18-3521-cv Downey and Bonner v. Adloox, Inc. 18‐3521‐cv Downey and Bonner v. Adloox, 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 TO 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 24th day of October two thousand nineteen.

PRESENT: JON O. NEWMAN, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

KEVIN P. DOWNEY, ANDREA BONNER, Plaintiffs‐Appellants,

‐v‐ 18‐3521‐cv

ADLOOX, INC., ADLOOX, Defendants‐Appellees,

ADLOOX LIMITED, Defendant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFFS‐APPELLANTS: RICHARD M. REICE, Michelman & Robinson, LLP, New York, New York.

FOR DEFENDANTS‐APPELLEES: MICHAEL E. DeLARCO (David J. Baron, on the brief), Hogan Lovells US LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Furman, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs‐appellants Kevin P. Downey and Andrea Bonner (ʺPlaintiffsʺ)

appeal from a judgment entered October 25, 2018 in favor of defendants‐appellees

Adloox, Inc. and Adloox (together ʺAdlooxʺ). By Opinion and Order entered October

23, 2018, the district court granted summary judgment in favor of Adloox, dismissing

Plaintiffsʹ claims under the Age Discrimination in Employment Act (the ʺADEAʺ),

et seq; the New York State Human Rights Law (the ʺNYSHRLʺ),

; and the New York City Human Rights Law (the ʺNYCHRLʺ), N.Y.C. Admin.

Code § 8‐107. As to the ADEA and NYSHRL claims, the district court concluded that

Plaintiffs did not present evidence from which a reasonable jury could find that

Adlooxʹs stated reason for terminating their employment ‐‐ their poor job

performance ‐‐ was pretextual. The district court declined to exercise supplemental

2 jurisdiction over the NYCHRL claim. We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

We review a district courtʹs decision to grant summary judgment de novo,

with the view that ʺ[s]ummary judgment may be granted only if there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.ʺ Vincent v. The Money Store,

(2d Cir. 2013) (quotations and citations

omitted). 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).

Summary judgment should be granted when ʺthe record taken as a whole could not

lead a rational trier of fact to find for the non‐moving party.ʺ Matsushita Elec. Indus. Co.

v. Zenith Radio Corp.,

(1986) (citations omitted).

The district court correctly analyzed Plaintiffsʹ ADEA and NYSHRL

claims under the McDonnell Douglas burden‐shifting framework. See Gorzynski v. JetBlue

Airways Corp.,

(2d Cir. 2010) (citing McDonnell Douglas Corp. v. Green,

(1973)). Under this framework, if a plaintiff establishes a prima facie case of

discrimination, the defendant must articulate a legitimate, non‐discriminatory reason

for its action.

If the defendant provides such a reason, ʺthe plaintiff must then come

forward with evidence that the defendantʹs proffered, non‐discriminatory reason is a

mere pretext for actual discrimination.ʺ Weinstock v. Columbia Univ.,

(2d

Cir. 2000). ʺ[T]o defeat summary judgment . . . the [employeeʹs] admissible evidence

3 must show circumstances that would be sufficient to permit a rational finder of fact to

infer that the [employerʹs] employment decision was more likely than not based in

whole or in part on discrimination.ʺ Kirkland v. Cablevision Sys.,

(2d

Cir. 2014) (per curiam) (internal quotation marks and citations omitted) (second and

third brackets in original). In an ADEA case, a plaintiff satisfies that burden by proving,

ʺby a preponderance of the evidence, that age was the ʹbut‐forʹ cause of the challenged

adverse employment action.ʺ Gross v. FBL Fin. Servs., Inc.,

(2009).

Because ADEA claims have been held to be identical to NYSHRL claims, both are

analyzed under the same framework. Gorzynski,

n.6.

Here, the district court assumed that Plaintiffs established a prima facie

case of age discrimination. It then concluded that Adloox articulated a legitimate, non‐

discriminatory reason for firing Plaintiffs ‐‐ that Plaintiffs were not performing well at

their jobs because they were not generating sales or sales leads. Adloox supported this

assertion with contemporaneous documentation. Thus, under McDonnell Douglas, the

burden shifted back to Plaintiffs to present evidence that Adlooxʹs non‐discriminatory

reasons for firing them were pretextual and that age was the ʺbut‐forʺ cause of their

dismissal. The district court concluded that Plaintiffs failed to present sufficient

evidence to support such a finding, and it granted Adlooxʹs motion for summary

judgment. We agree that Plaintiffs did not offer sufficient evidence to permit a

4 reasonable factfinder to conclude, by a preponderance of the evidence, that Adloox

fired Plaintiffs because of their ages.

.

As the undisputed evidence showed, in September 2015, Adlooxʹs

executives hired Downey, then 51 years old. They chose Downey over two younger

candidates ‐‐ a 38‐year old and a 31‐year old. The Adloox executives were impressed by

Downeyʹs interview and references, and they agreed to pay him more than anyone else

at Adloox. Soon, however, the executives who hired Downey ‐‐ Marco Ricci, CEO;

Antony Dufoi, CFO; and Romain Bellion, COO ‐‐ began to express concern that

Downey was not scheduling enough meetings with prospective clients. And when

Downey did schedule meetings, they did not go well. In October 2015, the Adloox

executives set a requirement: Downey had to hold at least three meetings that resulted

in clients testing out Adlooxʹs product before an advertising conference scheduled for

early November. When Downey failed to meet this requirement, the same executives

who hired Downey in September 2015 fired him in late‐October 2015. During his

tenure, Downey did not generate any revenue for Adloox.

In July 2016, the same Adloox executives hired Bonner, then 53 years old.

She was also chosen over two younger candidates ‐‐ a 36‐year old and a 35‐year old.

The executives, however, quickly grew concerned that Bonner was not scheduling

enough meetings. In October 2016, Bonner agreed that moving forward she would

schedule at least five meetings per week, but she struggled to meet this requirement.

5 Bonner recalled only one week where she met the five‐meeting requirement, and in her

tenure at Adloox she remembered only four ʺgoodʺ meetings. Suppl. Appʹx 59‐61. In

roughly four months, Bonner only earned Adloox $10,000 in revenue. Moreover, she

did not volunteer to take on tasks in the office, either ignoring or declining Ricciʹs

requests. Bonner was fired in November 2016 by the same executives who hired her.

In contrast to Adlooxʹs contemporary evidence that Downey and Bonner

were fired for their poor job performances, Plaintiffs primarily offer stray remarks

unrelated to their dismissals to prove they were fired because of their ages. ʺStray

remarks,ʺ even when made by decisionmakers, do not make out a discrimination case.

Danzer v. Norden Sys., Inc.,

, 56 (2d Cir. 1998). According to Downey, Ricci

called him an ʺold timerʺ on two occasions. Appʹx 190. Both occurred outside the

office, and Downey acknowledged that on at least one of these occasions Ricci was

speaking in jest and ʺbusiness was not being discussed.ʺ Dkt. No. 92 at 78. The other

comment was made when Downey was lighting a cigarette in Times Square. Downey

also presented an email in which Dufoi wrote that Adloox was ʺlooking for young

sharksʺ to become junior salespeople. Appʹx 237‐38. Bonner, too, relies on Dufoiʹs

ʺyoung sharksʺ comment. Unlike Downey, however, Bonner was not even working for

Adloox when the ʺyoung sharksʺ email was sent, as she was not hired until later. In

any event, that comment was unrelated to either Downeyʹs or Bonnerʹs firing ‐‐ it was

6 about hiring new, junior salespeople. Plaintiffs have not offered any evidence to link

these stray comments to their firings.

Downey also declared, in an April 11, 2018 affidavit, that Dufoi inquired

about Downeyʹs age during his interview and that Ricci followed up by saying

Downeyʹs age was worrisome.1 These comments do not create a genuine issue of fact

for trial, as Dufoi hired Downey anyway. These comments were unrelated to Downey

being fired.

Given Adlooxʹs extensive, contemporaneous evidence that Plaintiffs were

underperforming at their jobs, the undisputed fact that they were hired and fired by the

same executives in a short period of time, see Schnabel v. Abramson,

(2d

Cir. 2000) (concluding that plaintiff being hired and fired by same person within short

timeframe is a ʺhighly relevant factorʺ that weighs in favor of granting summary

judgment for defendant in ADEA case), and the absence of evidence that age was the

1 Downeyʹs affidavit was the first time he mentioned these comments, even though he was ʺrather insultedʺ at the time they were made. Appʹx 190. At his deposition on October 24, 2017 ‐‐ roughly five months before Downey signed his affidavit attesting to these remarks ‐‐ Downey was asked for ʺall the factsʺ on which he based his belief that he was discriminated against because of his age. Dkt. No. 92 at 288. He was asked, ʺAnything else?ʺ several times, but he never mentioned the comments allegedly made at his interview.

at 289‐90. It was not until after Adloox moved for summary judgment that Downey signed an affidavit attesting to them. As the district court noted, Downey cannot avoid summary judgment by supplementing his previously taken deposition with new, inconsistent information. See Hayes v. N.Y.C. Depʹt of Corr.,

, 619 (2d Cir. 1996) (ʺ[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiantʹs previous deposition testimony.ʺ); Perma Research & Dev. Co. v. Singer Co.,

(2d Cir. 1969) (affirming a district courtʹs grant of summary judgment where a plaintiff was repeatedly asked about the basis of his claim and added new facts in his affidavit to oppose the motion for summary judgment). Nonetheless, these comments, taken as true, were insufficient to warrant a denial of summary judgment. 7 motivating factor, we conclude that no reasonable jury could find that Plaintiffs were

discharged because of their age.2

We have considered Plaintiffsʹ remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

2 Plaintiffs argue that the same‐actor inference is inapplicable because they contend Adloox only hired them to steal their industry contacts. See Jetter v. Knothe Corp.,

(2d Cir. 2003) (explaining that ʺ[t]he same‐actor rationale has far less applicabilityʺ when employers hire individuals with a goal other than retaining them as employees). They presented no evidence that this happened, however, and the indisputable evidence shows that, indeed, they produced virtually nothing in terms of new contracts. 8