     14-3212
     Hayden v. Walmart Stores, 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 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 15th day of October, two thousand fifteen
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       CALVIN HAYDEN,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-3212
17
18       WALMART STORES, INC.,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        W. MARTYN PHILPOT, JR., Law
23                                             Office of W. Martyn Philpot,
24                                             Jr., LLC, New Haven,
25                                             Connecticut.

                *
               The Honorable Geoffrey W. Crawford, of the United
         States District Court for the District of Vermont, sitting
         by designation.
                                                  1
 1
 2   FOR APPELLEE:              CRAIG THOMAS DICKINSON, Littler
 3                              Mendelson, P.C., New Haven,
 4                              Connecticut.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the District of Connecticut (Eginton, 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        Calvin Hayden appeals from the judgment of the United
14   States District Court for the District of Connecticut
15   (Eginton, J.), granting summary judgment in favor of
16   Defendant-Appellee Walmart Stores, Inc. (“Walmart”) and
17   dismissing Hayden’s race and age discrimination claims
18   brought pursuant to Title VII of the Civil Rights Act of
19   1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., and the Age
20   Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621,
21   et seq. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        The district court assumed without deciding that Hayden
26   had made out prima facie cases of discrimination on the
27   bases of race and age, but held that Hayden had failed to
28   come forward with evidence sufficient for a jury to
29   reasonably find that Walmart’s articulated legitimate,
30   nondiscriminatory reason for Hayden’s termination--his
31   blending of two eyeglass prescriptions without authorization
32   from the patient’s opthamologist--was pretext for
33   discrimination.
34
35        Upon de novo review, we conclude that the grant of
36   summary judgment was proper. The record is devoid of
37   admissible evidence from which a jury reasonably could infer
38   that discrimination was a motivating factor (or the “but
39   for” cause, as required for Hayden’s ADEA claim) of
40   Walmart’s employment decision.
41
42        Hayden has not provided admissible evidence of
43   disparate treatment of similarly situated employees of a
44   different race and/or age. As explained in the district
45   court’s opinion, Hayden has not demonstrated that either
46   “Dave” or Amy Pagini were similarly situated. Moreover,
47   Hayden’s evidence regarding “Dave” is inadmissible hearsay;

                                  2
 1   it is unclear whether it was Dave or another individual who
 2   purportedly told Hayden about the incident, but it is clear
 3   that Hayden lacked independent knowledge.1 See Fed. R.
 4   Evid. 802.
 5
 6        Nor does Hayden cite any admissible evidence of
 7   negative comments made by the decisionmakers or any other
 8   Walmart personnel regarding his race or age. Hayden does
 9   allege that, after Hayden’s termination, Pagini complained
10   that Hayden was too slow and/or forgetful. But this is also
11   inadmissible hearsay. Hayden claims that Vanessa Byrd, a
12   former Walmart employee, told him that Pagini made these
13   statements. Hayden, who is represented by counsel, did not
14   submit an affidavit or declaration of Byrd in opposition to
15   summary judgment; the only evidence of these statements
16   having occurred is Hayden’s deposition testimony. Although
17   Pagini’s original statements would be admissible nonhearsay
18   if offered for Pagini’s state of mind, for example, or for
19   another purpose other than to prove the truth of the
20   statements, Hayden points to no exception that allows into
21   evidence Byrd’s out-of-court statements to Hayden. See Fed.
22   R. Evid. 802; Fed. R. Evid. 805; DiStiso v. Cook, 691 F.3d
23   226, 230 (2d Cir. 2012) (“[W]here a party relies on
24   affidavits or deposition testimony to establish facts, the
25   statements ‘must be made on personal knowledge, set out
26   facts that would be admissible in evidence, and show that
27   the affiant or declarant is competent to testify on the
28   matters stated.’” (quoting Fed. R. Civ. P. 56(c)(4))).
29   Because the statements are inadmissible, we need not
30   determine whether these “stray remarks” could sufficiently
31   demonstrate “but for” discrimination under the ADEA. See
32   Fried v. LVI Servs., Inc., 500 F. App’x 39, 41 (2d Cir.



         1
           Hayden contends that a white optician, who may (or
     may not) have been named “Dave,” changed the expiration date
     of a prescription, and received only a verbal warning.
     Hayden’s deposition testimony makes clear that Hayden has no
     independent knowledge of the circumstances of the incident.
     He claimed that someone else, whose name he could not
     recall--and who may have been the optician who purportedly
     changed the expiration date or who may have been someone
     else entirely--told him about the incident. Even if this
     were not inadmissible hearsay, Hayden provided insufficient
     detail from which a jury reasonably could infer that “Dave”
     was similarly situated to Hayden for relevant purposes.
                                  3
 1   2012) (summary order); Henry v. Wyeth Pharm., Inc., 616 F.3d
 2   134, 149 (2d Cir. 2010).
 3
 4        Most of Hayden’s appellate briefing is devoted to his
 5   contention that Walmart’s decision to terminate him for
 6   blending the two eyeglass prescriptions was a bad one. But
 7   it is immaterial to Hayden’s federal claims whether Walmart
 8   correctly determined that his actions were contrary to its
 9   internal policy and/or to state law, and that (in any event)
10   they warranted termination. “Evidence that an employer made
11   a poor business judgment in discharging an employee
12   generally is insufficient to establish a genuine issue of
13   fact as to the credibility of the employer’s reasons.”
14   Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir.
15   1988). The reason asserted in this case is not “so lacking
16   in merit as to call into question its genuineness.” Id.
17
18        For the foregoing reasons, and finding no merit in
19   Hayden’s other arguments, we hereby AFFIRM the judgment of
20   the district court.
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
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