Opinion
No. 06-4972-cv.
June 13, 2008.
Appeal from the United States District Court for the District of Connecticut, Thompson, J. UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the District of Connecticut (Thompson, J.), it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District Court is AFFIRMED.
Daniel M. Young (David M. Cohen, on the brief), Wofsey, Rosen, Kweskin Kuriansky, LLP, Stamford, Conn., for Plaintiff-Appellant.
C. Randolph Sullivan (Kimberlee W. DeWitt, on the brief), Hunton Williams, LLP, Richmond, Va., for Defendants-Appellees.
PRESENT: Hon. AMALYA L. KEARSE, Hon. GUIDO CALABRESI, Hon. ROBERT D. SACK, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant David D. Henwood ("Henwood" or "Appellant") appeals from an October 5, 2006 judgment of the United States District Court for the District of Connecticut (Thompson, J.) granting summary judgment to Defendants-Appellees Unisource Worldwide, Inc. and Georgia Pacific Corp. (together, "Unisource") on Appellant's claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60(a)(1), Connecticut's wage statutes, Conn. Gen. Stat. §§ 31-71c, 31-71e, Connecticut's statute recognizing the remedy of an accounting, Conn. Gen. Stat. § 52-401 et seq., and various common law theories of liability. We assume the parties' familiarity with the procedural history, facts, and relevant issues on appeal.
This Court reviews a district court's grant of summary judgment de novo. New York v. Nat'l, Serv. Indus., 460 F.3d 201, 206 (2d Cir. 2006). "[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998); see also Fed.R.Civ.P. 56(c). In determining whether there is a genuine issue of material fact, we must resolve all ambiguities, and draw all inferences, against the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Mere speculation and conjecture are insufficient to avoid summary judgment. W. World his. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
For substantially the reasons stated in the District Court's thorough opinion, see Henwood v. Unisource Worldwide, Inc., Civ. No. 3:01cv0996 (AWT), 2006 WL 2799589, at *14-19 (D.Conn. Sept. 29, 2006), we hold that Appellant's state and common law claims were properly dismissed.
Regarding Henwood's federal age discrimination claim, we affirm the grant of summary judgment to Unisource because, assuming arguendo that Henwood made out a prima facie case of age discrimination, thereby satisfying the first prong of our three-prong burden-shifting framework, see D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir. 2007), Henwood has failed to offer sufficient evidence to satisfy the third prong. That is, he has not presented evidence sufficient to allow a reasonable juror to find that the legitimate, non-discriminatory explanations that Unisource offered for each of the alleged adverse employment actions "were not the only reasons and that the prohibited factor was at least one of the `motivating' factors." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (quotation marks and citation omitted). Unisource explained (1) that it removed Henwood from the Watchtower Bible and Tract Society ("Watchtower") account because Watchtower refused to work with him or any other sales representative; (2) that it did not pay him any commissions on the Websource account with Watchtower because this account was different from the Watchtower account that Henwood had serviced and because Watchtower insisted that no sales representative receive commissions from the orders it placed with Websource; (3) that it did not pay him a percentage of the commissions it subsequently received from Fraser Papers, Inc. ("Fraser") based on Fraser's direct sales to Watchtower because it believed those payments to be "disengagement fees," attributable to Fraser's desire to maintain its relationship with Unisource, not to Henwood's prior activities on the Watchtower account; (4) that the President of Websource, Jim O'Toole, offered Henwood a salaried trial period of six months (ending around his sixty-fifth birthday) because, based on experience with another salesman, O'Toole believed six months to be a reasonable amount of time for Henwood to transition onto other accounts; and (5) that Unisource did not make subsequent arrangements for Henwood because he resigned before O'Toole had an opportunity to assess Henwood's future role at the company. Of these legitimate, non-discriminatory explanations, Henwood has called into question the fourth (through his sworn testimony that O'Toole prevented him from developing new accounts), but this brings him no closer to showing that unlawful discrimination was one of Unisource's motivating factors. Therefore, he cannot meet his burden. See Fagan v. N.Y. State Elec. Gas Corp., 186 F.3d 127, 135 (2d Cir. 1999) ("[E]ven if we view the evidence as creating an issue of fact on pretext, appellant must point to evidence from which a fact-finder could infer that the pretext was masking unlawful discrimination." (internal quotation marks omitted)).
We have considered all of Appellant's arguments, and we find them without merit. Accordingly, the judgment of the District Court is AFFIRMED.