Opinion
No. 09-1012-cv.
December 1, 2009.
Appeal from the United States District Court for the District of Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the February 13, 2009 order of the United States District Court for the District of Connecticut is AFFIRMED.
Thomas W. Bucci, Willinger Willinger Bucci P.C., Bridgeport, CT, for Appellant.
Michael J. Soltis, Jackson Lewis LLP, Stamford, CT, for Appellee.
SUMMARY ORDER
Plaintiff appeals from an order of the United States District Court for the District of Connecticut (Bryant, J.), which granted summary judgment in defendant's favor on his discrimination claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and declined to exercise supplemental jurisdiction over the remaining state-law claim in the complaint. We presume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo a grant of summary judgment, and ADEA claims in this Circuit are analyzed under the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498-99 (2d Cir. 2009). There is no dispute here regarding the first two steps under McDonnell Douglas: plaintiff established a prima facie case of age discrimination, and defendant satisfied its production burden of articulating a legitimate, non-discriminatory reason for plaintiffs termination. See D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007) (per curiam).
The focus of this appeal, then, is on the third step of the McDonnell Douglas framework, i.e., the existence of discrimination vel won. See Holtz v. Rockefeller Co., 258 F.3d 62, 77 (2d Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). In order to survive summary judgment at this stage of the analysis, a plaintiff must adduce sufficient evidence to support a reasonable inference "that age was the `but-for' cause of the employer's adverse action." Gross v. FBL Fin. Sen's., Inc., ___ U.S. ___, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009); see also Leibowitz, 584 F.3d at 498 n. 2.
Viewing the record as a whole, we conclude that plaintiff has not satisfied this standard. First, the statistical evidence cited by plaintiff is not probative of but-for causation with respect to the adverse employment action at issue. Cf. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) ("[S]tatistics can only show a relationship between an employer's decisions and the affected employees' traits; they do not show causation."). Second, the two remarks by defendant's employees that are cited by plaintiff — neither of which were directed at him — reflect little, if any, age-based discriminatory animus. Indeed, plaintiff conceded in the proceedings below that these remarks were insufficient to establish even a prima facie case of age discrimination, which is a burden that we have described as "de minimis," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).
Finally, we find unpersuasive plaintiffs emphasis on defendant's explanation for its decision not to terminate a younger employee who had assumed some of plaintiffs job responsibilities in April 2006. Assuming, arguendo, that plaintiffs supervisor recommended that plaintiff be terminated in late 2005, and that the same supervisor reassigned some of plaintiffs job responsibilities to a younger employee in April 2006, there nevertheless remains a paucity of evidence that either of those decisions was motivated by plaintiffs age rather than the business reasons articulated by defendant.
Simply put, a factfinder could not rationally conclude from the sum of the evidence in the record that discrimination based on plaintiffs age was the "but-for" cause of his termination. We have reviewed plaintiffs remaining arguments and find them to be without merit. Accordingly, the February 13, 2009, 2009 WL 378586, order of the district court is hereby AFFIRMED.