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. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x MELISSA REICHERT, Plaintiff‐Appellant,

v. 18‐2452‐cv

SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant-Appellee.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x 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),

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 ‐2‐ 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.

‐3‐ 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.,

(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,

(2d Cir. 2003) (citing McDonnell Douglas Corp. v. Green,

(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

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

‐4‐ 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.,

, 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.,

(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.,

(2d Cir. 2010) (internal quotation marks omitted). ‐5‐ 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

‐6‐ 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.,

(2d Cir. 2015)

(internal quotation marks and citation omitted). Reichert has not identified sufficient

‐7‐ 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.,

(2d Cir. 1999) (explaining that ʺfeelings and perceptions

of being discriminated against are not evidence of discriminationʺ) (internal quotation

marks and brackets omitted)).

* * *

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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