Jo Ann MUSCOREIL, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee, 39 F. App'x 675

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRM1ED. Jo Ann Muscoreil appeals the dismissal by the Western District of New York (Arcara, J.) of her suit for discriminatory termination based on age, gender, or disability. The district court’s

summary judgment decision adopted in whole the report and recommendation of Magistrate Judge Edmund F. Maxwell, which found {inter alia) that Muscoreil had failed to show that the legitimate, non-diseriminatory reason for her termination was pretextual. Muscoreil adduced evidence that her store manager, Kathryn Burzynski, harbored bias (having made comments that older female employees did not communicate the image she wanted to promote for her store); but there was no evidence from which a jury could have found that Burzynski contributed to the decision to terminate Muscoreil.

Muscoreil was terminated because of misconduct involving violation of the company’s employee discount policy. The decision to terminate her was made by higher level employees, and while they communicated with Burzynski about their determination to dismiss Muscoreil, there is no evidence that Burzynski influenced the decision.