Zenie v. College of Mount Saint Vincent ( 2021 )

20-3535-cv
Zenie v. College Of Mount Saint Vincent
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of December, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
EUNICE C. LEE,
Circuit Judges.
ROBERT DEAN ZENIE,
Plaintiff-Appellant, 20-3535-cv
v.
COLLEGE OF MOUNT SAINT VINCENT AND BARIMA
YEBOAH,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: KATHLEEN A. DALY, The Law Office of
Kathleen A. Daly, P.A., New York, NY.
FOR DEFENDANTS-APPELLEES: JESSICA C. MOLLER, Bond, Schoeneck &
King, PLLC, Garden City, NY.
Appeal from an order and judgment of the United States District Court for the Southern
District of New York (Jesse M. Furman, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order and judgment of the District Court be and hereby
are AFFIRMED.
Plaintiff Robert Dean Zenie was the Head Wrestling Coach and Assistant Athletic Director
of Athletics for Facilities and Operations at the College of Mount Saint Vincent (the “College”). He
alleges that the College and Barima Yeboah, the College’s Athletic Director (together,
“Defendants”), denied him a promotion, forced him to resign, and retaliated against him in violation
of the Age Discrimination in Employment Act (“ADEA”). The District Court granted Defendants’
motion for summary judgment. Zenie appeals. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
“We review de novo . . . a district court’s grant of summary judgment.” Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (citation and
internal quotation marks omitted). “Summary judgment is proper only where ‘the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Accordingly, we “construe the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in [his] favor.” Id.(citation, alterations, and internal quotation marks omitted).
We evaluate Zenie’s discrimination claim under the familiar burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010). Under this framework, Zenie must establish a prima facie case of
discrimination. See id. If he does, Defendants have the burden of proving a legitimate, non-
discriminatory reason for acting. See id. If they do, Zenie must show that age was the “but for”
cause of the challenged adverse employment action. See id. at 107.
We assume without deciding that Zenie has established a prima facie case of age
discrimination for the College’s failure to promote him to Associate Director of Athletics. The
College explains, however, that Zenie was not promoted because the Associate Director jobs that he
wanted required that the candidate also coach basketball, which Zenie had never done. Given this
gap, Zenie’s credentials were not “so superior” to those of James Mooney, the candidate hired by
the College, that “no reasonable person . . . could have chosen [Mooney] over [Zenie] for the job in
question.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). And Zenie
presents no evidence of comments about his age that would support an inference of discrimination.
See Terry v. Ashcroft, 336 F.3d 128, 139 (2d Cir. 2003).
Zenie argues that the College could have paired the Associate Director position with a non-
basketball coaching position. But because Zenie again presents no evidence that the College’s
pairing of these positions was pretext for discrimination, we must defer to the College’s judgment.
See Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (noting that “we do not sit as a
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super-personnel department that reexamines an entity’s business decisions” (citation and internal
quotation marks omitted)); cf. Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (noting
in the Americans with Disabilities Act context that “a court must give considerable deference to an
employer’s judgment regarding what functions are essential for service in a particular position”
(alteration and citation omitted)).
Nor has Zenie shown that his job “was rendered so intolerable that [ ]he was compelled to
quit.” Petrosino v. Bell Atl., 385 F.3d 210, 231 (2d Cir. 2004). Zenie has adduced evidence that his
wrestling budget was severely cut, jeopardizing his ability to recruit; that he was not considered for a
promotion; and that Kelli Bodrato, the College’s Dean of Students, reported to Zenie concerns
about his “performance and attitude,” and described his comments as “harsh and
counterproductive.” But dissatisfaction with work assignments, reduced promotion opportunities,
and criticism of one’s work do not establish constructive discharge. See id. (reduced promotion
opportunities); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (dissatisfaction with
assignments and criticism).
Zenie has also adduced evidence that Bodrato and Yeboah disparaged him to the College’s
President, Charles Flynn, and a senior administrator; that they requested that Mooney report on
Zenie’s behavior; and that they wrongly accused Zenie of interfering with the College’s hiring and of
“cantankerous” behavior. Because there is no evidence that Zenie was aware of these private
comments prior to his September 5, 2017 resignation—and, indeed, Zenie’s federal complaint in this
case does not mention them— they could not have made Zenie’s work conditions “intolerable.”
Petrosino, 385 F.3d at 231.
Finally, to establish a prima facie case of retaliation under the ADEA, Zenie must show “(1)
[ ]he engaged in protected activity, (2) the [College] was aware of that activity, (3) [he] suffered a[ ]
[materially] adverse . . . action, and (4) there was a causal connection between the protected activity
and the [materially] adverse . . . action.” Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 43 (2d Cir.
2019). Zenie has not adduced evidence of the required causal connection. Specifically, he has not
adduced evidence that Flynn, who decided to pair the Associate Director positions with the
basketball coaching positions for which Zenie was not qualified, was aware of Zenie’s internal
complaint about age discrimination. Zenie points to Flynn’s deposition testimony that Yeboah and
Bodrato, who knew about the internal complaint, disparaged Zenie to Flynn. But Flynn testified
that complaints about Zenie’s performance pre-dated Zenie’s internal complaint. Because these
complaints and cuts to the wrestling team budget “began well before [Zenie] had ever engaged in
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any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am.
Corp., 248 F.3d 87, 95 (2d Cir.), as amended (June 6, 2001). 1
CONCLUSION
We have reviewed all of the arguments raised by Zenie on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the September 14, 2020 order and
September 15, 2020 judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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We have considered Zenie’s Local Rule 56.1 counterstatement of undisputed facts, and we
assume without deciding that the documents attached to his counsel’s declaration may be
authenticated and admitted. We nonetheless hold that summary judgment was proper. Accordingly,
we need not address Zenie’s argument that the District Court abused its discretion in declining to
consider these materials.
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