18-1824-cv Parron v. Herbert
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 ASUMMARY ORDER@). 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 22nd day of May, two thousand nineteen.
PRESENT: DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges, RICHARD M. BERMAN, District Judge.* _______________________________________
Louis B. Parron,
Plaintiff-Appellant,
v. 18-1824-cv
Michael Herbert, Joseph Szucs, Jr., Verizon New York Inc.,
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Louis B. Parron, pro se, Clinton, NJ.
FOR DEFENDANTS-APPELLEES: Scott Casher, White and Williams LLP, Pleasantville, NY.
* Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from a judgment of the United States District Court for the Southern District of
New York (Daniels, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Louis Parron (“Parron”), proceeding pro se, appeals from the district court’s
judgment granting summary judgment in favor of his former employer and supervisors with
respect to his age discrimination claim under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo to determine whether the district
court properly concluded that there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” See Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir.
2012) (internal quotation marks omitted). Claims under the ADEA fall under the McDonnell
Douglas framework. Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir.
2012). Under McDonnell Douglas, after a plaintiff establishes a prima facie case of
discrimination, the employer must demonstrate a “legitimate, nondiscriminatory reason” for the
adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Bucalo, 691 F.3d at 128–29. The burden then shifts back to the plaintiff to present
evidence that age was actually the but-for cause of the employer’s adverse action. See Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009); Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010). To establish a prima facie case of discrimination, a plaintiff must show,
2 among other things, that an adverse employment action “‘occurred under circumstances giving
rise to an inference of discrimination.’” Bucalo, 691 F.3d at 129 (quoting Gorzynski, 596 F.3d at
107).
Parron did not meet this burden. Parron principally alleged that the defendants
discriminated against him by suspending him from work. Yet Parron’s complaint, deposition
testimony, and appellate brief attribute his suspension not to his age, but to his inability to learn
how to complete new tasks. Parron contends that his difficulty adjusting to his new assignments
was a function of his age. But the district court correctly concluded that, even if a correlation
between learning difficulties and age existed, an adverse employment action based on these
difficulties would not constitute age discrimination under the ADEA. See Criley v. Delta Air Lines,
Inc., 119 F.3d 102, 105 (2d Cir. 1997) (“[E]mployment decisions driven by factors that are
empirically intertwined with age are not discriminatory so long as they are motivated by ‘some
feature other than the employee’s age.’” (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609
(1993)).
Parron failed to make a prima facie case of age discrimination with respect to his remaining
allegations as well. Parron alleged that Verizon provided inadequate training for his new
assignments, but there is no evidence that he was given different assignments or training than
younger employees. To the contrary, Parron testified that he did not know what other employees’
duties were, and the parties agreed that Parron attended training with three younger associates and
made no claims that those associates received preferential treatment based on their age. Parron
also alleged that he was denied the system access required to complete his assignments. Although
he asserts on appeal that all younger employees were granted this access, he provided no evidence
3 to support that assertion, and moreover he testified that he did not believe that his age was a factor
in his denial. And while Parron alleged that Verizon ordinarily imposed progressive discipline
short of suspension for violations like Parron’s, and ordinarily transferred employees with
difficulties like Parron’s to other positions rather than disciplining them, he failed to offer evidence
to support these assertions. Parron thus failed to provide any evidence of “circumstances giving
rise to an inference of discrimination.” Bucalo, 691 F.3d at 129 (internal quotation marks
omitted); see also Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (observing that in opposing
summary judgment, the non-moving party may not rely upon “conclusory statements or mere
allegations,” but must “go beyond the pleadings, and by his or her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial” (internal quotation marks and alterations omitted)).
Even if Parron had established a prima facie case of age discrimination, the defendants
proffered a legitimate, non-discriminatory reason for his suspension—his failure to arrive at work
on time and complete assigned tasks. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87,
93 (2d Cir. 2001) (determining that an employer’s “dissatisfaction” with an employee’s work
performance is a “legitimate, non-discriminatory reason” for an adverse employment action).
Even if there were a genuine dispute as to whether Parron had violated company policy, Parron
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18-1824-cv Parron v. Herbert
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 ASUMMARY ORDER@). 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 22nd day of May, two thousand nineteen.
PRESENT: DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges, RICHARD M. BERMAN, District Judge.* _______________________________________
Louis B. Parron,
Plaintiff-Appellant,
v. 18-1824-cv
Michael Herbert, Joseph Szucs, Jr., Verizon New York Inc.,
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Louis B. Parron, pro se, Clinton, NJ.
FOR DEFENDANTS-APPELLEES: Scott Casher, White and Williams LLP, Pleasantville, NY.
* Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from a judgment of the United States District Court for the Southern District of
New York (Daniels, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Louis Parron (“Parron”), proceeding pro se, appeals from the district court’s
judgment granting summary judgment in favor of his former employer and supervisors with
respect to his age discrimination claim under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo to determine whether the district
court properly concluded that there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” See Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir.
2012) (internal quotation marks omitted). Claims under the ADEA fall under the McDonnell
Douglas framework. Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir.
2012). Under McDonnell Douglas, after a plaintiff establishes a prima facie case of
discrimination, the employer must demonstrate a “legitimate, nondiscriminatory reason” for the
adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Bucalo, 691 F.3d at 128–29. The burden then shifts back to the plaintiff to present
evidence that age was actually the but-for cause of the employer’s adverse action. See Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009); Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010). To establish a prima facie case of discrimination, a plaintiff must show,
2 among other things, that an adverse employment action “‘occurred under circumstances giving
rise to an inference of discrimination.’” Bucalo, 691 F.3d at 129 (quoting Gorzynski, 596 F.3d at
107).
Parron did not meet this burden. Parron principally alleged that the defendants
discriminated against him by suspending him from work. Yet Parron’s complaint, deposition
testimony, and appellate brief attribute his suspension not to his age, but to his inability to learn
how to complete new tasks. Parron contends that his difficulty adjusting to his new assignments
was a function of his age. But the district court correctly concluded that, even if a correlation
between learning difficulties and age existed, an adverse employment action based on these
difficulties would not constitute age discrimination under the ADEA. See Criley v. Delta Air Lines,
Inc., 119 F.3d 102, 105 (2d Cir. 1997) (“[E]mployment decisions driven by factors that are
empirically intertwined with age are not discriminatory so long as they are motivated by ‘some
feature other than the employee’s age.’” (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609
(1993)).
Parron failed to make a prima facie case of age discrimination with respect to his remaining
allegations as well. Parron alleged that Verizon provided inadequate training for his new
assignments, but there is no evidence that he was given different assignments or training than
younger employees. To the contrary, Parron testified that he did not know what other employees’
duties were, and the parties agreed that Parron attended training with three younger associates and
made no claims that those associates received preferential treatment based on their age. Parron
also alleged that he was denied the system access required to complete his assignments. Although
he asserts on appeal that all younger employees were granted this access, he provided no evidence
3 to support that assertion, and moreover he testified that he did not believe that his age was a factor
in his denial. And while Parron alleged that Verizon ordinarily imposed progressive discipline
short of suspension for violations like Parron’s, and ordinarily transferred employees with
difficulties like Parron’s to other positions rather than disciplining them, he failed to offer evidence
to support these assertions. Parron thus failed to provide any evidence of “circumstances giving
rise to an inference of discrimination.” Bucalo, 691 F.3d at 129 (internal quotation marks
omitted); see also Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (observing that in opposing
summary judgment, the non-moving party may not rely upon “conclusory statements or mere
allegations,” but must “go beyond the pleadings, and by his or her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial” (internal quotation marks and alterations omitted)).
Even if Parron had established a prima facie case of age discrimination, the defendants
proffered a legitimate, non-discriminatory reason for his suspension—his failure to arrive at work
on time and complete assigned tasks. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87,
93 (2d Cir. 2001) (determining that an employer’s “dissatisfaction” with an employee’s work
performance is a “legitimate, non-discriminatory reason” for an adverse employment action).
Even if there were a genuine dispute as to whether Parron had violated company policy, Parron
did not produce any evidence demonstrating that these reasons were pretextual other than the
timing of his suspension, which occurred less than two years before he became eligible for a 30-
year service pension. But timing alone is insufficient to establish pretext. See Abrams v. Dep’t
of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (holding in the context of a Title VII retaliation
claim that, while timing “might be enough to establish a prima facie case, temporal proximity
4 alone is not enough to establish pretext in this Circuit”). The district court thus properly granted
summary judgment on Parron’s age discrimination claim.
Finally, Parron suggests that, in light of a magistrate judge’s recusal, other conflicts or
biases may have affected the district court’s decision to grant summary judgment. But Parron
offers no evidence of judicial bias other than this adverse ruling, which is insufficient to
demonstrate bias. See Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009)
(observing that “adverse rulings, without more, will rarely suffice to provide a reasonable basis for
questioning a judge’s impartiality”).
We have considered all of Parron’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court