         08-3832-cv
         Kennedy v. Manhattan and Bronx Surface Transit



                                       UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT
     FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 12th day of January, two thousand ten.
 4
 5       PRESENT:
 6                   ROBERT D. SACK,
 7                   ROBERT A. KATZMANN,
 8                               Circuit Judges,
 9                   DENNY CHIN,*
10                               District Judge.
11       _______________________________________________
12
13       Eugene Kennedy,
14
15                                  Plaintiff-Appellant,
16
17                          v.
18                                                                        08-3832-cv
19       Manhattan and Bronx Surface Transit Operating
20       Authority,
21
22                         Defendant-Appellee.**
23       _______________________________________
24       FOR PLAINTIFF-APPELLANT:                Eugene Kennedy, pro se, Fresh Meadows, New
25                                               York.


                      *
                    Hon. Denny Chin, of the United States District Court for the Southern District of
             New York, sitting by designation.
                      **
                           The Clerk of the Court is directed to amend the official caption to read as shown
             above.
 1   FOR DEFENDANT-APPELLEE:                       Baimusa Kamara, Office of the General Counsel,
 2                                                 New York City Transit Authority, Brooklyn, New
 3                                                 York.
 4
 5
 6   Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).
 7
 8
 9       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
10   DECREED that the judgment of said District Court be and hereby is AFFIRMED.
11
12          Appellant Eugene Kennedy appeals from a judgment of the district court granting

13   summary judgment to the Manhattan and Bronx Surface Transit Operating Authority

14   (“MBSTOA”) in his action for employment discrimination. We assume the parties’ familiarity

15   with the facts, proceedings below, and specification of appellate issues.

16          This Court reviews discovery rulings made by the district court for abuse of discretion.

17   See Ind. Order of Foresters v. Donald, Lufkin & Jenrette, 157 F.3d 933, 937 (2d Cir. 1998). We

18   will reverse a discovery ruling only if “the action taken was improvident and affected the

19   substantial rights of the parties.” Goetz v. Crosson, 41 F.3d 800, 805 (2d Cir. 1994) (internal

20   quotation marks omitted). Here, there is no indication that MBSTOA failed to sufficiently

21   respond to Kennedy’s discovery requests. See Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P.

22   26(b)(2)(C)(iii). The magistrate judge thus did not abuse her discretion in refusing to order the

23   defendants to disclose the information requested by Kennedy. Moreover, there is no indication

24   that the magistrate judge’s rulings affected Kennedy’s substantial rights. See Goetz, 41 F.3d at

25   805.

26          We review de novo a district court’s grant of summary judgment, viewing the evidence in

27   the light most favorable to the non-moving party. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d

28   Cir. 2003). We will uphold a summary judgment award only if there are no genuine issues of

29   material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

30   56(c); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
1              Historically, this Court has applied the burden-shifting framework of McDonnell Douglas

2    Corp. v. Green, 411 U.S. 792 (1973), to ADEA claims. See, e.g., Terry, 336 F.3d at 138.

3    However, in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), the Supreme Court

4    concluded that under the plain language of the ADEA, an employee bringing a disparate

5    treatment claim must prove by a preponderance of the evidence that age was the “but-for” cause

6    of the employer’s adverse decision, and not merely one of the motivating factors. Id. at 2351.

7    The Court noted that it “has not definitively decided whether the evidentiary framework of

8    [McDonnell Douglas] . . . is appropriate in the ADEA context.” Id. at 2349 n.2.

9              We need not decide whether to apply McDonnell Douglas in this case or to abandon it in

10   light of Gross. The district court concluded that Kennedy failed to present evidence that would

11   support a finding that his termination was motivated by anything other than what was perceived

12   to be his inadequate work performance. That conclusion was not clearly erroneous.

13   Accordingly, Kennedy neither made out a prima facie case under McDonnell Douglas by

14   evincing evidence to support that he suffered an adverse employment action because of his age,

15   nor carried the burden of proving by a preponderance of the evidence that his age was the “but-

16   for” reason for his termination and that the defendant's stated reason was mere pretext. See

17   Gross, 129 S. Ct. at 2351. We therefore affirm the district court’s judgment for substantially the

18   reasons stated by that court in its memorandum and order.

19             We have considered Kennedy’s other arguments on appeal and have found them to be

20   without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

21
22                                                        FOR THE COURT:
23                                                        Catherine O’Hagan Wolfe, Clerk
24                                                        By:_______________________
25


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