           09-1012-cv
           Phillips v. Centrix Inc.


                                    UNITED STATES COURT OF APPEALS
                                          F OR T HE S ECOND C IRCUIT

                                                   SUMMARY ORDER

R ULINGS   BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .    C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S    L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A   LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO    THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILA BLE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WIT HO UT PAYMENT OF FEE    ( SUCH   AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOURTS . GOV /).
IF   NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .


                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 1 st day of December, two thousand and nine.

           Present: ROBERT D. SACK,
                    RICHARD C. WESLEY,
                                  Circuit Judges,
                    JOHN F. KEENAN,
                                  District Judge. *
           __________________________________________________

           PAUL J. PHILLIPS,

                                          Plaintiff-Appellant,

                           - v. -                                                      (09-1012-cv)

           CENTRIX INC.,

                             Defendant-Appellee.
           __________________________________________________




           *
              The Honorable John F. Keenan, United States District Court for the Southern
           District of New York, sitting by designation.
     For Appellant:                THOMAS W. BUCCI, Willinger
                                   Willinger & Bucci P.C.,
                                   Bridgeport, Connecticut.

     For Appellee:                 MICHAEL J. SOLTIS, Jackson Lewis
                                   LLP, Stamford, Connecticut.


          Appeal from the United States District Court for the
     District of Connecticut (Bryant, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the February 13, 2009 order of the United

 3   States District Court for the District of Connecticut is

 4   AFFIRMED.

 5       Plaintiff appeals from an order of the United States

 6   District Court for the District of Connecticut (Bryant, J.),

 7   which granted summary judgment in defendant’s favor on his

 8   discrimination claim under the Age Discrimination in

 9   Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.,

10   and declined to exercise supplemental jurisdiction over the

11   remaining state-law claim in the complaint.     We presume the

12   parties’ familiarity with the underlying facts, the

13   procedural history of the case, and the issues on appeal.

14       We review de novo a grant of summary judgment, and ADEA

15   claims in this Circuit are analyzed under the three-step

16   framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

17   (1973).     See, e.g., Leibowitz v. Cornell Univ., 584 F.3d

                                     2
 1   487, 2009 WL 3403147, at *8 (2d Cir. Oct. 23, 2009).       There

 2   is no dispute here regarding the first two steps under

 3   McDonnell Douglas:    plaintiff established a prima facie case

 4   of age discrimination, and defendant satisfied its

 5   production burden of articulating a legitimate, non-

 6   discriminatory reason for plaintiff’s termination.     See

 7   D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir.

 8   2007) (per curiam).

 9       The focus of this appeal, then, is on the third step of

10   the McDonnell Douglas framework, i.e., the existence of

11   discrimination vel non.    See Holtz v. Rockefeller & Co., 258

12   F.3d 62, 77 (2d Cir. 2001) (citing Reeves v. Sanderson

13   Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).    In order

14   to survive summary judgment at this stage of the analysis, a

15   plaintiff must adduce sufficient evidence to support a

16   reasonable inference “that age was the ‘but-for’ cause of

17   the employer’s adverse action.”    Gross v. FBL Fin. Servs.,

18   Inc., 129 S. Ct. 2343, 2351 (2009); see also Leibowitz, 2009

19   WL 3403147, at *8 n.2.

20       Viewing the record as a whole, we conclude that

21   plaintiff has not satisfied this standard.    First, the

22   statistical evidence cited by plaintiff is not probative of


                                    3
 1   but-for causation with respect to the adverse employment

 2   action at issue.   Cf. Radue v. Kimberly-Clark Corp., 219

 3   F.3d 612, 616 (7th Cir. 2000) (“[S]tatistics can only show a

 4   relationship between an employer’s decisions and the

 5   affected employees’ traits; they do not show causation.”).

 6   Second, the two remarks by defendant’s employees that are

 7   cited by plaintiff — neither of which were directed at him —

 8   reflect little, if any, age-based discriminatory animus.

 9   Indeed, plaintiff conceded in the proceedings below that

10   these remarks were insufficient to establish even a prima

11   facie case of age discrimination, which is a burden that we

12   have described as “de minimis,” Abdu-Brisson v. Delta Air

13   Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).

14       Finally, we find unpersuasive plaintiff’s emphasis on

15   defendant’s explanation for its decision not to terminate a

16   younger employee who had assumed some of plaintiff’s job

17   responsibilities in April 2006.   Assuming, arguendo, that

18   plaintiff’s supervisor recommended that plaintiff be

19   terminated in late 2005, and that the same supervisor

20   reassigned some of plaintiff’s job responsibilities to a

21   younger employee in April 2006, there nevertheless remains a

22   paucity of evidence that either of those decisions was


                                   4
 1   motivated by plaintiff’s age rather than the business

 2   reasons articulated by defendant.

 3       Simply put, a factfinder could not rationally conclude

 4   from the sum of the evidence in the record that

 5   discrimination based on plaintiff’s age was the “but-for”

 6   cause of his termination.   We have reviewed plaintiff’s

 7   remaining arguments and find them to be without merit.

 8   Accordingly, the February 13, 2009 order of the district

 9   court is hereby AFFIRMED.
10
11                               For the Court
12                               Catherine O’Hagan Wolfe, Clerk
13
14
15                               By: ______________________
16




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