     09-0262-cv
     Davey v. Winfield Jones



                               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.



            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 29th day of March, two thousand ten.

     PRESENT:
                 ROSEMARY S. POOLER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                   Circuit Judges.
     ___________________________________________________

     Peter Davey,

                       Plaintiff-Appellant,

                       v.                                                  09-0262-cv

     Winfield Jones, Jones Hirsch Connors & Bull P.C.,

                 Defendants-Appellees.
     ____________________________________________________

     FOR APPELLANT:                   Peter F. Davey, pro se, New York, New York.

     FOR APPELLEES:                   James P. Connors (Kerry J. Kaltenbach, on the brief), Jones
                                      Hirsch Connors & Bull P.C., New York, New York.
      Appeal from a judgment of the United States District Court for the Southern District
of New York (Chin, J.).

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be AFFIRMED.

         Appellant Peter F. Davey, an attorney proceeding pro se, appeals a judgment of the
district court granting the Defendants’ motion for summary judgment and dismissing
Davey’s claim that he was terminated from his employment in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and state and local
anti-discrimination laws. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        As an initial matter, we do not accept any of the arguments in support of Davey’s
pending motions before this Court. First, we deny Davey’s motion to strike the
supplemental appendix on the grounds that it was duplicative and that he did not receive
notice of the motion to submit it. We find that Davey in fact consented to the filing of the
supplemental appendix and was properly served with it. Furthermore, we reject his
contention that the materials in the supplemental appendix were duplicative, because not all
of the documents in the supplemental appendix were included in the appendix.

        Second, we deny Davey’s motion to “not confirm summary judgment,” because the
motion amounts to a request that this court decide the merits of Davey’s appeal in a motion.
All of Davey’s pending motions are therefore hereby DENIED.

        We now proceed to consider the merits of Davey’s appeal. We review orders
granting summary judgment de novo and focus on whether the district court properly
concluded that there was no genuine issue as to any material fact and the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material
fact, we are “required to resolve all ambiguities and draw all permissible inferences in favor
of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128,
137 (2d Cir. 2003) (internal quotation marks omitted). However, “conclusory statements or
mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New
York, 316 F.3d 93, 100 (2d Cir. 2002).

        This Court has analyzed plaintiffs’ ADEA claims by applying a burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (holding that the same
standard applies to claims of discrimination based upon gender and age). “To establish a
prima facie case of age discrimination under the ADEA or gender discrimination under
Title VII, a plaintiff must demonstrate the following: (1) []he was within the protected
class; (2) []he was qualified for the position; (3) []he was subject to an adverse employment
action; and (4) the adverse action occurred under circumstances giving rise to an inference
of discrimination.” Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009). At the

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second stage of the inquiry, if the “plaintiff satisfies his initial, minimal, burden the burden
of production shifts to the employer to articulate some legitimate, nondiscriminatory reason
for the termination, supported by admissible evidence which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the cause of the employment
action.” Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (internal citations
and quotation marks omitted). Finally, if the “employer carries this burden, the burden
shifts back to the plaintiff to demonstrate by competent evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for discrimination.”
Id. (internal quotation marks omitted). “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Id. (quoting Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253
(1981) (internal quotation marks omitted)).

        In Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2351 (2009), the Supreme
Court concluded that under the plain language of the ADEA, an employee bringing a
disparate treatment claim must prove by a preponderance of the evidence that age was the
“but-for” cause of the employer’s adverse action, and not merely one of the motivating
factors. The Court also noted that it “has not definitively decided whether the evidentiary
framework of McDonnell Douglas . . . is appropriate in the ADEA context.” Id. at 2349
n.2.

         We need not now decide whether to continue to apply McDonnell Douglas or to
abandon it in the wake of Gross. Davey’s claim would fail under either standard. The
district court properly concluded that, even assuming that Davey made a prima facie
showing of discrimination, he failed to demonstrate that the legitimate, non-discriminatory
reason for his termination proffered by the Defendants–namely, his failure to file a notice of
appeal as directed–was mere pretext, and he failed to meet his burden to prove by a
preponderance of the evidence that his termination was actually motivated, at least in part,
by age discrimination. See James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir. 2000).
Davey offered no evidence beyond his own conclusory allegations that he was terminated
because of his age, which were insufficient to withstand summary judgment. See Davis,
316 F.3d at 100.

       Because he failed to demonstrate that his age was even one motivating factor in his
termination, Davey failed to prove that his age was the “but-for” reason for his termination.
See Gross, 129 S. Ct. at 2351. We therefore affirm the district court’s judgment on
substantially the same grounds stated in its memorandum decision.

        We also affirm the district court’s decision as to Davey’s state and local law claims.
Claims brought under the New York Human Rights Law, N.Y. Exec. Law § 290 et seq.,
and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502, are analyzed
under the McDonnell Douglas burden-shifting framework. See Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Davey’s claims under these statutes fail
because he has adduced no evidence showing that the proffered reason for his termination
was pretextual.
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       We have considered Davey’s remaining arguments and conclude that they are
without merit.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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