     15-2587
     Dunaway v. MPCC Corp., et al.

                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of September, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            BARRINGTON D. PARKER,
 8                          Circuit Judges,
 9
10                JANE A. RESTANI,*
11                              Judge.
12
13   - - - - - - - - - - - - - - - - - - - -X
14   Douglas C. Dunaway,
15            Plaintiff-Appellant,
16
17                -v.-                                           15-2587
18
19   MPCC Corp., Joseph Urbinati,
20            Defendants-Appellees.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:                          DONALD L. SAPIR, Sapir Schragin
25                                           LLP, White Plains, NY.

           *   The Honorable Jane A. Restani, Judge for the United
     States Court of International Trade, sitting by designation.
                                                1
 1   FOR APPELLEES:                NICHOLAS M. REITER, Venable LLP,
 2                                 New York, NY.
 3
 4        Appeal from a judgment of the United States District Court
 5   for the Southern District of New York (Román, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 8   DECREED that the judgment of the district court be AFFIRMED.
 9
10        Douglas Dunaway appeals from the judgment of the United
11   States District Court for the Southern District of New York
12   (Román, J.) dismissing the age-discrimination and retaliation
13   complaint on a motion for summary judgment. We assume the
14   parties’ familiarity with the underlying facts, the procedural
15   history, and the issues presented for review.

16        Dunaway applied to be a senior project manager for MPCC Corp.
17   -- a construction general contractor based in New Rochelle, New
18   York -- and was interviewed by its president, Joseph Urbinati.
19   Dunaway avers that in the interview, Urbinati said: that he was
20   looking for an employee who would stay for 10 to 15 years; asked
21   Dunaway his age (he was 65 but responded only that he was “up
22   in years” and in good physical condition); mentioned Urbinati’s
23   septuagenarian father who was no longer running the company,
24   though he remained involved with it; and asked Dunaway whether
25   he was “capable of withstanding the vigors [sic] of the
26   position.” Urbinati did not hire Dunaway, and (consistent with
27   company practice) he did not notify Dunaway that his application
28   was rejected, but he continued seeking candidates for the
29   position.

30        About a month after the interview, Dunaway filed an
31   age-discrimination complaint with the New York State Division
32   of Human Rights (“NYSDHR”), which determined that there was no
33   probable cause to believe that the rejection was discriminatory,
34   and dismissed the complaint.

35        This suit against Urbinati and MPCC pleads a failure-to-hire
36   claim under the Age Discrimination in Employment Act (“ADEA”)
37   and, in the alternative, a retaliation claim under the New York
38   Human Rights Law (“NYHRL”) alleging that Urbinati rejected
39   Dunaway’s application in retaliation for the NYSDHR complaint.

                                     2
 1        The district court (Román, J.) dismissed the suit on summary
 2   judgment, holding that Dunaway failed to make a prima facie case
 3   of discrimination under the familiar burden-shifting framework
 4   of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

 5        We review de novo the district court’s grant of summary
 6   judgment, drawing all inferences in favor of the non-moving
 7   party. Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.
 8   1998).

 9        The ADEA makes it unlawful for an employer “to fail or refuse
10   to hire . . . any individual . . . because of such individual’s
11   age.” 29 U.S.C. § 623(a)(1). ADEA claims are analyzed under
12   the McDonnell Douglas burden-shifting framework: the plaintiff
13   first must make out a prima facie case of unlawful
14   discrimination; the burden of production then shifts to the
15   defendant to proffer non-discriminatory motivation for the
16   challenged action; and, finally, the burden of production
17   returns to the plaintiff to show that the non-discriminatory
18   motivation was mere pretext for discrimination. 411 U.S. at
19   802. See also, e.g., Bucalo v. Shelter Island Union Free Sch.
20   Dist., 691 F.3d 119, 128-129 (2d Cir. 2012).

21        To establish a prima facie case of age discrimination, the
22   plaintiff must show (1) that he was within the protected age
23   group, (2) that he was qualified for the position, (3) that he
24   experienced an adverse employment action, and (4) that the action
25   occurred under circumstances giving rise to an inference of
26   discrimination. Id. at 129. The parties agree that the first
27   three requirements are satisfied. The district court ruled that
28   the fourth requirement was not. We agree.

29        Urbinati made several references to age, direct and
30   indirect, when he interviewed Dunaway. The ADEA, however, “does
31   not make all discussion of age taboo.” Raskin v. Wyatt Co., 125
32   F.3d 55, 63 (2d Cir. 1997). “[A]n employer’s concern about the
33   economic consequences of employment decisions,” such as the
34   likelihood of an employment candidate’s retirement within a
35   short timeframe, “does not constitute age discrimination under
36   the ADEA, even though there may be a correlation with age.”
37   Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997).
38   More broadly, employers may consider factors that “are


                                     3
 1   empirically intertwined with age” without violating the ADEA
 2   “so long as they are motivated by ‘some feature other than the
 3   employee’s age.’” Id. (quoting Hazen Paper Co. v. Biggins, 507
 4   U.S. 604, 609 (1993)).

 5        There are quibbles as to what was said (which we must resolve
 6   in Dunaway’s favor); but by either party’s account, the questions
 7   were germane to the probable length of Dunaway’s potential
 8   employment and his fitness to do the job. It is also undisputed
 9   that MPCC employed workers of similar age or older than Dunaway,
10   and that after he was passed over for a position as senior project
11   manager, a candidate who was hired was only one year younger.
12   Even if a jury credits Dunaway’s account of Urbinati’s
13   questioning, those circumstances do not give rise to an inference
14   that Urbinati had a discriminatory motive not to hire him. The
15   district court therefore did not err by concluding that Dunaway
16   failed to make out a prima facie case of age discrimination.

17        As for Dunaway’s NYHRL retaliation claim, a similar analysis
18   applies. “The law governing ADEA claims has been held to be
19   identical to that governing claims made under the NYHRL.”
20   Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d
21   Cir. 2010). Dunaway has not established a genuine issue of fact
22   as to whether the decision not to hire him occurred before or
23   after Urbinati received notice of his NYSDHR complaint, and the
24   circumstances do not give rise to an inference that Urbinati
25   had a retaliatory motive when he decided not to hire him.

26        Accordingly, and finding no merit in Dunaway’s other
27   arguments, we hereby AFFIRM the judgment of the district court.

28                                 FOR THE COURT:
29                                 CATHERINE O’HAGAN WOLFE, CLERK




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