Filed: Feb. 03, 2016
Latest Update: Mar. 02, 2020
Summary: 15-470-cv Virag v. Goodwill of W. & N. Conn., Inc. 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 NOTA
Summary: 15-470-cv Virag v. Goodwill of W. & N. Conn., Inc. 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 NOTAT..
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15‐470‐cv
Virag v. Goodwill of W. & N. Conn., Inc.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 3rd day of February, two thousand sixteen.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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ROZSA VIRAG,
Plaintiff‐Appellant,
v. 15‐470‐cv
GOODWILL OF WESTERN & NORTHERN
CONNECTICUT, INC.,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: ROZSA VIRAG, pro se, Manchester,
Connecticut.
FOR DEFENDANT‐APPELLEE: JENNIFER L. SCHANCUPP, Jackson Lewis
P.C., Stamford, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Squatrito, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Rozsa Virag, proceeding pro se, appeals the judgment of
the district court entered February 11, 2015 in favor of defendant‐appellee Goodwill
Industries of Western & Northern Connecticut, Inc. (ʺGoodwillʺ). By Memorandum of
Decision and Order entered February 10, 2015, the district court granted summary
judgment in favor of Goodwill, dismissing Viragʹs claims under the Age Discrimination
in Employment Act (ʺADEAʺ), 29 U.S.C. § 621 et seq. The district court concluded that
Virag failed to present evidence from which a reasonable jury could find that
Goodwillʹs legitimate, nondiscriminatory reason for not hiring her ‐‐ her inability to
speak English ‐‐ was pretextual. We assume the partiesʹ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review de novo a decision to grant summary judgment, with the view
that ʺ[s]ummary judgment is appropriate only if the moving party shows that there are
no genuine issues of material fact and that the moving party is entitled to judgment as a
matter of law.ʺ Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We
resolve all ambiguities and draw all factual inferences in favor of the non‐moving party.
Topps Co. v. Cadbury Stani S.A.I.C, 526 F.3d 63, 68 (2d Cir. 2008). ʺSummary judgment is
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appropriate ʹ[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non‐moving party.ʹʺ Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The district court correctly analyzed Viragʹs ADEA claim under the
burden‐shifting framework originally set forth in McDonnell Douglas. See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). Under this framework, once the
plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its employment
action. Id. When a reason is provided, the plaintiff ʺmust prove . . . that age was the
ʹbut‐forʹ cause of the challenged adverse employment action.ʺ Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 180 (2009). ʺThe condition that a plaintiffʹs age must be the ʹbut forʹ
cause of the adverse employment action is not equivalent to a requirement that age was
the employer[ʹs] only consideration, but rather that the adverse employment action
would not have occurred without it.ʺ Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d
Cir. 2014) (internal quotation marks, alterations, and emphases omitted).
For the purpose of summary judgment review, the district court assumed
that Virag had established a prima facie case of age discrimination. The district court
then concluded that 1) Goodwillʹs English‐speaking ability requirement was a
legitimate, nondiscriminatory reason for not hiring Virag; and 2) Virag failed to present
sufficient evidence to support a finding that Goodwillʹs reason was pretextual. Upon
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review, we agree with the district courtʹs determinations and affirm substantially for the
reasons stated in the district judgeʹs decision.
On appeal, Virag argues that certain statements made by Goodwill
employees establish pretext. As the district court explained, however, the proffered
statements constitute either 1) inadmissible hearsay, see Fed. R. Evid. 801(d)(2)(D) (an
admission by a party opponentʹs employee is admissible hearsay if made ʺon a matter
within the scope of that relationship and while it existedʺ); Burlington Coat Factory
Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (a party ʺcannot rely
on inadmissible hearsay in opposing a motion for summary judgmentʺ), or 2) ʺstray
remarksʺ not probative of discriminatory intent, see Henry v. Wyeth Pharm., Inc., 616 F.3d
134, 149 (2d Cir. 2010) (providing factors a court should consider in determining
whether a stray remark was probative of discriminatory intent). None of the other
evidence Virag offers supports the proposition that her age was the but‐for cause of the
decision not to hire her for the position.
We have considered all of Viragʹs remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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