13-3659-cv Markovich v. City of New York 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.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2 8 thday of January, two thousand fifteen. 3 4 Present: ROSEMARY S. POOLER, 5 DEBRA ANN LIVINGSTON, 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges

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_____________________________________________________ 9 10 YEFIM MARKOVICH, 11 12 Plaintiff-Appellant

, 13 14 v. 13-3659-cv 15 16 CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION and REESA 17 LEVY, in her individual capacity, 18 19 Defendants-Appellees

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_____________________________________________________ 21 22 Appearing for Appellant: Ambrose W. Wotorson, New York, N.Y. 23 24 Appearing for Appellee: Kathy Chang Park, Assistant Corporation Counsel (Larry A. 25 Sonnenshein, on the brief ), for Zachary W. Carter, Corporation 26 Counsel of the City of New York, New York, N.Y. 27 28 Appeal from the United States District Court for the Eastern District of New York 29 (Vitaliano, J. ). 30 31 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 32 AND DECREEDthat the order of said District Court be and it hereby is AFFIRMED

. 33 34Plaintiff-appellant, Yefim Markovich, appeals the memorandum and order entered on 1 August 21, 2013 of the United States District Court for the Eastern District of New York 2 (Vitaliano, J. ) granting summary judgment for the New York City Department of Education 3 (“DOE”) on his claims of discrimination and retaliation in violation of the Age Discrimination in 4 Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). We assume the parties’ familiarity with 5 the underlying facts, procedural history, and specification of issues for review. 6 7 We review a grant of summary judgment de novo, affirming only if there are no genuine 8 issues of material fact, such that the moving party is entitled to a judgment as a matter of law. 9 See Carlton v. Mystic Transp., Inc. , 202 F.3d 129, 133 (2d Cir. 2000). In assessing the record to 10 determine if such issues do exist, we resolve all ambiguities and draw all inferences in favor of 11 the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). 12 Summary judgment is appropriate, however, if there is not “sufficient evidence favoring the 13 nonmoving party for a jury to return a verdict for that party.” Id. at 249. 14 15 The ADEA provides that it is “unlawful for an employer . . . to discharge any individual 16 or otherwise discriminate against any individual with respect to his compensation, terms, 17 conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 18 623(a)(1). “It is well established that the burden-shifting framework set forth by the Supreme 19 Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) applies to claims brought 20 under the ADEA.” Delaney v. Bank of Am. Corp. , 766 F.3d 163, 167 (2d Cir. 2014). 21 22 In order to establish a prima facie case of age discrimination, the plaintiff must show that 23 he was (1) within the protected age group; (2) qualified for the position; and (3) suffered a 24 materially adverse employment action; (4) under circumstances giving rise to an inference of 25 discrimination. Carlton , 202 F.3d at 134. “If the plaintiff establishes aprima facie case, a 26 rebuttable presumption of discrimination arises. The burden of production then shifts to the 27 employer to articulate a legitimate, non-discriminatory reason for discharging the employee.” Id. 28 (internal citation omitted). “When the employer meets its burden, the plaintiff can no longer rely 29 on the prima facie case, but must prove that the employer’s proffered reason was a pretext for 30 discrimination.” Delaney , 766 F.3d at 168 (internal citations and quotation marks omitted). 31 “[A]n inference of discriminatory intent may be established by,inter alia , . . . the sequence of 32 events leading to the plaintiff’s discharge.” Sassaman v. Gamache , 566 F.3d 307, 312 (2d Cir. 33 2009) (internal quotation marks omitted). 34 35 An independent review of the record reveals that the district court did not err in granting 36 summary judgment in favor of the DOE. While Markovich established a prima facie case of 37 discrimination, he did not dispute the accuracy of the observations reported in his negative 38 performance reviews. Moreover, to the extent Markovich relies on Principal Levy’s statements 39 about his pension as evidence of pretext, those statements do not permit a reasonable inference 40 that the actual motivation for his “U” ratings was related to his age. See Reeves v. Sanderson 41 Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000) (“[I]t is not enough to disbelieve the employer; 42 the factfinder must believethe plaintiff’s explanation of intentional discrimination.” (internal 43 alterations and quotation marks omitted)); see also Hazen Paper Co. v. Biggins , 507 U.S. 604, 44 611 (1993) (“Because age and years of service are analytically distinct, an employer can take 45 account of one while ignoring the other, and thus it is incorrect to say that a decision based on 46 years of service is necessarily ‘age based.’”). 47

2Because we hold that Markovich failed to put forth evidence that would “permit a jury to 1 find that age was the but-for cause of the challenged adverse employment action,” Delaney , 766 2 F.3d at 168 (internal alterations and citations omitted), we need not reach his argument that the 3 district court erred in finding that he was not c onstructively discharged. We also agree with the 4 district court’s conclusion that Markovich’s retaliation claim fails because the record does not 5 reveal a nexus between the letters his son wrote to the DOE and the adverse employment action. 6 See Wanamaker v. Columbia Rope Co. , 108 F.3d 462, 465 (2d Cir. 1997). 7 8 We have considered the remainder of Markovich’s arguments and find them to be 9 without merit. Accordingly, the order of the district court is hereby AFFIRMED. 10 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15 16 17 18 19 20 21 22

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