09-2770-cv
White v. Eastman Kodak Company

                                    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 3rd day of March, two thousand ten.

PRESENT:
                     JOSÉ A. CABRANES,
                     BARRINGTON D. PARKER,
                                  Circuit Judges,
                     STEFAN R. UNDERHILL,*
                                  Judge.

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PHILLIP WHITE ,

                     Plaintiff-Appellant,

                     v.                                                            09-2770-cv

EASTMAN KODAK COMPANY ,

                     Defendant-Appellee.

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FOR APPELLANT:                                                 CHRISTINA A. AGOLA, Rochester, NY.

FOR APPELLEES:                                                 MARION BLANKOPF, Nixon Peabody LLP,
                                                               Rochester, NY.


          *
         The Honorable Stefan R. Underhill, of the United States District Court of the District of
Connecticut, sitting by designation.

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Appeal from a judgment of the United States District Court for the Western District of New York
(Charles J. Siragusa, Judge).

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

        Plaintiff-appellant Phillip White appeals from a June 1, 2009 judgment of the District Court,
which granted summary judgment for defendant, Eastman Kodak Company (“Kodak”). On appeal,
White argues that the District Court erred in granting summary judgment for Kodak because (1)
White established a prima facie case of unlawful retaliation by Kodak in violation of Title VII, 42
U.S.C. § 2000 et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law and (2) the
District Court did not consider White’s arguments that Kodak’s purported reason for firing him was
pretextual. We assume the parties’ familiarity with the facts and procedural history of this case.

       We review a district court’s decision to grant summary judgment de novo, drawing all
reasonable factual inferences in favor of the non-moving party. See, e.g., Paneccasio v. Unisource
Worldwide, Inc., 532 F.3d 101, 107 (2d Cir. 2008). Summary judgment is appropriate only “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed R. Civ. P. 56(c).

         Courts evaluate Title VII claims using the burden-shifting framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).1 To state a claim for retaliation in violation of Title VII, a
plaintiff must first establish a prima facie case of retaliation. See, e.g., Kessler v. Westchester County Dep’t
of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). To establish a prima facie case of retaliation, a
plaintiff must present evidence sufficient to permit a rational trier of fact to find that (1) he engaged
in an activity protected by Title VII, (2) the employer was aware of this activity, (3) the employer
took adverse action against the employee, and (4) there is a casual connection between the protected
activity and the adverse action. Id. at 205-06. If the plaintiff establishes his prima facie case, the
burden shifts to the employer, who must then articulate a legitimate, non-retaliatory reason for the
adverse action. See, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498-99 (2d Cir. 2009). If the
employer carries that burden, “the burden shifts back to the plaintiff to demonstrate by competent
evidence that the legitimate reasons offered” by the employer was a mere pretext for discrimination.


        1
          The same elements constitute a claim for employment discrimination under 42 U.S.C. §
1981 as constitute a claim under Title VII. Hudson v. Int’l Business Machines Corp., 620 F.2d 351, 254
(2d Cir. 1980). Claims under the New York State Human Rights Law are analyzed under the same
framework as claims under Title VII. See, e.g., Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir.
2006).

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Id. at 499 (quotation marks omitted).

         Here, the District Court concluded that White failed to establish a prima facie case of
retaliation because he failed to show a causal connection between his termination and his protected
activity. The District Court then concluded, in the alternative, that even if White had established a
prima facie case, he failed to establish that the legitimate reason Kodak stated for his firing—namely,
that he falsified data in Kodak’s customer database—was only a pretext for retaliation.

        Upon our independent review of the record, we agree with the District Court that, assuming
arguendo that White established a prima facie case of retaliation, he failed “to demonstrate by
competent evidence,” Leibowitz, 584 F.3d at 499, that Kodak’s stated reason for firing White was a
pretext for retaliation. Although White argues at length that Kodak’s asserted reason for firing him
was pretextual, he presents no evidence to support this allegation. Moreover, as the District Court
noted, “he does not address Kodak’s charge that he falsely claimed to have contacted customers
when the phone records clearly showed he had not.” White v. Eastman Kodak, No. 06-CV-6493-CJS,
2009 U.S. Dist. LEXIS 45335, at *34 (W.D.N.Y. May 29, 2009). Because White fails to rebut
adequately Kodak’s legitimate reason for firing him, we conclude that the District Court did not err
in granting summary judgment for Kodak.

                                         CONCLUSION

       For the reasons stated above, the judgment of the District Court is AFFIRMED.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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