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),

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.,

(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,

(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,

(2d Cir. 2012)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(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.,

(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.

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.,

(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.,

(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.,

(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.,

(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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