Opinion
No. 09-3879-cv.
June 2, 2010.
Appeal from the United States District Court for the Southern District of New York (Jones, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.
John K. Grossman (Frank C. Welzer, on the brief), Zukerman Gore Brandeis Grossman, LLP, New York. NY, for Appellant.
Amber L. Kagan, Morgan, Lewis Bockius LLP, New York, NY, for Appellees.
PRESENT: AMALYA L. KEARSE, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Plaintiff commenced this action against Morgan Stanley and two of its human resources employees, bringing claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et sec/., against all three defendants, as well as state-law claims against the individual defendants. The district court granted summary judgment in favor of defendants on each of plaintiffs claims. Sullivan v. Brodsky, No. 07 Civ. 0003, 2009 WL 2516838 (S.D.N.Y. Aug.17, 2009). In this appeal, plaintiff only challenges the court's decision with respect to his ADEA claim against Morgan Stanley. We presume the parties' familiarity with the facts, procedural history, and issues on appeal.
We review de novo the district court's decision granting summary judgment and draw all reasonable factual inferences in favor of the party opposing the motion, and we assess plaintiffs ADEA claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Gorzyuski v. Jetblue Airways Corp., 596 F.3d 93, 101, 106 (2d Cir. 2010). Although the district court held that plaintiff failed to establish a prima facie case of age discrimination, we assume, arguendo, that he met that initial burden. Moreover, with respect to the second step of the McDonnell Douglas analysis, there is no dispute that defendants proffered a legitimate, non-discriminatory explanation for Morgan Stanley's decision to terminate plaintiff.
Proceeding to the final step of the analysis, plaintiff must adduce sufficient evidence to allow a rational fact finder to conclude that "`age was the "but-for" cause of the challenged adverse employment action' and not just a contributing or motivating factor." Id. (quoting Gross v. FBI Fin. Servs. Inc., ___ U.S. ___, ___, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009)). In this regard, we agree with the district court that plaintiff failed to meet this burden. To the extent there is evidence of ageist behavior by any Morgan Stanley employee in the record, plaintiff has not produced sufficient evidence to allow a rational factfinder to conclude that such events were linked to the decision to terminate plaintiff. Therefore, a reasonable jury could not conclude, absent speculation, that plaintiffs age was the "but-for" cause of his termination.
We have considered all of plaintiffs contentions in this appeal and found them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.