Filed: Oct. 28, 2015
Latest Update: Mar. 02, 2020
Summary: 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”).
Summary: 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”). ..
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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
