15-2587
Dunaway v. MPCC Corp., 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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of September, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 Circuit Judges,
9
10 JANE A. RESTANI,*
11 Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 Douglas C. Dunaway,
15 Plaintiff-Appellant,
16
17 -v.- 15-2587
18
19 MPCC Corp., Joseph Urbinati,
20 Defendants-Appellees.
21
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: DONALD L. SAPIR, Sapir Schragin
25 LLP, White Plains, NY.
* The Honorable Jane A. Restani, Judge for the United
States Court of International Trade, sitting by designation.
1
1 FOR APPELLEES: NICHOLAS M. REITER, Venable LLP,
2 New York, NY.
3
4 Appeal from a judgment of the United States District Court
5 for the Southern District of New York (Román, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
8 DECREED that the judgment of the district court be AFFIRMED.
9
10 Douglas Dunaway appeals from the judgment of the United
11 States District Court for the Southern District of New York
12 (Román, J.) dismissing the age-discrimination and retaliation
13 complaint on a motion for summary judgment. We assume the
14 parties’ familiarity with the underlying facts, the procedural
15 history, and the issues presented for review.
16 Dunaway applied to be a senior project manager for MPCC Corp.
17 -- a construction general contractor based in New Rochelle, New
18 York -- and was interviewed by its president, Joseph Urbinati.
19 Dunaway avers that in the interview, Urbinati said: that he was
20 looking for an employee who would stay for 10 to 15 years; asked
21 Dunaway his age (he was 65 but responded only that he was “up
22 in years” and in good physical condition); mentioned Urbinati’s
23 septuagenarian father who was no longer running the company,
24 though he remained involved with it; and asked Dunaway whether
25 he was “capable of withstanding the vigors [sic] of the
26 position.” Urbinati did not hire Dunaway, and (consistent with
27 company practice) he did not notify Dunaway that his application
28 was rejected, but he continued seeking candidates for the
29 position.
30 About a month after the interview, Dunaway filed an
31 age-discrimination complaint with the New York State Division
32 of Human Rights (“NYSDHR”), which determined that there was no
33 probable cause to believe that the rejection was discriminatory,
34 and dismissed the complaint.
35 This suit against Urbinati and MPCC pleads a failure-to-hire
36 claim under the Age Discrimination in Employment Act (“ADEA”)
37 and, in the alternative, a retaliation claim under the New York
38 Human Rights Law (“NYHRL”) alleging that Urbinati rejected
39 Dunaway’s application in retaliation for the NYSDHR complaint.
2
1 The district court (Román, J.) dismissed the suit on summary
2 judgment, holding that Dunaway failed to make a prima facie case
3 of discrimination under the familiar burden-shifting framework
4 of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5 We review de novo the district court’s grant of summary
6 judgment, drawing all inferences in favor of the non-moving
7 party. Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.
8 1998).
9 The ADEA makes it unlawful for an employer “to fail or refuse
10 to hire . . . any individual . . . because of such individual’s
11 age.” 29 U.S.C. § 623(a)(1). ADEA claims are analyzed under
12 the McDonnell Douglas burden-shifting framework: the plaintiff
13 first must make out a prima facie case of unlawful
14 discrimination; the burden of production then shifts to the
15 defendant to proffer non-discriminatory motivation for the
16 challenged action; and, finally, the burden of production
17 returns to the plaintiff to show that the non-discriminatory
18 motivation was mere pretext for discrimination. 411 U.S. at
19 802. See also, e.g., Bucalo v. Shelter Island Union Free Sch.
20 Dist., 691 F.3d 119, 128-129 (2d Cir. 2012).
21 To establish a prima facie case of age discrimination, the
22 plaintiff must show (1) that he was within the protected age
23 group, (2) that he was qualified for the position, (3) that he
24 experienced an adverse employment action, and (4) that the action
25 occurred under circumstances giving rise to an inference of
26 discrimination. Id. at 129. The parties agree that the first
27 three requirements are satisfied. The district court ruled that
28 the fourth requirement was not. We agree.
29 Urbinati made several references to age, direct and
30 indirect, when he interviewed Dunaway. The ADEA, however, “does
31 not make all discussion of age taboo.” Raskin v. Wyatt Co., 125
32 F.3d 55, 63 (2d Cir. 1997). “[A]n employer’s concern about the
33 economic consequences of employment decisions,” such as the
34 likelihood of an employment candidate’s retirement within a
35 short timeframe, “does not constitute age discrimination under
36 the ADEA, even though there may be a correlation with age.”
37 Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997).
38 More broadly, employers may consider factors that “are
3
1 empirically intertwined with age” without violating the ADEA
2 “so long as they are motivated by ‘some feature other than the
3 employee’s age.’” Id. (quoting Hazen Paper Co. v. Biggins, 507
4 U.S. 604, 609 (1993)).
5 There are quibbles as to what was said (which we must resolve
6 in Dunaway’s favor); but by either party’s account, the questions
7 were germane to the probable length of Dunaway’s potential
8 employment and his fitness to do the job. It is also undisputed
9 that MPCC employed workers of similar age or older than Dunaway,
10 and that after he was passed over for a position as senior project
11 manager, a candidate who was hired was only one year younger.
12 Even if a jury credits Dunaway’s account of Urbinati’s
13 questioning, those circumstances do not give rise to an inference
14 that Urbinati had a discriminatory motive not to hire him. The
15 district court therefore did not err by concluding that Dunaway
16 failed to make out a prima facie case of age discrimination.
17 As for Dunaway’s NYHRL retaliation claim, a similar analysis
18 applies. “The law governing ADEA claims has been held to be
19 identical to that governing claims made under the NYHRL.”
20 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d
21 Cir. 2010). Dunaway has not established a genuine issue of fact
22 as to whether the decision not to hire him occurred before or
23 after Urbinati received notice of his NYSDHR complaint, and the
24 circumstances do not give rise to an inference that Urbinati
25 had a retaliatory motive when he decided not to hire him.
26 Accordingly, and finding no merit in Dunaway’s other
27 arguments, we hereby AFFIRM the judgment of the district court.
28 FOR THE COURT:
29 CATHERINE O’HAGAN WOLFE, CLERK
4