11-2719-cv
DiGirolamo v. MetLife Grp., 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 “summary order”). A party citing 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of August, two thousand twelve.

PRESENT:

           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
           PETER W. HALL,
                                Circuit Judges.
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STEPHEN DIGIROLAMO,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 11-2719-cv

METLIFE GROUP, INC.,

                      Defendant-Appellee.
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FOR APPELLANT:                                    ANNETTE G. HASAPIDIS, Law Offices of Annette G. Hasapidis,
                                                  South Salem, NY.

FOR APPELLEE:                                     JOHN E. KILEY (Christopher J. Collins, on the brief), Kelley Drye &
                                                  Warren LLP, New York, NY.




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         Appeal from an order of the United States District Court for the Southern District of New

York (Richard M. Berman, Judge).

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

DECREED that the June 10, 2011 judgment of the District Court be AFFIRMED.

         DiGirolamo appeals from a summary judgment of the District Court in favor of MetLife

Group, Inc. (“MetLife”). We assume familiarity with the underlying facts and procedural history of this

case.

         This appeal arises out of DiGirolamo’s 2007 demotion and firing by MetLife, for which MetLife

blamed DiGirolamo’s allegedly poor job performance. DiGirolamo alleges that MetLife’s proffered

rationale for his demotion and firing was pretextual, and that MetLife in fact discriminated against him

because of his age (48 years old), in violation of the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621 et seq. (“ADEA”), and the New York State Human Rights Law, (“NYSHRL”), N.Y. Exec. Law

§ 290 et seq. Having properly exhausted his administrative remedies, DiGirolamo brought suit against

MetLife pursuant to the ADEA and the NYSHRL.1

         After completion of discovery, MetLife moved for summary judgment pursuant to Federal Rule

of Civil Procedure 56. The District Court granted the motion on June 6, 2011, holding that

DiGirolamo had failed to show that MetLife’s proffered non-discriminatory reason for his demotion

and firing was a mere pretext and that DiGirolamo would not have been demoted or terminated “but

for” his age.

         On appeal, DiGirolamo alleges that the District Court erred in granting summary judgment for

MetLife.

         “We review de novo the District Court’s decision to grant summary judgment in favor of

defendant[s], and, in the course of that review, we draw all permissible factual inferences in favor of . . .

          1 DiGirolamo originally alleged that MetLife had discriminated against him on the basis of his gender, race, and

national origin as well as his age, but voluntarily dismissed those claims prior to the summary judgment proceedings.
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the non-moving party.” Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009). Summary judgment may

be granted only where no “genuine disputes over material fact exist between the parties which should

properly be submitted to a jury.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001).

Mere “conclusory allegations or unsubstantiated speculation” by the plaintiff will not defeat summary

judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

         ADEA and NYSHRL claims are analyzed under the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106

(2d Cir. 2010) (applying McDonnell Douglas to ADEA claim); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.

2010) (applying McDonnell Douglas to employment discrimination claims under the NYSHRL).2 In order

to make out a claim under the ADEA, appellant must demonstrate at the third stage of the McDonnell

Douglas test that age discrimination was the “but-for” cause of the alleged adverse employment action.3

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).

         We have carefully reviewed the record and the parties’ arguments on appeal, and we conclude

that DiGirolamo has not proffered evidence beyond “conclusory allegations or unsubstantiated

speculation,” Scotto, 143 F.3d at 114, sufficient to raise a triable issue of fact as to whether MetLife’s

alleged age-based discriminatory animus was the “but-for” cause―or, indeed, any cause at all―of his

demotion and firing.



         2   Under the McDonnell Douglas framework, a plaintiff must first make out a prima facie case of discrimination. If he
does so, the employer must put forward a legitimate, nondiscriminatory reason for the challenged adverse employment
action. If the employer is able to do so, the plaintiff must then demonstrate that the employer’s reason is a mere pretext
intended to obscure the employer’s true, illegal rationale. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001). At all times, the plaintiff bears the ultimate burden of persuasion by a preponderance of the evidence. Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The District Court in this case assumed arguendo that DiGirolamo could make
out a prima facie case of discrimination, held that MetLife had proffered a legitimate, nondiscriminatory reason for the alleged
adverse employment action, and focused its attention on the question of pretext.
         3 Although we have not yet decided whether NYSHRL claims of age discrimination require a plaintiff to show that
age was the “but-for” cause of the discrimination, see Waters v. Gen. Bd. of Global Ministries, 769 F. Supp. 2d 545, 559 n.10
(S.D.N.Y. 2011), we agree with the District Court’s holding that DiGirolamo would have failed to demonstrate pretext under
either standard. We therefore leave the question of “but-for” causation and the NYSHRL for another day.

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                                           CONCLUSION

       The June 10, 2011 judgment of the District Court is affirmed, substantially for the reasons stated

in its careful and considered June 6, 2011 Decision and Order.



                                              FOR THE COURT,

                                              Catherine O’Hagan Wolfe, Clerk of Court




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