   18‐2747
   Hess v. Mid Hudson Valley StaffCo LLC

                           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.

          At a stated term of the United States Court of Appeals for the Second Circuit,
   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
   City of New York, on the 30th day of August, two thousand nineteen.

   PRESENT:
                  PETER W. HALL,
                  DEBRA ANN LIVINGSTON,
                       Circuit Judges,
                  JANE A. RESTANI,
                       Judge.*


   MARY HESS,

                          Plaintiff-Appellant,

                  v.                                                      No. 18-2747-cv

   MID HUDSON VALLEY STAFFCO LLC,

                          Defendant-Appellee.




   For Plaintiff-Appellant:                      MICHAEL H. SUSSMAN,            Sussman    &
                                                 Watkins, Goshen, NY.



   *Judge Jane A. Restani, of the United States Court of International Trade, sitting by
   designation.
For Defendant-Appellee:                    BRIAN J. CLARK, (Allison B. Gotfried, on
                                           the brief), VENABLE LLP, New York, NY.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Karas, J.).

      UPON      DUE       CONSIDERATION,         IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

      Mary Hess appeals from a judgment of the United States District Court for the

Southern District of New York entered on August 31, 2018, granting Mid Hudson

Valley StaffCo LLC’s (“StaffCo”) motion for summary judgment on her employment

discrimination claim pursuant to the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621. Hess argues she presented evidence of ageism which

demonstrated that but-for her age she would not have been terminated. We assume

the parties’ familiarity with the underlying facts, the procedural history, and the

arguments presented on appeal.

      We review de novo a district court’s grant of summary judgment, construing

the evidence in the light most favorable to the nonmoving party. Lovejoy-Wilson v.

NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001). We will affirm only if “there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). Hess’s assertion that she offered evidence

of ageist comments demonstrating that she was terminated due to her age is

unavailing.   The district court properly granted StaffCo’s motion for summary

judgment.


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      We analyze an age discrimination claim under the burden-shifting framework

in McDonnell Douglas v. Green, 411 U.S. 792, 802–03 (1973).1 To prevail on such a

claim, the plaintiff must establish by a preponderance of the evidence that age

discrimination was the but-for cause of the challenged adverse employment action.

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010).

      Assuming, arguendo, that Hess established a prima facie case of age

discrimination, StaffCo articulated a legitimate, non-discriminatory reason for her

termination—Hess’s poor performance, during a concentrated period of time, which

posed risks to patient safety and confidentiality. StaffCo’s proffered explanation was

supported by evidence of Hess’s performance issues, including one instance when a

fax signed by Hess containing confidential information for two patients was faxed to

an unauthorized local business and several other incidents involving chart

documentation. Hess, moreover, does not dispute that those incidents occurred;

rather, she takes issue with how those events are described, or whether she had a

valid excuse for her behavior.      The evidence in the record that Hess argues

demonstrates pretext—remarks made by her supervisor and manager—without

more, fail to demonstrate a discriminatory animus. See Danzer v. Norden Sys., Inc.,

151 F.3d 50, 56 (2d Cir. 1998) (“[S]tray remarks alone do not support a discrimination




1 “Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a
preponderance of the evidence a prima facie case of discrimination; it is then the
defendant’s burden to proffer a legitimate non-discriminatory reason for its actions;
the final and ultimate burden is on the plaintiff to establish that the defendant’s
reason is in fact pretext for unlawful discrimination.” Abrams v. Dep’t of Pub. Stafety,
764 F.3d 244, 251 (2d Cir. 2014).
                                           3
suit.”) (internal quotation marks omitted). Consequently, the district court properly

granted StaffCo’s motion for summary judgment.

      The court has considered Hess’s other arguments and finds them to be without

merit. Accordingly, the district court’s judgment is AFFIRMED.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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