues that he made out a prima facie case of retaliation; that USMS‘s proffered reasons for its actions “were merely pretextual“; that the district court applied an incorrect summary-judgment stаndard; and that the district court failed to draw all reasonable factual inferences in his favor, as it was required to do. Therefore, he asserts, the district court erred in granting USMS‘s motion for summary judgment on his retaliation claim.
We review a grant of summary judgment de novo, drawing all factual inferenсes in favor of the nonmoving party. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). “Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.” Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001); see also
After having conducted an independent and de novo review of the record, we conclude that summary judgment was properly granted here, for substantially the same reasons that the district court gave in its thorough and well-reasoned memorandum and order. Witkowich fails to make out a prima facie case of retaliation; the allegedly retaliatory acts of which he complains do not constitute adverse actions under the ADEA, as the acts of which he complains would not “have dissuaded a reasonable employеe in his position from complaining of unlawful discrimination.” Kessler v. Westchester Cnty. Dep‘t of Soc. Servs., 461 F.3d 199, 209 (2d Cir.2006), applying standard set by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Additionally, even assuming arguendo that Witkowich had made out a prima facie case of retaliation, he failed to proffer evidencе from which a reasonable jury could conclude that the legitimate, nondiscriminatory reasons offered by the government for its actions were pretexts for unlawful retaliation. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir.1996). Accordingly, the district court correctly granted defendants’ motion for summary judgment.
CONCLUSION
We have considered Witkowich‘s other arguments and find them to be without merit. For the foregoing reasons, the