     12-5082-cv
     Graves v. Deutsche Bank Sec.

                          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 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of December, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DANIEL B. GRAVES,
13
14                    Plaintiff-Appellant,
15
16                    -v.-                                              No. 12-5082-cv
17
18       DEUTSCHE BANK SECURITIES, INC.,
19
20                Defendant-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR PLAINTIFF-APPELLANT:              RICHARD T. SEYMOUR, Washington,
24                                             D.C. (Steven A. Berger &
25                                             Jonathan Rogin, Berger & Webb,
26                                             LLP, New York, NY, on the
27                                             brief).
28

                                                  1
 1   FOR DEFENDANT-APPELLEE:     NICHOLAS H. DE BAUN (Clifford H.
 2                               Fonstein & Cameron Alexander
 3                               Smith, on the brief), Seyfarth
 4                               Shaw LLP, New York, NY.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Southern District of New York (Jones, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13       Daniel B. Graves appeals a judgment dismissing his

14   claims against Deutsche Bank Securities, Inc. (“Deutsche

15   Bank”) for age discrimination and retaliation in violation

16   of the Age Discrimination in Employment Act of 1967 (“ADEA”)

17   and New York City Human Rights Law.   We assume the parties’

18   familiarity with the underlying facts, the procedural

19   history, and the issues on appeal.

20       We review de novo a grant of summary judgment, drawing

21   all reasonable inferences in the non-moving party’s favor.

22   See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).

23   Summary judgment is appropriate if the record shows that

24   “there is no genuine dispute as to any material fact and the

25   movant is entitled to judgment as a matter of law.”     Fed. R.

26   Civ. P. 56(a).   A genuine dispute of material fact exists

27   only “where the evidence is such that a reasonable jury

28   could decide in the non-movant’s favor.”    Beyer v. Cnty. of

29   Nassau, 524 F.3d 160, 163 (2d Cir. 2008).



                                   2
1        1.     Age Discrimination.   “[T]o establish a prima facie

2    case of age discrimination, [Graves] must show (1) that [he]

3    was within the protected age group, (2) that [he] was

4    qualified for the position, (3) that [he] experienced

5    adverse employment action, and (4) that such action occurred

6    under circumstances giving rise to an inference of

7    discrimination.”   Gorzynski v. JetBlue Airways Corp., 596

8    F.3d 93, 107 (2d Cir. 2010).     The burden then “shifts to

9    [Deutsche Bank] to articulate ‘some legitimate,

10   nondiscriminatory reason’ for its action.”     Id. at 106

11   (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

12   (1973)).   Such a proffer shifts the burden back to the

13   plaintiff to demonstrate pretext.     Id.

14       Deutsche Bank articulates legitimate, nondiscriminatory

15   reasons for terminating Graves’s employment, including (1) a

16   downward revenue trend and top-heaviness in Graves’s group;

17   and (2) Graves’s low actual and projected revenue as

18   compared to that of other managing directors.

19       Graves’s rebuttal is based largely on a single alleged

20   remark by his superior about transferring clients to younger

21   bankers.   But Graves was required to do more than

22   demonstrate that an arguably discriminatory comment was

23   made.    See, e.g., Slattery v. Swiss Reins. Am. Corp., 248

24   F.3d 87, 89, 93-94 (2d Cir. 2001) (affirming summary

                                      3
1    judgment despite statements expressing desire for a “younger

2    workforce”); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d

3    456, 468-69 (2d Cir. 2001) (affirming summary judgment

4    despite “numerous comments about the age of the Pan Am pilot

5    force”).    He was required to demonstrate that the

6    nondiscriminatory reasons for his termination were “false,

7    and that discrimination was the real reason.”    St. Mary’s

8    Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis

9    omitted).    There is no evidence that Deutsche Bank’s

10   proffered justifications are false.    To the contrary, the

11   record shows that: (1) the superior (who had hired Graves

12   just a few years prior) was himself almost a decade older

13   than Graves; (2) the so-called “younger” bankers were barely

14   younger than Graves; and (3) Deutsche Bank chose to retain a

15   managing director from the same group who was four years

16   older than Graves.    See Slattery, 248 F.3d at 94

17   (considering fact that plaintiff’s “supervisors . . . were

18   also members of the protected class” in affirming summary

19   judgment on ADEA claim); Grady v. Affiliated Cent., Inc.,

20   130 F.3d 553, 560 (2d Cir. 1997) (“[S]ome factors strongly

21   suggest that invidious discrimination was unlikely.      For

22   example, when the person who made the decision to fire was

23   the same person who made the decision to hire, it is

24   difficult to impute to her an invidious motivation that

                                    4
1    would be inconsistent with the decision to hire.”); Bay v.

2    Times Mirror Magazines, Inc., 936 F.2d 112, 118 (2d Cir.

3    1991) (finding “no evidence upon which a trier of fact could

4    reasonably reject” non-discriminatory motivations because,

5    inter alia, retained employees were older than plaintiff).

6           2.   Retaliation.     “To establish a prima facie case of

7    retaliation, [Graves] must show (1) that [he] participated

8    in a protected activity, (2) that [he] suffered an adverse

9    employment action, and (3) that there was a causal

10   connection between [his] engaging in the protected activity

11   and the adverse employment action.”       Gorzynski, 596 F.3d at

12   110.    Such a showing shifts the burden to Deutsche Bank to

13   articulate a legitimate, non-retaliatory reason for its

14   action.     See id. at 111.    If it does so, the burden shifts

15   back to Graves to demonstrate that the claimed justification

16   is pretextual.     See id.

17          Graves has adduced no evidence of causal connection.

18   Indeed, his termination preceded his complaints of

19   discrimination.

20          Graves’s claims based on alleged post-termination

21   adverse employment actions also fail.       He provides no

22   evidence plausibly supporting any customary or actual

23   entitlement to a “soft landing” (e.g., a six-month period of

24   time in which to find another position), transfer to another

                                        5
1   group, larger severance payment, or bonus.     Nor does the

2   evidence suggest that any of these “perks” was denied to

3   Graves because of a discriminatory or retaliatory intent on

4   Deutsche Bank’s part.

5       Finally, Graves attempts to revive a Fair Labor

6   Standards Act (“FLSA”) retaliation claim.    We reject the

7   effort for reasons set forth in the margin.1

8       Graves has therefore not raised a genuine dispute of

9   material fact on any of his age discrimination or




        1
           Judge Jones dismissed that claim at an earlier stage
    in the litigation on the basis of Lambert v. Genesee
    Hospital, which held that the relevant FLSA provision
    “limits the cause of action to retaliation for filing formal
    complaints, instituting a proceeding, or testifying, but
    does not encompass complaints made to a supervisor.” 10
    F.3d 46, 55 (2d Cir. 1993). The Supreme Court recently
    concluded that the FLSA retaliation provision contemplates
    oral as well as written complaints but “state[d] no view on”
    whether, contrary to Lambert, the retaliation provision
    covers complaints to private employers. Kasten v. Saint-
    Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1336
    (2011). Graves asks us to overrule Lambert on the basis of
    Kasten’s reasoning, if not its explicit holding.

         We have no occasion to reach the question of Kasten’s
    scope here. Graves’s FLSA claim relies on the same facts
    and allegations as the other retaliation claims and fails
    for substantially the same reasons. See Mullins v. City of
    N.Y., 626 F.3d 47, 53 (2d Cir. 2010) (“FLSA retaliation
    claims are subject to the three-step burden shifting
    framework established by McDonnell Douglas . . . .”); Brock
    v. Casey Truck Sales, Inc., 839 F.2d 872, 876 (2d Cir. 1988)
    (using McDonnell Douglas burden-shifting framework to
    analyze FLSA retaliation claims).
                                 6
1   retaliation claims.   The district court properly granted

2   summary judgment to Deutsche Bank.2

3       We have considered all of Graves’s remaining arguments

4   and conclude that they are without merit.   The judgment of

5   the district court is hereby affirmed.

6
7                               FOR THE COURT:
8                               CATHERINE O’HAGAN WOLFE, CLERK
9




        2
          The district court did not abuse “broad discretion”
    by considering only part of Graves’s 127-page response to
    Deutsche Bank’s five-page statement of undisputed facts.
    Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).
    Graves flagrantly violated Local Civil Rule 56.1, which
    requires a “short and concise,” non-argumentative response.
                                  7
