12-5082-cv
Graves v. Deutsche Bank Sec.
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of December, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 DANIEL B. GRAVES,
13
14 Plaintiff-Appellant,
15
16 -v.- No. 12-5082-cv
17
18 DEUTSCHE BANK SECURITIES, INC.,
19
20 Defendant-Appellee.
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22
23 FOR PLAINTIFF-APPELLANT: RICHARD T. SEYMOUR, Washington,
24 D.C. (Steven A. Berger &
25 Jonathan Rogin, Berger & Webb,
26 LLP, New York, NY, on the
27 brief).
28
1
1 FOR DEFENDANT-APPELLEE: NICHOLAS H. DE BAUN (Clifford H.
2 Fonstein & Cameron Alexander
3 Smith, on the brief), Seyfarth
4 Shaw LLP, New York, NY.
5
6 Appeal from a judgment of the United States District
7 Court for the Southern District of New York (Jones, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Daniel B. Graves appeals a judgment dismissing his
14 claims against Deutsche Bank Securities, Inc. (“Deutsche
15 Bank”) for age discrimination and retaliation in violation
16 of the Age Discrimination in Employment Act of 1967 (“ADEA”)
17 and New York City Human Rights Law. We assume the parties’
18 familiarity with the underlying facts, the procedural
19 history, and the issues on appeal.
20 We review de novo a grant of summary judgment, drawing
21 all reasonable inferences in the non-moving party’s favor.
22 See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).
23 Summary judgment is appropriate if the record shows that
24 “there is no genuine dispute as to any material fact and the
25 movant is entitled to judgment as a matter of law.” Fed. R.
26 Civ. P. 56(a). A genuine dispute of material fact exists
27 only “where the evidence is such that a reasonable jury
28 could decide in the non-movant’s favor.” Beyer v. Cnty. of
29 Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
2
1 1. Age Discrimination. “[T]o establish a prima facie
2 case of age discrimination, [Graves] must show (1) that [he]
3 was within the protected age group, (2) that [he] was
4 qualified for the position, (3) that [he] experienced
5 adverse employment action, and (4) that such action occurred
6 under circumstances giving rise to an inference of
7 discrimination.” Gorzynski v. JetBlue Airways Corp., 596
8 F.3d 93, 107 (2d Cir. 2010). The burden then “shifts to
9 [Deutsche Bank] to articulate ‘some legitimate,
10 nondiscriminatory reason’ for its action.” Id. at 106
11 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
12 (1973)). Such a proffer shifts the burden back to the
13 plaintiff to demonstrate pretext. Id.
14 Deutsche Bank articulates legitimate, nondiscriminatory
15 reasons for terminating Graves’s employment, including (1) a
16 downward revenue trend and top-heaviness in Graves’s group;
17 and (2) Graves’s low actual and projected revenue as
18 compared to that of other managing directors.
19 Graves’s rebuttal is based largely on a single alleged
20 remark by his superior about transferring clients to younger
21 bankers. But Graves was required to do more than
22 demonstrate that an arguably discriminatory comment was
23 made. See, e.g., Slattery v. Swiss Reins. Am. Corp., 248
24 F.3d 87, 89, 93-94 (2d Cir. 2001) (affirming summary
3
1 judgment despite statements expressing desire for a “younger
2 workforce”); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d
3 456, 468-69 (2d Cir. 2001) (affirming summary judgment
4 despite “numerous comments about the age of the Pan Am pilot
5 force”). He was required to demonstrate that the
6 nondiscriminatory reasons for his termination were “false,
7 and that discrimination was the real reason.” St. Mary’s
8 Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis
9 omitted). There is no evidence that Deutsche Bank’s
10 proffered justifications are false. To the contrary, the
11 record shows that: (1) the superior (who had hired Graves
12 just a few years prior) was himself almost a decade older
13 than Graves; (2) the so-called “younger” bankers were barely
14 younger than Graves; and (3) Deutsche Bank chose to retain a
15 managing director from the same group who was four years
16 older than Graves. See Slattery, 248 F.3d at 94
17 (considering fact that plaintiff’s “supervisors . . . were
18 also members of the protected class” in affirming summary
19 judgment on ADEA claim); Grady v. Affiliated Cent., Inc.,
20 130 F.3d 553, 560 (2d Cir. 1997) (“[S]ome factors strongly
21 suggest that invidious discrimination was unlikely. For
22 example, when the person who made the decision to fire was
23 the same person who made the decision to hire, it is
24 difficult to impute to her an invidious motivation that
4
1 would be inconsistent with the decision to hire.”); Bay v.
2 Times Mirror Magazines, Inc., 936 F.2d 112, 118 (2d Cir.
3 1991) (finding “no evidence upon which a trier of fact could
4 reasonably reject” non-discriminatory motivations because,
5 inter alia, retained employees were older than plaintiff).
6 2. Retaliation. “To establish a prima facie case of
7 retaliation, [Graves] must show (1) that [he] participated
8 in a protected activity, (2) that [he] suffered an adverse
9 employment action, and (3) that there was a causal
10 connection between [his] engaging in the protected activity
11 and the adverse employment action.” Gorzynski, 596 F.3d at
12 110. Such a showing shifts the burden to Deutsche Bank to
13 articulate a legitimate, non-retaliatory reason for its
14 action. See id. at 111. If it does so, the burden shifts
15 back to Graves to demonstrate that the claimed justification
16 is pretextual. See id.
17 Graves has adduced no evidence of causal connection.
18 Indeed, his termination preceded his complaints of
19 discrimination.
20 Graves’s claims based on alleged post-termination
21 adverse employment actions also fail. He provides no
22 evidence plausibly supporting any customary or actual
23 entitlement to a “soft landing” (e.g., a six-month period of
24 time in which to find another position), transfer to another
5
1 group, larger severance payment, or bonus. Nor does the
2 evidence suggest that any of these “perks” was denied to
3 Graves because of a discriminatory or retaliatory intent on
4 Deutsche Bank’s part.
5 Finally, Graves attempts to revive a Fair Labor
6 Standards Act (“FLSA”) retaliation claim. We reject the
7 effort for reasons set forth in the margin.1
8 Graves has therefore not raised a genuine dispute of
9 material fact on any of his age discrimination or
1
Judge Jones dismissed that claim at an earlier stage
in the litigation on the basis of Lambert v. Genesee
Hospital, which held that the relevant FLSA provision
“limits the cause of action to retaliation for filing formal
complaints, instituting a proceeding, or testifying, but
does not encompass complaints made to a supervisor.” 10
F.3d 46, 55 (2d Cir. 1993). The Supreme Court recently
concluded that the FLSA retaliation provision contemplates
oral as well as written complaints but “state[d] no view on”
whether, contrary to Lambert, the retaliation provision
covers complaints to private employers. Kasten v. Saint-
Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1336
(2011). Graves asks us to overrule Lambert on the basis of
Kasten’s reasoning, if not its explicit holding.
We have no occasion to reach the question of Kasten’s
scope here. Graves’s FLSA claim relies on the same facts
and allegations as the other retaliation claims and fails
for substantially the same reasons. See Mullins v. City of
N.Y., 626 F.3d 47, 53 (2d Cir. 2010) (“FLSA retaliation
claims are subject to the three-step burden shifting
framework established by McDonnell Douglas . . . .”); Brock
v. Casey Truck Sales, Inc., 839 F.2d 872, 876 (2d Cir. 1988)
(using McDonnell Douglas burden-shifting framework to
analyze FLSA retaliation claims).
6
1 retaliation claims. The district court properly granted
2 summary judgment to Deutsche Bank.2
3 We have considered all of Graves’s remaining arguments
4 and conclude that they are without merit. The judgment of
5 the district court is hereby affirmed.
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
2
The district court did not abuse “broad discretion”
by considering only part of Graves’s 127-page response to
Deutsche Bank’s five-page statement of undisputed facts.
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).
Graves flagrantly violated Local Civil Rule 56.1, which
requires a “short and concise,” non-argumentative response.
7