Opinion
No. 10-1743-cv.
May 23, 2011.
Appeal from a judgment of the United States District Court for the Western District of New York (Skretny, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the judgment of the district court be AFFIRMED.
Mark H. Ruszkowski, Buffalo, NY, pro se.
Amy L. Hemenway, Harter Secrest Emery LLP, Buffalo, NY, for Appellees.
PRESENT: JON O. NEWMAN, GUIDO CALABRESI, PETER W. HALL, Circuit Judges.
SUMMARY ORDER
Appellant Mark H. Ruszkowski, proceeding pro se, appeals the district court's decision granting Appellee's motion for summary judgment in favor of the defendant and dismissing Appellant's complaint brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"), and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. We assume the parties' familiarity with the underlying facts and the procedural history of the case.
We review de novo orders granting summary judgment, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). For summary judgment purposes, a "genuine issue" exists where the evidence is such that a reasonable jury could decide in the non-moving party's favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000).
Appellant's discrimination claims are governed by the three-step burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this familiar framework, the plaintiff bears the initial burden of proving a prima facie case by a preponderance of the evidence by establishing that: (1) he is a member of a protected class; (2) he was qualified for the position for which he applied; (3) he was denied the position; and (4) the denial occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). Once a plaintiff alleges a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate a legitimate, non-discriminatory reason for its decision not to hire the plaintiff. Vivenzio, 611 F.3d at 106. The burden then shifts back to the plaintiff to present evidence that the employer's proffered reason is a pretext for an impermissible motivation. Id. A plaintiff cannot establish a prima facie case based on "purely conclusory allegations of discrimination, absent any concrete particulars." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Although McDonnell Douglas concerned the burden and allocation of proof under Title VII, its framework is also applied to claims under the ADEA. See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).
The Court notes that, pursuant to the Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, ___ ___, 129 S.Ct. 2343, 2350-51, 174 L.Ed.2d 119 (2009), a claimant bringing suit under the ADEA must demonstrate that age was not just a motivating factor behind the adverse action, but rather the "but-for" cause of it. See id. Title VII, on the other hand, does authorize a "mixed motive" discrimination claim. See id. at 2350 n. 3 ("Congress amended Title VII to allow for employer liability when discrimination was a motivating factor for any employment practice, even though other factors also motivated the practice, but did not similarly amend the ADEA. We must give effect to Congress' choice.") (citations and internal quotation marks omitted).
Here, Appellant cannot make out a prima facie case of discrimination under Title VII or the ADEA. With respect to the position of phlebotomy supervisor, Appellant cannot show that he was qualified for the position, as he admittedly had no prior supervisory experience. With respect to the positions of medical laboratory technician and phlebotomy technician, even if Appellant's limited experience 14 years prior to his application for employment with Appellee qualified him for the jobs, there is no evidence that Appellee's failure to hire Appellant occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.
We also note that Appellee has consistently maintained — and provided documents supporting its contention — that it never received Appellant's application and that, on October 6, 2005, neither of those positions would have been available to external applicants.
Additionally, Appellant testified that he could not recall whether he had provided his national origin on his application, and that he did not believe that he had indicated his race or color. Appellant's conclusory statements regarding general societal attitudes toward, and harassment of, people of Polish and/or German descent and his above-average DNA and test results are insufficient to establish a prima facie case that Appellee did not hire him based on his race, color, gender, or national origin. Finally, absent any evidence that Appellant was eligible to apply for the positions at issue, he has failed to establish a prima facie case that his age was the "but for" cause of Appellee's failure to hire him.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.