GALLEGOS v. TOMPKINS CONSOLIDATED AREA TRANSIT INC (2019)

SUMMARY ORDER

Appellant Andres Gallegos, pro se, appeals from the July 16, 2018 judgment of the United States District Court for the Northern District of New York (Sharpe, J.) granting summary judgment to defendant Tompkins Consolidated Area Transit (“TCAT”). Gallegos sued TCAT, his employer, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”), alleging that he was denied a promotion to supervisor because of his race, national origin, and age. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir. 2013). “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (internal quotation marks omitted).

Title VII and ADEA claims are evaluated under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 82–83 (2d Cir. 2015) (Title VII); Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (ADEA). To make out a prima facie case of discrimination, plaintiff bears the burden of establishing that the employer took adverse action against him. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Vega, 801 F.3d at 83 (Title VII); see also Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009) (to establish a prima facie failure-to-promote case, the plaintiff must show he was rejected for the position). Here, Gallegos failed to offer sufficient evidence to show that TCAT took any adverse action against him. Instead, the record demonstrates that Gallegos withdrew his application for the supervisor position before his second interview. TCAT therefore did not reject his application. In sum, TCAT did not take any action against Gallegos, let alone adverse action.

We have considered the remainder of Gallegos’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.