     15-1155
     Friedman v. Swiss Re America Holding Corp.

                                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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   18th day of March, two thousand sixteen.
 4
 5   Present:
 6
 7               PIERRE N. LEVAL,
 8               DEBRA ANN LIVINGSTON ,
 9               SUSAN L. CARNEY,
10                      Circuit Judges.
11   _____________________________________
12
13   GENE FRIEDMAN,
14
15                           Plaintiff-Appellant,
16
17                   v.                                                   15-1155-cv
18
19   SWISS RE AMERICA HOLDING CORP.,
20
21                     Defendant-Appellee.
22   _____________________________________
23
24   For Plaintiff-Appellant:                       Peter A. Hurwitz, New York, NY.
25
26   For Defendant-Appellee:                        Susanne Kantor, Greg A. Riolo, Jackson Lewis P.C.,
27                                                  White Plains, NY.
28
29
30
31
32
 1
 2          UPON      DUE      CONSIDERATION              WHEREOF       it   is   hereby   ORDERED,

 3   ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part,

 4   VACATED in part, and REMANDED for further proceedings consistent with this opinion.

 5          Plaintiff-Appellant Gene Friedman (“Friedman”) appeals the March 13, 2015 judgment

 6   of the United States District Court for the Southern District of New York (Briccetti, J.) granting

 7   summary judgment for Defendant-Appellee Swiss Re America Holding Corporation (“Swiss

 8   Re”). Friedman alleges unlawful employment discrimination on the basis of religion and age,

 9   pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”),

10   and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (“ADEA”). We

11   assume the parties’ familiarity with the underlying facts and procedural history of the case, and

12   with the issues on appeal.

13          We review de novo a district court’s grant of summary judgment, “constru[ing] the facts

14   in the light most favorable to the non-moving party and . . . resolv[ing] all ambiguities and

15   draw[ing] all reasonable inferences against the movant.” See Delaney v. Bank of Am. Corp., 766

16   F.3d 163, 167 (2d Cir. 2014) (quoting Aulicino v. N.Y.C Dep’t of Homeless Servs., 580 F.3d 73,

17   79-80 (2d Cir. 2009)). We uphold a grant of summary judgment “if the evidence, viewed in the

18   light most favorable to the party against whom it is entered, demonstrates that there are no

19   genuine issues of material fact and that the judgment is warranted as a matter of law.” Global

20   Network Commc’ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009).

21          In both the Title VII and ADEA context, we apply the burden-shifting framework

22   articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this

23   framework, a plaintiff must first establish a prima facie case of discrimination by proving: (1) he

24   or she is a member of a protected class; (2) he or she was qualified for the position; (3) he or she

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 1   suffered an adverse employment action; and (4) the adverse employment action occurred under

 2   circumstances giving rise to an inference of discrimination. See id. at 802. If the plaintiff

 3   satisfies his or her burden of establishing a prima facie case, the burden shifts to the employer to

 4   articulate a legitimate, nondiscriminatory reason for its employment decision. See id. at 802-03.

 5   When the employer meets its burden, the plaintiff can no longer rely on the prima facie case: he

 6   or she must prove that the reason presented by the employer was a pretext for unlawful

 7   discrimination. See id. at 804.

 8          Upon de novo review, we conclude that, while the district court correctly granted Swiss

 9   Re’s motion for summary judgment as to Friedman’s Title VII claim, it erred in granting

10   summary judgment as to Friedman’s ADEA claim. As to his Title VII claim, Friedman asserts

11   that Swiss Re’s articulated reason for discharging him—that the discharge was part of a

12   reduction in workforce (“RIF”)—was pretextual, citing an anti-Semitic remark allegedly made

13   by his onetime supervisor Risto Wieland (“Wieland”) to another colleague, Frank Bettineschi

14   (“Bettineschi”), who later shared the comment with Friedman. The proposition that Wieland

15   made this anti-Semitic remark was supported solely by Friedman’s statement that Bettineschi

16   had told him that Wieland made the remark. Friedman’s quotation of Bettineschi as stating that

17   Wieland had made the anti-Semitic remark was proffered for the truth of what Friedman said

18   Bettineschi had told him. Accordingly this was hearsay.

19          Friedman’s ADEA claim, however, is more substantial. First, on an independent review

20   of the record, we are persuaded that he established a prima facie case of age discrimination.1 See

21   McDonnell Douglas, 411 U.S. at 802-04 (stating elements of prima facie case of discrimination).



     1
       The district court assumed that Friedman had established such a prima facie case. See
     Friedman v. Swiss Re Am. Holding Corp., No. 11 Civ. 1792, 2015 WL 2330149, at *4 (S.D.N.Y.
     Mar. 9, 2015).
                                                      3
 1   Friedman (1) was 50 years old, (2) was qualified for his position, (3) was fired, and (4) was

 2   allegedly replaced by a younger, less qualified employee. Accordingly, he met his “minimal”

 3   burden to set out a prima facie case of discrimination. See Carlton v. Mystic Transp., Inc., 202

 4   F.3d 129, 134 (2d Cir. 2000). At McDonnell Douglas step two, we agree with the district court

 5   that Swiss Re’s RIF constituted a “legitimate non-discriminatory reason” for Friedman’s

 6   termination. See Friedman, 2015 WL 2330149, at *4; see also Delaney, 766 F.3d at 168 (“We

 7   have previously held that a RIF constitutes a legitimate, nondiscriminatory reason for

 8   termination of employment.”).

 9          At McDonnell Douglas step three, Friedman contends that his inclusion in the RIF was a

10   pretext for unlawful age discrimination. See Gross v. FBL Financial Services, Inc., 557 U.S.

11   167, 173 (2009) (interpreting the ADEA to require the plaintiff to show that age was a “but-for”

12   cause of his termination). The district court rejected this argument, and concluded that Swiss Re

13   was entitled to summary judgment as to Friedman’s ADEA claims. See Friedman, 2015 WL

14   2330149, at *6. We disagree.

15          The district court erred in two ways. First, it wrongly determined that certain allegedly

16   ageist comments made by Wieland constituted inadmissible hearsay. See id. at *5. These

17   statements were nonhearsay, as Friedman did not seek to introduce them for their truth, but

18   instead to show bias on the part of Wieland. See Fed. R. Evid. 801(c). Second, the district court

19   failed to consider “the record as a whole, just as a jury would, to determine whether a jury could

20   reasonably find an invidious discriminatory purpose on the part of an employer.” Byrnie v. Town

21   of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001). Instead, the district court viewed

22   each piece of evidence in isolation. See Friedman, 2015 WL 2330149, at *4-5. For instance, the

23   district court discounted the allegation that Swiss Re replaced Friedman with a younger, less-



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 1   qualified employee because “the replacement of an older worker with a younger worker or

 2   workers does not itself prove unlawful discrimination.” Id. at *5 (emphasis added) (quoting

 3   Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999)). But Friedman did not

 4   make this allegation in isolation.     Instead, he bolstered his case with evidence of ageist

 5   comments by superiors at Swiss Re, marshaling statistics indicating that a majority of the

 6   employees terminated pursuant to the RIF (31 of 37) were older than 40 years of age, and noting

 7   a decline in his end-of-year bonus under Wieland’s supervision. Thus, Friedman’s “prima facie

 8   case, combined with [his] additional evidence of pretext . . . , has created material issues of

 9   disputed fact . . . sufficient to survive summary judgment.” Leibowitz v. Cornell Univ., 584 F.3d

10   487, 503 (2d Cir. 2009).

11          We have considered Friedman’s remaining arguments and find them to be without merit.

12   Accordingly, we AFFIRM in part, VACATE in part, and REMAND the March 13, 2015

13   judgment of the district court for further proceedings consistent with this opinion.

14                                                         FOR THE COURT:
15                                                         Catherine O’Hagan Wolfe, Clerk




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