         09-3879-cv
         Sullivan v. Brodsky


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 2 nd day of June, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       EDWARD M. SULLIVAN,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   09-3879-cv
18
19       JEFFREY BRODSKY, ERIC KAYNE, and
20       MORGAN STANLEY,
21
22                                       Defendants-Appellees.
23
24
25
 1   FOR APPELLANT:              JOHN K. CROSSMAN (Frank C.
 2                               Welzer, on the brief), Zukerman
 3                               Gore Brandeis & Crossman, LLP,
 4                               New York, NY.
 5
 6   FOR APPELLEES:              AMBER L. KAGAN, Morgan, Lewis &
 7                               Bockius LLP, New York, NY.
 8
 9        Appeal from the United States District Court for the
10   Southern District of New York (Jones, J.).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court is

14   AFFIRMED.

15       Plaintiff commenced this action against Morgan Stanley

16   and two of its human resources employees, bringing claims

17   under the Age Discrimination in Employment Act (“ADEA”), 29

18   U.S.C. § 621 et seq., against all three defendants, as well

19   as state-law claims against the individual defendants.    The

20   district court granted summary judgment in favor of

21   defendants on each of plaintiff’s claims.   Sullivan v.

22   Brodsky, No. 07 Civ. 0003, 2009 WL 2516838 (S.D.N.Y. Aug.

23   17, 2009).   In this appeal, plaintiff only challenges the

24   court’s decision with respect to his ADEA claim against

25   Morgan Stanley.   We presume the parties’ familiarity with

26   the facts, procedural history, and issues on appeal.

27       We review de novo the district court’s decision

28   granting summary judgment and draw all reasonable factual

                                   2
1    inferences in favor of the party opposing the motion, and we

2    assess plaintiff’s ADEA claim under the burden-shifting

3    framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

4    (1973).   Gorzynski v. Jetblue Airways Corp., 596 F.3d 93,

5    101, 106 (2d Cir. 2010).   Although the district court held

6    that plaintiff failed to establish a prima facie case of age

7    discrimination, we assume, arguendo, that he met that

8    initial burden.   Moreover, with respect to the second step

9    of the McDonnell Douglas analysis, there is no dispute that

10   defendants proffered a legitimate, non-discriminatory

11   explanation for Morgan Stanley’s decision to terminate

12   plaintiff.

13       Proceeding to the final step of the analysis, plaintiff

14   must adduce sufficient evidence to allow a rational fact

15   finder to conclude that “‘age was the “but-for” cause of the

16   challenged adverse employment action’ and not just a

17   contributing or motivating factor.”   Id. (quoting Gross v.

18   FBL Fin. Servs. Inc., 129 S. Ct. 2343, 2352 (2009)).     In

19   this regard, we agree with the district court that plaintiff

20   failed to meet this burden.   To the extent there is evidence

21   of ageist behavior by any Morgan Stanley employee in the

22   record, plaintiff has not produced sufficient evidence to



                                   3
1    allow a rational factfinder to conclude that such events

2    were linked to the decision to terminate plaintiff.

3    Therefore, a reasonable jury could not conclude, absent

4    speculation, that plaintiff’s age was the “but-for” cause of

5    his termination.

6        We have considered all of plaintiff’s contentions in

7    this appeal and found them to be without merit.

 8   Accordingly, the judgment of the district court is AFFIRMED.
 9
10
11                              FOR THE COURT:
12                              Catherine O’Hagan Wolfe, Clerk
13
14




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