     17-2242
     Benson v. Family Dollar Operations, 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 ASUMMARY 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
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 13th day of November, two thousand eighteen.
 4
 5   PRESENT:
 6               RALPH K. WINTER,
 7               ROSEMARY S. POOLER,
 8                     Circuit Judges,
 9               RONNIE ABRAMS,*
10                     District Judge.
11   _____________________________________
12
13   Christopher R. Benson,
14
15                               Plaintiff-Appellant,
16
17                      v.                                                            17-2242
18
19   Family Dollar Operations, Inc.,
20
21                               Defendant-Appellee.1
22
23   _____________________________________
24
25   For Appellant:                        Christopher Benson, pro se, Rome, N.Y.
26
27   For Appellee:                         Alan J. Pierce, Robert C. Whitaker, Jr., Hancock Estabrook
28                                         LLP, Syracuse, N.Y.

     * Judge Ronnie Abrams, of the United States District Court for the Southern District of New
     York, sitting by designation.
     1
      The clerk of the Court is directed to amend the caption as above.
1    Appeal from the United States District Court for the Northern District of New York (Mordue, J.).


 2        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 3   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
 4
 5           Appellant Christopher Benson, pro se, appeals from the order of the United States District
 6   Court for the Northern District of New York (Mordue, J.) granting Appellee’s motion for summary
 7   judgment. Benson also appeals from a number of decisions made by the district court during trial
 8   regarding, inter alia, evidence and jury instructions. Benson’s age and disability discrimination
 9   claims were resolved on the motion for summary judgment, while his retaliation claim was tried to
10   a jury. We assume the parties’ familiarity with the underlying facts, the procedural history of the
11   case, and the issues on appeal. For the following reasons, we affirm the district court on all grounds.
12
13       I. Age and Disability Discrimination
14           We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and
15   draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120,
16   126–27 (2d Cir. 2013). “Summary judgment is proper only when, construing the evidence in the
17   light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the
18   movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d
19   Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
20
21                  A. Age
22          The McDonnell Douglas framework applies to claims under the Age Discrimination in
23   Employment Act (“ADEA”). Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128-29
24   (2d Cir. 2012). Under McDonnell Douglas, after a plaintiff establishes a prima facie case of
25   discrimination, the employer must demonstrate a legitimate, non-discriminatory reason for the
26   adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
27   Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). If the employer does so, the
28   burden then shifts back to the plaintiff to show a triable issue as to whether age was the but-for
29   cause of the employer’s adverse action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78
30   (2009); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010). Claims of age
31   discrimination under the New York State Human Rights Law (“NYSHRL”) are analyzed under the
32   same standards as ADEA claims. Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. Sch. Dist.,
33   374 F.3d 66, 70 n.2 (2d Cir. 2004).
34
35           The district court correctly granted summary judgment to Family Dollar on the age
36   discrimination claim. We assume, as the district court did, that Benson established a prima facie
37   case. Family Dollar presented evidence that Benson’s demotion was a part of a department-wide
38   reorganization, that promotions were based on work performance and leadership qualities, and that
39   it did not consider age in its decision-making process. At step three of McDonnell Douglas, Benson
40   failed to show a triable issue as to whether age was the but-for cause of his demotion. The evidence
41   he offered—his own statistical analysis of the number of employees, the number of promoted

                                                       2
 1   employees, and the percentage of those categories over age 40—was insufficient. First, it was
 2   unreliable because there were only 41 employees in Benson’s department and only 13 promotions
 3   made in the reorganization. See Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 121 (2d Cir.
 4   1997) (“The smaller the sample, the greater the likelihood that an observed pattern is attributable
 5   to other factors and accordingly the less persuasive the inference of discrimination to be drawn from
 6   it.”). Second, the statistics do not reveal any information about the performance reviews or
 7   assessments that were considered by Family Dollar in making its decisions. Without evidence
 8   showing that the younger, promoted employees were similarly situated to the older, demoted
 9   employees, these statistics do not raise a genuine dispute of material fact. See Graham v. Long
10   Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (“A plaintiff may raise such an inference [of
11   discrimination] by showing that the employer subjected him to disparate treatment, that is, treated
12   him less favorably than a similarly situated employee outside his protected group.”); Norville v.
13   Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999) (holding that similarly situated means
14   being subject to the same performance standards and engaging in the same conduct). Family Dollar
15   is entitled to judgment as a matter of law regarding the age discrimination claim.
16
17                   B. Disability
18           The district court also correctly granted summary judgment to Family Dollar on Benson’s
19   disability discrimination claim. Disability discrimination claims under the Americans with
20   Disabilities Act (“ADA”) are also analyzed under the McDonnell Douglas framework. Sista v. CDC
21   Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Here, if an employer presents a legitimate, non-
22   discriminatory reason for the adverse action, “the plaintiff must then produce evidence and carry
23   the burden of persuasion that the proffered reason is a pretext.” Cortes v. MTA N.Y.C. Transit, 802
24   F.3d 226, 231 (2d Cir. 2015) (quoting Sista, 445 F.3d at 169). Claims of disability discrimination
25   under the NYSHRL are analyzed under the same standards as an ADA disparate treatment claim.
26   Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000).
27
28           As discussed above, Family Dollar presented a legitimate, non-discriminatory reason for
29   the reorganization. Benson’s statistics were too unreliable and lacked sufficient detail to show that
30   the reorganization was a pretext for disability discrimination. See Norville, 196 F.3d at 96; Pollis,
31   132 F.3d at 121. Further, the few instances of negative treatment Benson cited were not sufficient
32   to raise a question of material fact on the issue of pretext. A Family Dollar executive admonished
33   him about taking an insulin shot at a dinner table and was less friendly to Benson afterward, and
34   another executive once grimaced at the sight of Benson taking an insulin shot. But a single comment
35   is insufficient to present a triable issue as to discriminatory motive. See Abdu-Brisson v. Delta Air
36   Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (noting that stray remarks, even those made by a
37   “decision-maker,” are not sufficient to defeat summary judgment). Likewise, a one-time grimace
38   does not a triable issue make. Benson does point to additional incidents: his direct supervisor
39   cancelled a business trip for Benson when he was recovering from back surgery, and Benson was
40   not assigned to train any new employees after the surgery. But he presented no evidence that
41   similarly situated, healthy employees were training new employees at that time. These incidents,
42   considered together, fail to raise a genuine dispute of material fact as to pretext. See Weinstock, 224


                                                       3
 1   F.3d at 41 (“A dispute regarding a material fact is genuine if the evidence is such that a reasonable
 2   jury could return a verdict for the nonmoving party.” (internal quotation marks omitted)).
 3
 4        II. Motion in Limine Rulings
 5            We review evidentiary rulings for abuse of discretion, reversing only for manifest error.
 6   Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010). “A district court abuses its discretion
 7   when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
 8   evidence, or renders a decision that cannot be located within the range of permissible decisions.”
 9   United States v. Vayner, 769 F.3d 125, 129 (2d Cir. 2014) (quoting Porter v. Quarantillo, 722 F.3d
10   94, 97 (2d Cir. 2013)). “[A]n evidentiary ruling that is an abuse of discretion is . . . only reversible
11   if it also affects a party’s substantial rights,” which “requires an assessment of the likelihood that
12   the error affected the outcome of the case.” Manley v. AmBase Corp., 337 F.3d 237, 248 (2d Cir.
13   2003) (alteration in original) (internal quotation marks omitted).
14
15           A. Audio Recordings
16           Benson challenges the district court’s limitation on the use of audio recordings to
17   impeachment and rebuttal only. But this is not reversible error. Even if the district court had erred
18   by limiting the use of audio recordings, it did not affect the outcome of the case. Benson’s counsel
19   introduced a transcript of one audio recording that the parties had stipulated to during Benson’s
20   direct examination. Further, his counsel stated that she intended to use the other recordings for
21   impeachment and rebuttal purposes only and, in fact, did so. Thus, the district court’s restriction of
22   the audio recordings did not affect the outcome of the case because Benson’s counsel was able to
23   use the recordings as she originally planned.
24
25            B. Watchlist Evidence
26            Benson also challenges the district court’s exclusion of evidence concerning Family
27   Dollar’s placement of Benson on a “watchlist” in 2013, two years after he had been fired. The
28   district court did not abuse its discretion by excluding the evidence. “Irrelevant evidence is not
29   admissible.” Fed. R. Evid. 402. Relevant evidence is evidence that “has any tendency to make a
30   fact more or less probable than it would be without the evidence” and “the fact is of consequence
31   in determining the action.” Fed. R. Evid. 401(a)–(b). The watchlist evidence would not have been
32   consequential because it concerned events that happened two years after Benson was fired. In rare
33   circumstances, events occurring after a plaintiff no longer works for an employer are relevant to
34   employment discrimination suits, but this is usually limited to where the employer damages a
35   plaintiff’s ability to seek future job opportunities or his reputation. See Wanamaker v. Columbian
36   Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (considering whether employer retaliated against
37   plaintiff in violation of ADEA after his termination). Here, there was no evidence that the watchlist
38   was shared with anyone who could impact Benson’s future job opportunities. Nor did it affect his
39   reputation because the only former colleague with whom it was shared was the executive who had
40   fired Benson in 2011.
41
42
43

                                                       4
 1        III. Steering Committee Meeting Evidence
 2           Benson also challenges Family Dollar’s introduction of evidence that he had inappropriately
 3   behaved during meetings of his department’s steering committee, arguing that none of the witnesses
 4   had previously given testimony on this issue and it had otherwise not been addressed in discovery.
 5   Because Benson’s counsel did not object, this Court reviews for plain error. See United States v.
 6   Edwards, 342 F.3d 168, 179 (2d Cir. 2003). Under plain error review, this Court has “discretion to
 7   correct a forfeited trial error if that error was obvious or plain, affected [a party’s] substantial rights,
 8   and seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id.
 9   (internal quotation marks and citation omitted; second alteration in original).
10
11          Here, any error was not plain. Family Dollar’s summary judgment evidence referred to
12   Benson’s general behavioral issues, and its opening statement at trial specifically mentioned his
13   behavior during steering committee meetings. Benson’s counsel did not object to Family Dollar’s
14   opening statement, and Benson’s own witness testified about the steering committee disruptions at
15   the prompting of Benson’s counsel. Further, Benson concedes that his counsel had the opportunity
16   to cross-examine the other witnesses on this issue. Because Benson’s own witness provided
17   testimony about his steering committee behaviors and his counsel had the opportunity at trial to
18   cross-examine the other witnesses, any error in permitting this testimony did not affect his
19   substantial rights. See United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008) (“An error affects a
20   defendant’s substantial rights if it is prejudicial and it affected the outcome of the district court
21   proceedings.” (internal quotation marks omitted)).
22
23        IV. Summation, Jury Instructions, and Verdict Form
24           Finally, Benson challenges as prejudicial the portion of Family Dollar’s summation that
25   stated that the sole liability issue was whether he would not have been fired if not for his protected
26   activity. He argues that the district court’s jury charge and special verdict sheet were similarly
27   erroneous. Benson’s counsel did not object to this representation of the sole liability issue at any
28   point on the record before us. We review the summation for plain error and reverse only where the
29   error “[is] so serious and flagrant that it goes to the very integrity of the trial.” Pescatore v. Pan
30   Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996) (alternation in original) (internal quotation
31   marks omitted). Similarly, we review unpreserved errors in jury instructions and verdict sheets for
32   fundamental error. Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002). An error in jury
33   instructions or a verdict sheet is unpreserved “when a litigant has not complied with the Fed. R.
34   Civ. P. 51 objection requirements.” Id. Rule 51 requires the district court to give the parties “an
35   opportunity to object on the record and out of the jury’s hearing before the instructions and
36   arguments are delivered,” but it also requires any party who objects to do so “on the record, stating
37   distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P. 51(b)(2), (c)(1).
38   Parties must make such objections, at the latest, “promptly after learning that the instruction or
39   request will be, or has been, given or refused.” Fed. R. Civ. P. 51(c)(2)(B).
40
41           There was no error in the jury charge. It properly defined adverse acts as acts that “might
42   well have discouraged a reasonable worker from complaining about discrimination or retaliation .
43   . . [and p]etty slights or minor annoyances do not qualify as a material adverse action.” See

                                                         5
 1   Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (explaining that an adverse act
 2   “in [the retaliation] context means it well might have dissuaded a reasonable worker from making
 3   or supporting a charge of discrimination” (internal quotation marks omitted)); Tepperwien v.
 4   Entergy Nuclear Operations, Inc., 663 F.3d 556, 571 (2d Cir. 2011) (noting that “trivial harms” and
 5   “petty slights or minor annoyances” do not constitute adverse acts) (internal quotation marks
 6   omitted). Furthermore, the district court’s statement that the jury need only find that the termination
 7   was not retaliatory to find for Family Dollar occurred when the court read the verdict sheet aloud.
 8   Thus, error (if any) goes to the verdict sheet, not the jury charge.
 9
10           To the extent there was error in the district court’s decision to limit the verdict sheet to
11   reference only Benson’s termination or, given that the charge conference was held off the record,
12   any procedural error under Rule 51(b)(2), any such errors were not so fundamental as to warrant
13   reversal here. The verdict form omitted questions about the non-termination acts Benson alleged
14   were retaliatory, and Benson is correct that those acts could be considered retaliatory on their own.
15   See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. But Benson’s counsel did not object to the
16   failure to include such adverse actions on the verdict form on the record—as she would have had
17   to do to preserve any claim of error. Instead, she chose to argue in her summation that the other
18   purportedly adverse actions culminated in Benson’s termination. Moreover, because the jury found
19   that Family Dollar had not retaliated against Benson by firing him, it appears unlikely that the jury
20   would have found any of Family Dollar’s other acts—meetings, write-ups, work assignments,
21   performance reviews—to be retaliatory. Therefore, the verdict sheet and the Family Dollar
22   summation that relied on it did not create an error so fundamental that it affected the trial’s integrity.
23   See Lavin-McEleney v. Marist Coll., 239 F.3d 476, 483 (2d Cir. 2001).
24
25           We have considered all of Benson’s remaining arguments and find them to be without merit.
26   For the foregoing reasons, the judgment of the district court is AFFIRMED.
27
28                                                   FOR THE COURT:
29                                                   Catherine O’Hagan Wolfe, Clerk of Court




                                                        6
