     14-4109
     Grasso v. EMA Design

                            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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Brenda Grasso,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-4109
17
18       EMA Design Automation, Inc., and
19       Emmanuel Marcano,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  Judge Geoffrey W. Crawford, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             Ryan C. Woodworth, The Woodworth
 2                              Law Firm, Rochester, New York.
 3
 4   FOR APPELLEES:             Scott D. Piper, Harris Beach
 5                              PLLC, Pittsford, New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Western District of New York (Telesca, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Plaintiff-appellant Brenda Grasso appeals from the
15   judgment of the United States District Court for the Western
16   District of New York (Telesca, J.), granting summary
17   judgment in favor of defendants-appellees EMA Design
18   Automation, Inc., and Emmanuel Marcano. We assume the
19   parties’ familiarity with the underlying facts, the
20   procedural history, and the issues presented for review.
21
22        1.  Plaintiff’s job was eliminated and she was
23   terminated. She claims that this was retaliation against
24   her for engaging in protected activity (filing an
25   administrative complaint of discrimination) under Title VII.
26   See 42 U.S.C. § 2000e-3. We disagree.
27
28        To establish a prima facie case of retaliation under
29   the burden-shifting framework set forth in McDonnell Douglas
30   Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must show
31   “1) participation in a protected activity; 2) the
32   defendant's knowledge of the protected activity; 3) an
33   adverse employment action; and 4) a causal connection
34   between the protected activity and the adverse employment
35   action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844
36   (2d Cir. 2013) (citations and quotation marks omitted).
37
38        “Once the plaintiff has established a prima facie
39   showing of retaliation, the burden shifts to the employer to
40   articulate some legitimate, non-retaliatory reason for the
41   employment action.” Id. at 845. “For the case to continue,
42   the plaintiff must then come forward with evidence that the
43   defendant's proffered, non-discriminatory reason is a mere
44   pretext for actual discrimination.” Weinstock v. Columbia
45   Univ., 224 F.3d 33, 42 (2d Cir. 2000). The plaintiff must
46   demonstrate that “the desire to retaliate was the but-for
47   cause of the challenged employment action.” Univ. of Texas

                                  2
 1   Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
 2   However, “‘but-for’ causation does not require proof that
 3   retaliation was the only cause of the employer's action, but
 4   only that the adverse action would not have occurred in the
 5   absence of the retaliatory motive.” Kwan 737 F.3d at 845-46
 6   (citing Nassar, 133 S. Ct. at 2526, 2533).
 7
 8        Plaintiff has failed to raise a triable issue of fact
 9   that defendant’s legitimate, non-retaliatory reasons were
10   pretextual.
11
12        It is undisputed that between 2009 and 2011, defendant
13   experienced the effects of an economic recession that caused
14   its revenues to decline and led to cuts to its workforce,
15   including the termination of more than a quarter of its
16   employees between 2009 and 2010. Defendants stated that the
17   reason plaintiff’s position was eliminated was because of
18   this financial distress and because they realized they could
19   operate efficiently without plaintiff’s position.
20
21        Moreover, it is further undisputed that plaintiff
22   turned down defendant’s offer of a different position after
23   her original position was eliminated and that plaintiff had
24   not been coming to work in the days leading up to her
25   termination despite a doctor’s note stating she could
26   return.
27
28        A company-wide reduction in force is a legitimate non-
29   discriminatory reason for employment termination, see
30   Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir.
31   2014), and refusal to appear for a job or perform job duties
32   is a legitimate, nondiscriminatory reason for adverse
33   employment action, see Van Zant v. KLM Royal Dutch Airlines,
34   80 F.3d 708, 714 (2d Cir. 1996). Plaintiff’s position was
35   eliminated as part of a reduction in force due to economic
36   concerns, she refused to accept the new position that was
37   offered to her, and she was no longer coming to work.
38   Plaintiff points to no record evidence that defendants’
39   legitimate reasons for her termination were pretextual.
40
41        Although plaintiff is correct that the elimination of
42   her position and her subsequent termination were close in
43   time to her filing the discrimination complaint,1 this is


         1
              Plaintiff also claims that she engaged in
     protected activity in an April 19, 2010 meeting in which she
                                  3
 1   not enough to raise a triable issue of fact as to pretext.
 2   See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d
 3   Cir. 2010) (“The temporal proximity of events may give rise
 4   to an inference of retaliation for the purposes of
 5   establishing a prima facie case of retaliation under Title
 6   VII, but without more, such temporal proximity is
 7   insufficient to satisfy appellant's burden to bring forward
 8   some evidence of pretext.”).
 9
10        For the foregoing reasons, and finding no merit in
11   Grasso’s other arguments, we hereby AFFIRM the judgment of
12   the district court.
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16




     asked defendant if he would “treat a man” in the same way he
     was allegedly treating her. Regardless of whether this was
     protected activity, see Grant v. Hazelett Strip-Casting
     Corp., 880 F.2d 1564, 1569 (2d Cir. 1989), it does not
     change the analysis that plaintiff has put forward no
     evidence that defendants’ reasons were pretextual.
                                  4
