11-4791-cv
Fried v. LVI Servs., Inc.



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of October, two thousand twelve.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 SUSAN L. CARNEY
                         Circuit Judges.
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BURTON T. FRIED,
                           Petitioner-Appellant,

                       v.                                                No. 11-4791-cv

LVI Services, Inc., AKA LVi Services, Inc., LVI Parent
Corp., Code Hennessy Simmons LLC, DBA CHS Private
Equity V LP, Apollo Investment Corp., Scott E. State,
in his official capacity and in his individual capacity,
Brian Simmons, in his official capacity and in his
individual capacity, Rajay Bagaria, in his official
capacity and in his individual capacity, Gerald J. Girardi,
in his official capacity and in his individual capacity,
                         Respondent-Appellees.
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APPEARING FOR APPELLANT:                 DOUGLAS H. WIGDOR (Shaffin A. Datoo, on
                                         the brief), Thompson Wigdor LLP, New York,
                                         New York.


APPEARING FOR APPELLEE:                  JOANNE SELTZER, (Jillian L. Hunt, on the
                                         brief), Jackson Lewis LLP, New York, New
                                         York.

APPEARING FOR AMICUS CURIAE: ELIZABETH E. THERAN, Attorney (P. David
                             Lopez, General Counsel, Lorraine C. Davis,
                             Acting Associate General Counsel, on the brief),
                             for Equal Employment Opportunity Commission,
                             Washington, D.C.

      Appeal from a judgment of the United States District Court for the Southern District

of New York (Jed S. Rakoff, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on October 4, 2011, is AFFIRMED.

      Burton T. Fried appeals from an award of summary judgment in favor of his former

employer LVI Services, Inc. (“LVI”), as well as certain identified LVI Board members,

officers, and related entities on Fried’s claims of age discrimination and retaliation in

violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634,

and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq.

(“NYCHRL”). We review an award of summary judgment de novo, viewing the record

evidence in the light most favorable to the non-moving party and drawing all reasonable

inferences in its favor. See Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d

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Cir. 2012). We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     ADEA Claims

       Fried contends that the district court erred at the third step of the familiar McDonnell-

Douglas burden-shifting framework, which governs ADEA discrimination claims, see

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010), in two respects: (1)

by categorically concluding that “stray remarks” of age bias cannot raise an issue of material

fact as to pretext; and (2) by failing to consider whether the totality of the evidence, rather

than each piece of evidence individually, would permit a reasonable jury to find the alleged

discrimination.

       On review of the district court’s detailed 35-page opinion, we are not convinced that

it committed either of these errors. We need not pursue that point, however, because on de

novo review, we also conclude that Fried failed to carry his burden at the third step of

analysis.

       In Henry v. Wyeth Pharmaceuticals, 616 F.3d 134 (2d Cir. 2010), we identified four

non-dispositive factors appropriately considered in deciding what weight to accord isolated

remarks suggestive of discriminatory bias: “(1) who made the remark (i.e., a decision-maker,

a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the

employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror



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could view the remark as discriminatory); and (4) the context in which the remark was made

(i.e., whether it was related to the decision-making process).” Id. at 149. Here, the remark

in question—a query to Fried: “Burt, you’re 71 years of age, how long do you expect to

work? What if you’re hit by a bus?”—was made by LVI’s new CEO less than six weeks prior

to Fried’s termination as LVI Chairman. The remark expressly referenced Fried’s age in the

context of disputing his claimed job duties. These circumstances indicate that the statement

can bear some weight in demonstrating discriminatory bias.

       But Fried’s burden at the third step of analysis required him to show more than

possible age bias; he was required to adduce sufficient evidence to permit a reasonable jury

to find that “but for” defendants’ age bias, he would not have been terminated. See Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The remark cannot bear that weight

when considered against the overwhelming documentary evidence supporting LVI’s

articulated non-discriminatory reason for terminating Fried: the need to ensure that CEO

State would be free to manage the company as he saw fit. The same conclusion obtains even

when, as we must, we consider the totality of the evidence that Fried points to as evidence

of defendants’ age bias. Record evidence shows that, before State accepted the CEO position

at LVI, Fried had provided written assurances to Board members that the new CEO would

indeed be in charge of the company and that Fried would afford State “all the room he wants”

to run LVI as he saw fit. Instead, the evidence shows that, almost immediately after State



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assumed the CEO position, Fried attempted to arrogate to himself fifteen areas of

responsibility that went well beyond the most liberal construction of “strategic growth,” his

designated area of responsibility as LVI Chairman. On this record, we are compelled to

conclude, as the district court did, that no reasonable juror could find that LVI’s non-

discriminatory reason for terminating Fried was a pretext for age discrimination and that “but

for” Fried’s age, he would not have been terminated.

       The record compels the same conclusion with respect to Fried’s claim that he was

terminated in retaliation for complaining of age discrimination. In urging otherwise, Fried

urges us to read Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, to require but-for causation

only for ADEA claims of disparate treatment, not for ADEA retaliation claims. The

conclusion is by no means obvious because the same word—“because”— relied on by Gross

to support the conclusion that but-for causation is necessary to an ADEA disparate treatment

claim, see id. at 176, is also found in the statute’s retaliation provision, see 29 U.S.C. §

623(d). We need not, however, reach the question of whether the Supreme Court’s reasoning

in Gross would allow us to draw the distinction Fried proposes. Under either the but-for test

or the motivating factor analysis that Fried prefers, the evidence in the record is insufficient

to permit a jury to find that Fried was terminated “because” of his complaints of age

discrimination. See 29 U.S.C. § 623(d).




                                               5
       Accordingly, we affirm the award of summary judgment to defendants on both Fried’s

ADEA discrimination and his ADEA retaliation claims.

2      NYCHRL Claims

       Fried, who at all times relevant to his complaint lived and worked in Connecticut,

also claims age discrimination and retaliation in violation of the NYCHRL. He argues that

the district court erred in ruling that this claim was foreclosed by Hoffman v. Parade

Publ’ns, 15 N.Y.3d 285, 907 N.Y.S.2d 145 (2010). Fried submits that he satisfied Hoffman’s

“impact requirement,” id. at 290, 907 N.Y.S.2d at 148, because he frequently communicated

with LVI’s New York headquarters and attended meetings in New York City regarding local

projects, and because State’s decision to reassign his work duties was made in New York.

Hoffman, however, found similar assertions insufficient to satisfy the impact requirement.

See id. at 288, 907 N.Y.S.2d at 146 (noting plaintiff’s assertions that he attended quarterly

meetings in New York City, that he was managed from New York City, and that the decision

to terminate him was made in New York City). Indeed, in Hoffman, the New York Court

of Appeals emphasized that, to make the NYCHRL “simple for courts to apply and litigants

to follow, lead[ing] to predictable results,” it confined the protections of that law “to those

who are meant to be protected—those who work in the city.” Id. at 291, 907 N.Y.S.2d at

148. Because Fried did not “work in the city,” summary judgment was properly granted for

defendants on his NYCHRL claim.



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3.    Conclusion

      We have considered Fried’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                 FOR THE COURT:

                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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