19

- 3924

- cv McEvoy v. Fairfield University

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 NO TATION “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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 2 of New York, on the 1 7 t h day of F e b r u a r y , two thousand twenty

- one

. 3 4 PRESENT: BARRINGTON D. PARKER, 5 RAYMOND J. LOHIER , JR., 6 STEVEN J. MENASHI , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 SHARLENE MCEVOY , 10 11 Plaintiff

- Appellant , 12 13

v. 19

- 3924

- cv 14 15 FAIRFIELD UNIVERSITY , 16 17 Defendant

- Appellee

. 18

------------------------------------------------------------------ 19 202 FOR PLAINTIFF

- APPELLANT : T ODD D. S TEIGMAN , Madsen, 1 Prestley & Parenteau, LLC , 2 Hartford, CT 3 4 FOR DEFENDANT

- APPELLEE : P ETER J. M URPHY , Shipman & 5 Goodwin LLP, Hartford, CT 6 Appeal from a judgment of the United States District Court for the District 7

of Connecticut ( Michael P. Shea , Judge ). 8
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the judgment of the D istrict C ourt is AFFIRMED

. 10

Plaintiff

- Appellant Sharlene McEvoy appeal s from the October 31, 2019 11
judgment of the District Court ( Shea , J. ) granting summary judgment in favor of 12

Defendant

- Appellee Fairfield University on her claim of age discrimination in 13
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 14

et seq

. McEvoy’s claim arises out of Fairfield University’s decision not to renew 15

her appointment as Director of Fairfield University’s Pre

- Law Advisory Program 16

and instead offer the position to a younger person

. We assume the parties’ 17
familiarity with the underlying facts and prior record of proceedings, to which 18
we refer only as necessary to explain our decision to affirm. 19
We review a district court’s grant of summary judgment de novo

. See 203 Burns v. Martuscello , 890 F.3d 77, 83 (2d Cir. 2018). McEvoy’s ADEA claim is 1

assessed under the three

- step McDonnell Douglas burden

- shifting framework. 2

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

Moreover, “ a plaintiff bringing a disparate

- treatment claim pursuant to the 4
ADEA must prove, by a preponderance of the evidence, that age was the ‘but

5
for’ cause of the challenged adverse employment action.” Gross v. FBL Fin. 6

Servs., Inc. , 557 U.S. 167, 180 (2009). 7

The District Court held that McEvoy failed to show that Fairfield 8
University’s proffered non

- discriminatory explanations for declining to renew 9

her appointment were mere pretext for age discrimination. In urging a contrary 10
conclusion, McEvoy chiefly argues that the pr offered performance

- based reasons 11
for declining to re

- appoint her were factually inaccurate and thus pretextual. It 12
is true that “a plaintiff’s prima facie case, co mbined with sufficient evidence to 13
find that the employer’s asserted justification is false, may permit the trier of fact 14
to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson 15
Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000). But he re, e ven assuming that 16
McEvoy was a high performer, she failed to marshal evidence that the 174 decisionmakers did not believe that her performance was deficient at least in 1

some areas based on complaints received from others

. See McPherson v. N.Y.C. 2
Dep’t of Educ. , 457 F.3d 211, 216 (2d Cir. 2006) (noting that this Court is 3
“decidedly not interested in the truth of the allegations against plaintiff,” but 4
rather “what motivated the employer” (quotation marks omitted))

. 5
McEvoy’s ar gument that Fairfield University’s explanations were 6
“shifting” and “inconsistent” with its response to McEvoy’s Connecticut 7
Commission on Human Rights and Opportunities complaint is equally 8
unavailing

. While such an inconsistency can be evidence of prete xt, see Kwan v. 9
Andalex Grp. LLC , 737 F.3d 834, 846 (2d Cir. 2013), b ased on our reading of the 10
record, any inconsistencies pointed out by McEvoy are too immaterial to 11
constitute evidence of pretext here

. 12
Finally, e ven if we assume d that Fairfield University’s proffered reasons 13
were pretextual, on summary judgment McEvoy did not provide 14

contemporaneous evidence of age discrimination, other than the fact that her 15
replacement was much younger. The only evidence of age discrimination in the 16

record came from a decisionmaker’s deposition , in which he described McEvoy 175 as “traditional” and the pre

- law program as “antiquated,” “backward looking,” 1

and “frozen.” But as the District Court concluded , this testimony 2
unambiguously referred to particula r perceived issues with the program

— 3
namely, the type of legal career paths that students were exposed to and the lack 4
of alignment with the strategic goals of the university at large

— rather than to 5
McEvoy’s age. With out sufficient evidence that Fairfield University’s decision to 6
select a new pre

- law director was because of McEvoy’s age, no reasonable juror 7
could find that her age was a but

- for cause of the decision to replace her. 8

We have considered McEvoy ’s remaining arguments a nd conclude that 9
they are without merit. For the foregoing reasons , we AFFIRM the judgment of 10

the District Court

. 11

FOR THE COURT: 12 Catherine O ’ Hagan Wolfe, Clerk of Court 13