Grasso v. EMA Design Automation, Inc.

14-4109 Grasso v. EMA Design 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 28th day of October, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 GEOFFREY W. CRAWFORD,* 10 District Judge. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 Brenda Grasso, 14 Plaintiff-Appellant, 15 16 -v.- 14-4109 17 18 EMA Design Automation, Inc., and 19 Emmanuel Marcano, 20 Defendants-Appellees. 21 - - - - - - - - - - - - - - - - - - - -X 22 * Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont, sitting by designation. 1 1 FOR APPELLANT: Ryan C. Woodworth, The Woodworth 2 Law Firm, Rochester, New York. 3 4 FOR APPELLEES: Scott D. Piper, Harris Beach 5 PLLC, Pittsford, New York. 6 7 Appeal from a judgment of the United States District 8 Court for the Western District of New York (Telesca, J.). 9 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 11 AND DECREED that the judgment of the district court be 12 AFFIRMED. 13 14 Plaintiff-appellant Brenda Grasso appeals from the 15 judgment of the United States District Court for the Western 16 District of New York (Telesca, J.), granting summary 17 judgment in favor of defendants-appellees EMA Design 18 Automation, Inc., and Emmanuel Marcano. We assume the 19 parties’ familiarity with the underlying facts, the 20 procedural history, and the issues presented for review. 21 22 1. Plaintiff’s job was eliminated and she was 23 terminated. She claims that this was retaliation against 24 her for engaging in protected activity (filing an 25 administrative complaint of discrimination) under Title VII. 26 See 42 U.S.C. § 2000e-3. We disagree. 27 28 To establish a prima facie case of retaliation under 29 the burden-shifting framework set forth in McDonnell Douglas 30 Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must show 31 “1) participation in a protected activity; 2) the 32 defendant's knowledge of the protected activity; 3) an 33 adverse employment action; and 4) a causal connection 34 between the protected activity and the adverse employment 35 action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 36 (2d Cir. 2013) (citations and quotation marks omitted). 37 38 “Once the plaintiff has established a prima facie 39 showing of retaliation, the burden shifts to the employer to 40 articulate some legitimate, non-retaliatory reason for the 41 employment action.” Id. at 845. “For the case to continue, 42 the plaintiff must then come forward with evidence that the 43 defendant's proffered, non-discriminatory reason is a mere 44 pretext for actual discrimination.” Weinstock v. Columbia 45 Univ., 224 F.3d 33, 42 (2d Cir. 2000). The plaintiff must 46 demonstrate that “the desire to retaliate was the but-for 47 cause of the challenged employment action.” Univ. of Texas 2 1 Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). 2 However, “‘but-for’ causation does not require proof that 3 retaliation was the only cause of the employer's action, but 4 only that the adverse action would not have occurred in the 5 absence of the retaliatory motive.” Kwan 737 F.3d at 845-46 6 (citing Nassar, 133 S. Ct. at 2526, 2533). 7 8 Plaintiff has failed to raise a triable issue of fact 9 that defendant’s legitimate, non-retaliatory reasons were 10 pretextual. 11 12 It is undisputed that between 2009 and 2011, defendant 13 experienced the effects of an economic recession that caused 14 its revenues to decline and led to cuts to its workforce, 15 including the termination of more than a quarter of its 16 employees between 2009 and 2010. Defendants stated that the 17 reason plaintiff’s position was eliminated was because of 18 this financial distress and because they realized they could 19 operate efficiently without plaintiff’s position. 20 21 Moreover, it is further undisputed that plaintiff 22 turned down defendant’s offer of a different position after 23 her original position was eliminated and that plaintiff had 24 not been coming to work in the days leading up to her 25 termination despite a doctor’s note stating she could 26 return. 27 28 A company-wide reduction in force is a legitimate non- 29 discriminatory reason for employment termination, see 30 Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 31 2014), and refusal to appear for a job or perform job duties 32 is a legitimate, nondiscriminatory reason for adverse 33 employment action, see Van Zant v. KLM Royal Dutch Airlines, 34 80 F.3d 708, 714 (2d Cir. 1996). Plaintiff’s position was 35 eliminated as part of a reduction in force due to economic 36 concerns, she refused to accept the new position that was 37 offered to her, and she was no longer coming to work. 38 Plaintiff points to no record evidence that defendants’ 39 legitimate reasons for her termination were pretextual. 40 41 Although plaintiff is correct that the elimination of 42 her position and her subsequent termination were close in 43 time to her filing the discrimination complaint,1 this is 1 Plaintiff also claims that she engaged in protected activity in an April 19, 2010 meeting in which she 3 1 not enough to raise a triable issue of fact as to pretext. 2 See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d 3 Cir. 2010) (“The temporal proximity of events may give rise 4 to an inference of retaliation for the purposes of 5 establishing a prima facie case of retaliation under Title 6 VII, but without more, such temporal proximity is 7 insufficient to satisfy appellant's burden to bring forward 8 some evidence of pretext.”). 9 10 For the foregoing reasons, and finding no merit in 11 Grasso’s other arguments, we hereby AFFIRM the judgment of 12 the district court. 13 14 FOR THE COURT: 15 CATHERINE O’HAGAN WOLFE, CLERK 16 asked defendant if he would “treat a man” in the same way he was allegedly treating her. Regardless of whether this was protected activity, see Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989), it does not change the analysis that plaintiff has put forward no evidence that defendants’ reasons were pretextual. 4