Young v. Daughter of Jacob Nursing Home (D.O.J.)

11-3259-cv
Young v. Daughter of Jacob Nursing Home (D.O.J.)

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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 21st day of November, two thousand twelve.

Present: JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
____________________________________________________________

DAVID I. YOUNG,

Plaintiff-Appellant,

-v- No. 11-3259-cv

DAUGHTER OF JACOB NURSING HOME, (D.O.J.),

Defendant-Appellee.
____________________________________________________________

For Plaintiff-Appellant: Kenneth W. Richardson, Law Office of Kenneth W.
Richardson, New York, NY.

For Defendant-Appellee: Nancy V. Wright, Scott Abraham, and Ricki Ellen Roer,
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York,
NY.
Appeal from the United States District Court for the Southern District of New York

(Seibel, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be and hereby is AFFIRMED.

Plaintiff-Appellant David I. Young appeals from a July 12, 2011, decision and order of

the United States District Court for the Southern District of New York (Seibel, J.) and a

judgment entered on July 18, 2011, granting summary judgment to the defendant in this

employment discrimination action. We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

The plaintiff contends that genuine issues of material fact exist with respect to his

discrimination claims. He principally makes two arguments in support of this contention. First,

the plaintiff argues that at least two other employees committed acts similar to his own but were

not disciplined. Substantially for the reasons articulated by the district court, we hold that the

plaintiff has not produced evidence demonstrating that the two employees he identified are

comparable to him. Second, the plaintiff argues that the statements allegedly made by the

defendant’s CEO with respect to a desire to terminate older workers were not hearsay because

“Mr. Young here claims direct knowledge of at least one such similar act” and “claims to have

reported that act himself.” Brief for Plaintiff-Appellant Young at 13. The plaintiff does not,

however, claim direct knowledge of the CEO’s alleged statement. Nor does he raise any

exception to the hearsay rule that might apply here. See Fed. R. Evid. 801.

The plaintiff additionally contends that judgment should not have been granted with

respect to his retaliation claim because a causal connection may exist between the protected

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activity and the retaliatory action. He argues that the four years that elapsed between his prior

lawsuit and his termination are insufficient reason to bar his discrimination claim. However, he

offers no other evidence of pretext. Even assuming that the temporal proximity between the

protected activity and the termination were sufficient to give rise to an inference of retaliation for

the purposes of establishing a prima facie case of retaliation, “without more, such temporal

proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of

pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam).

We have considered the plaintiff’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK