## The Honorable John F. Keenan, United States District Court for the Southern * 

## District of New York, sitting by designation. 09-1012-cv Phillips v. Centrix Inc.



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# 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 day of December, two thousand and nine. st 

# 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 .

__________________________________________________

# 2

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

# 3 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, non6 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

# 4 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

# 5 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