Reiss v. Hernandez

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19-3325-cv Reiss v. Hernandez, et al. 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 14th day of July, two thousand twenty-one. PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges. CAROLE REISS, Plaintiff-Appellant, 19-3325-cv v. MELITINA HERNANDEZ, NEW YORK CITY DEPARTMENT OF EDUCATION, AND JENNIFER JOHNSON, Defendants-Appellees. FOR PLAINTIFF-APPELLANT: BRYAN D. GLASS, Glass Harlow & Hogrogian LLP, Pearl River, NY. 1 FOR DEFENDANTS-APPELLEES: EVA L. JEROME (Melanie T. West, on the brief), for Georgia M. Pestana, Acting Corporation Counsel of the City of New York, New York, NY. Appeal from a judgment entered September 27, 2019 by the United States District Court for the Southern District of New York (William H. Pauley III, Judge). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is AFFIRMED. Plaintiff-Appellant Carole Reiss appeals from a judgment of the District Court in favor of Defendants-Appellees New York City Department of Education (“DOE”), Principal Hernandez, and Assistant Principal Johnson, both of Public School (“P.S.”) 123 in New York City (together, “Defendants”). Proceeding as a pro se litigant, Reiss brought claims under the Age Discrimination in Employment Act (“ADEA”) in connection with her tenure as a gym teacher at P.S. 123, alleging age discrimination, retaliation, and constructive discharge. Defendants moved for summary judgment on Reiss’s claims, which the District Court granted. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review a grant of summary judgment de novo, construing the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in the non-movant’s favor. 1 As to her age discrimination claim, Reiss argues that the District Court erred in concluding that she had failed to adduce evidence showing that the facts were disputed as to whether Defendants’ non-discriminatory reason for Reiss’s ineligibility for “per session work”—specifically, Reiss’s ineffective ratings—was pretextual. We do not agree. The District Court properly assessed Reiss’s age discrimination claim under the burden- shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which applies to claims brought under the ADEA. 2 At step 1, the District Court afforded 1 See …

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