Joseph S. D'AGOSTA, Thomas Maisano, Plaintiffs-Appellants, v. Dr. Francis J. HARVEY, Secretary, Department of the Army, Defendant-Appellee, 519 F. App'x 701

SUMMARY ORDER Plaintiffs-Appellants Joseph S. D’Agosta and Thomas Maisano appeal from the judgment of the United States District Court for the Eastern District of New York (Gershon, /.), granting

summary judgment in favor of DefendanN-Appellee Dr. Francis J. Harvey, in his capacity as Secretary of the Army. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. D’Agosta and Maisano filed this sex and age discrimination action arising from a dispute with a co-worker, Eileen Barry.

Them suit alleged that, following a complaint by Barry accusing them of inappropriate workplace behavior, the Army Corps of Engineers (“Army Corps”) conducted a seriously flawed investigation that led the Army Corps to accept Barry’s allegations at face value due to her gender. The process ultimately ended in formal reprimands and downgraded performance appraisals for both men. After Appellants filed grievances with the Army Corps, their union invoked the arbitration clause in the parties’ collective bargaining agreement, triggering a thirteen-day arbitration hearing involving sixteen witnesses.

The arbitrator found no discrimination, and the Equal Employment Opportunity Commission upheld the arbitrator’s decision. The current action was filed in the United States District Court for the District of New Jersey, which then transferred the case to the Eastern District of New York. On July 18, 2011, the court granted the Army Corps’ motion for

summary judgment. This Court reviews de novo a district court’s grant of

summary judgment. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir.2011). On appeal, Appellants argue broadly that the district court “failed to adhere to

summary judgment principles.” Pet’r Br. 10. The record shows otherwise. The district court properly set forth and applied well-established principles of

summary judgment under Federal Rule of Civil Procedure 56. See SA 11-12. The court then applied the McDonnell Douglas burden-shifting framework in assessing Appellants’ discrimination claims. See SA 12-18 (employing the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Appellants assert, in conclusory fashion and without record citation, that the district court ignored triable issues of fact.

However, the court’s thorough and well-reasoned opinion concluded [i] that the Army Corps provided a legitimate, nondiscriminatory reason for its actions — the need to investigate alleged misconduct in the workplace; and [ii] that Appellants “proffered insufficient evidence, other than the minimal evidence necessary to establish their prima facie case,” that the agency’s actions were motivated by age or sex bias. SA 16-17. Appellants provide no basis for questioning this decision. In addition, the court properly attached weight to the arbitrator’s findings. See Collins v. N.Y.C.

Transit Auth., 305 F.3d 113, 119 (2d Cir.2002) (holding that an independent and unbiased arbitration decision rendered after an evidentiary hearing and based on substantial evidence “is highly probative of the absence of discriminatory intent”). For the foregoing reasons, and finding no merit in D’Agosta and Maisano’s other arguments, we hereby AFFIRM the judgment of the district court. . This behavior included playing sound bites such as wolf whistles when female employees would pass by their desks and repeatedly questioning Barry about her relationship with another employee.