Summary
noting that recommendations or lack thereof constitute a legitimate, non-discriminatory reason
Summary of this case from Boger v. N.Y. State Office of ParksOpinion
No. 09-2217-cv.
June 16, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge; Debra Freeman, Magistrate Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the September 30, 2008 judgment and April 29, 2009 order of the district court are AFFIRMED.
Anthony J. Milano, Emerson, NJ, pro se.
Brian M. Feldman, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
SUMMARY ORDER
Pro se plaintiff Anthony J. Milano appeals an award of summary judgment in favor of the Commissioner of Social Security ("SSA") on Milano's claims of age discrimination in employment, see 29 U.S.C. §§ 621- 634. He further appeals the denials of his cross-motion for summary judgment, his motion for reconsideration of the summary judgment award, and his motion to file a second amended complaint. We assume familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.
Because Milano raises no challenge to the grant of summary judgment as to his claims under the Privacy Act of 1974, 5 U.S.C. § 552a, or the Civil Service Reform Act, id. §§ 2301(b), 2302(b), we deem those claims abandoned, see Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998); Losacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. We review a grant of summary judgment de novo, resolving all ambiguities and drawing all permissible inferences in favor of the nonmoving party. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Upon such review, we conclude, for substantially the reasons articulated by the district court and by the magistrate judge in her exhaustive and well-reasoned report and recommendation, that summary judgment was properly granted in favor of defendants on Milano's age discrimination claims. Employing the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), see Gorzynski v. JetBlue Airways, 596 F.3d 93, 105-06 (2d Cir. 2010), we conclude that Milano failed to adduce evidence sufficient to create a triable question of fact on his assertion that defendants' proffered non-discriminatory reasons for various challenged employment actions were pretextual. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103-07 (2d Cir. 2001).
With respect to Milano's claim based on the March 1, 1998 selection of Jane Zanca as disability program administrator, because Milano failed to complain about that action until November 20, 1998, we affirm the district court's additional conclusion that this part of his age discrimination claim was time-barred. See Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 112 (2d Cir. 2008); 29 C.F.R. § 1614.105(a).
Further, because Milano's motion for reconsideration pointed to no "controlling decisions or data that the [district] court overlooked," Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), we identify no abuse of discretion in the denial of that motion, see Universal Church v. Geltzer, 463 F.3d 218, 228 (2d Cir. 2006).
Finally, assuming arguendo that Milano has preserved his challenge to the district court's denial of leave to file a second amended complaint adding Fifth Amendment due process claims, but see Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008), we detect no abuse of discretion in that denial, see Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007). For the reasons articulated by the magistrate judge in her September 7, 2007, 2007 WL 2668511, order, to which Milano did not object, the amendment Milano proposed would have been futile. See Patane v. Clark, 508 F.3d 106, 113 n. 6 (2d Cir. 2007).
We have considered Milano's remaining claims of error, and we conclude that they are without merit. Accordingly, the judgment and order of the district court are AFFIRMED.