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Docket Number

15-1155-cv

Attorney(S)

For Plaintiff-Appellant: Peter A. Hurwitz, New York, NY. For Defendant-Appellee: Susanne Kantor, Greg A. Riolo, Jackson Lewis P.C., White Plains, NY.

Judges

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

Acts

The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions
Labor — Age Discrimination In Employment — Congressional Statement Of Findings And Purpose

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Smart Summary

Summary of Opinion: Friedman v. Swiss Re America Holding Corp., No. 15-1155-cv (2d Cir. Mar. 18, 2016) (Summary Order)

Factual and Procedural Background

Plaintiff-Appellant Gene Friedman sued his employer, Swiss Re America Holding Corporation ("Swiss Re"), alleging unlawful employment discrimination on the basis of religion (Title VII) and age (ADEA). The United States District Court for the Southern District of New York granted summary judgment for Swiss Re, and Friedman appealed. The Court of Appeals reviewed the district court's March 13, 2015 judgment.

Key factual assertions reflected in the opinion include: Friedman was terminated as part of a reduction in workforce ("RIF"); he alleges he was 50 years old at the time, qualified for his position, and was replaced by a younger, allegedly less qualified employee. For his Title VII claim, Friedman relied on an allegation that a supervisor, Risto Wieland, made an anti-Semitic remark that was communicated to Friedman by a co-worker, Frank Bettineschi. For his ADEA claim, Friedman relied on evidence including alleged ageist comments by Wieland, statistical evidence that 31 of 37 employees terminated in the RIF were older than 40, and a decline in his end-of-year bonus under Wieland's supervision.

The Second Circuit considered the parties' arguments, reviewed the record de novo for summary judgment purposes, and issued a summary order affirming in part, vacating in part, and remanding for further proceedings consistent with the opinion.

Legal Issues Presented

Whether the district court correctly granted summary judgment to Swiss Re on Friedman's Title VII religious-discrimination claim, particularly whether Friedman's evidence that a supervisor made an anti-Semitic remark (offered through a co-worker) constituted admissible evidence of pretext.
Whether the district court correctly granted summary judgment to Swiss Re on Friedman's ADEA age-discrimination claim, including whether the RIF offered by Swiss Re was a legitimate, nondiscriminatory reason and whether Friedman's evidence created a genuine issue of material fact as to pretext and discriminatory intent.

Arguments of the Parties

Plaintiff-Appellant's Arguments

Friedman argued his termination, though characterized by Swiss Re as part of a RIF, was pretextual and motivated by discriminatory animus: for Title VII, by anti-Semitic bias; for the ADEA, by age discrimination.
For Title VII, Friedman relied on an account that his onetime supervisor, Risto Wieland, made an anti-Semitic remark that was reported to Friedman by colleague Frank Bettineschi.
For the ADEA claim, Friedman asserted he satisfied a prima facie case (age 50, qualified, fired, replaced by younger/less qualified employee) and supplemented that with (a) alleged ageist comments by superiors (including Wieland), (b) statistical evidence that a majority of those discharged in the RIF (31 of 37) were over 40, and (c) a decrease in his end-of-year bonus while under Wieland's supervision—together showing discriminatory intent or pretext.

Defendant-Appellee's Arguments

Swiss Re maintained that Friedman's termination was part of a legitimate RIF, which constitutes a lawful, nondiscriminatory reason for the employment decision.
Swiss Re and the district court treated Friedman's proffered statement about an anti-Semitic remark as inadmissible hearsay and thus insufficient to show pretext on the Title VII claim.
The district court concluded that the RIF explanation was a legitimate nondiscriminatory reason and that the record did not, as a matter of law, permit a finding of discriminatory intent sufficient to survive summary judgment on the ADEA claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Delaney v. Bank of Am. Corp., 766 F.3d 163 (2d Cir. 2014)	Standard of review for summary judgment in the Second Circuit (de novo review; construe facts in favor of non-moving party).	Used to state the governing summary-judgment standard and to support that a RIF can be a legitimate nondiscriminatory reason for termination.
Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73 (2d Cir. 2009)	Authority cited in explaining summary-judgment review and construction of facts for the non-moving party.	Cited as part of the standard for reviewing summary judgment de novo and drawing inferences against the movant.
Global Network Commc'ns, Inc. v. City of New York, 562 F.3d 145 (2d Cir. 2009)	Restatement of the summary-judgment standard: no genuine issues of material fact and judgment warranted as a matter of law.	Referenced in describing the legal test the court uses to uphold a grant of summary judgment.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)	Burden-shifting framework for discrimination claims: prima facie case, employer's legitimate nondiscriminatory reason, plaintiff's proof of pretext.	Applied as the governing framework for analysis of both Title VII and ADEA claims; elements of a prima facie case are listed from McDonnell Douglas.
Carlton v. Mystic Transp., Inc., 202 F.3d 129 (2d Cir. 2000)	Characterization of the plaintiff's prima facie burden as "minimal."	Used to support the conclusion that Friedman met the minimal prima facie burden for his ADEA claim.
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)	Interpretation of the ADEA requiring the plaintiff to show age was a "but-for" cause of termination.	Cited to articulate the standard for causation the plaintiff must meet under the ADEA; the Court acknowledges this standard in evaluating Friedman's claim at McDonnell Douglas step three.
Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93 (2d Cir. 2001)	Instruction that courts should consider the record as a whole, as a jury would, to determine whether there is a reasonable inference of discriminatory intent.	The panel applied Byrnie to criticize the district court's approach of analyzing pieces of evidence in isolation rather than considering the cumulative record.
Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d 127 (2d Cir. 1999)	Statement that replacement of an older worker by a younger worker does not itself prove unlawful discrimination.	Quoted by the district court; the Second Circuit observed Friedman did not rely on the replacement alone but combined it with additional evidence.
Leibowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009)	Principle that a prima facie case combined with additional evidence of pretext can create material issues of disputed fact sufficient to survive summary judgment.	Relied upon to conclude that Friedman's combined evidence (prima facie showing plus comments, statistics, bonus decline) could defeat summary judgment on the ADEA claim.
Friedman v. Swiss Re Am. Holding Corp., No. 11 Civ. 1792, 2015 WL 2330149 (S.D.N.Y. Mar. 9, 2015)	District-court judgment granting summary judgment for Swiss Re; used for factual and legal baseline in the appeal.	The Second Circuit reviewed and either affirmed or reversed parts of that district-court judgment (affirming Title VII reasoning; vacating the grant as to the ADEA claim and remanding).

Court's Reasoning and Analysis

The Second Circuit began by stating the procedural posture and standards of review: it reviewed the district court's grant of summary judgment de novo, construing facts in favor of the non-moving party and applying the standard that summary judgment is appropriate only where no genuine issue of material fact exists (citing Delaney, Aulicino, and Global Network).

It applied the McDonnell Douglas burden-shifting framework to both Title VII and ADEA claims. The court outlined the prima facie elements (protected-class membership; qualification; adverse action; circumstances permitting an inference of discrimination) and explained that if a plaintiff establishes a prima facie case, the employer must present a legitimate, nondiscriminatory reason; if the employer does so, the plaintiff must then show that reason is pretextual.

Title VII analysis: The panel agreed with the district court that Swiss Re had articulated a legitimate nondiscriminatory reason for termination — the RIF. Friedman attempted to show pretext by relying on an alleged anti-Semitic remark by Wieland communicated to him by Bettineschi. The court concluded that Friedman's proffer of Bettineschi's statement (that Wieland made the remark) was offered for the truth of the matter asserted and therefore constituted hearsay. Because the proffered statement was hearsay and thus inadmissible for its truth, it could not sustain Friedman's Title VII pretext showing. Accordingly, the court affirmed the grant of summary judgment as to the Title VII claim.

ADEA analysis: The court found that Friedman established a prima facie case of age discrimination on independent review: he was 50, qualified, fired, and allegedly replaced by a younger, less qualified employee. The Court agreed with the district court that Swiss Re's RIF is a legitimate nondiscriminatory reason under McDonnell Douglas and Second Circuit precedent.

At the pretext stage, however, the Second Circuit concluded the district court erred in two respects. First, the district court improperly treated certain allegedly ageist comments by Wieland as inadmissible hearsay. The panel explained that those statements were offered not for their truth but to demonstrate Wieland's bias and state of mind; under Fed. R. Evid. 801(c) such statements are nonhearsay for that purpose and therefore admissible to show discriminatory animus.

Second, the district court analyzed evidence in isolation rather than considering the record as a whole as a jury would, contrary to Byrnie. The panel criticized the district court's approach of discounting the replacement evidence by noting that replacement alone does not prove discrimination, pointing out that Friedman did not present the replacement allegation in isolation but combined it with alleged ageist comments, statistical evidence (31 of 37 terminated in the RIF were older than 40), and a decline in his bonus under Wieland. The court relied on Leibowitz to hold that the prima facie case together with such additional evidence can create triable issues of fact sufficient to survive summary judgment.

Having identified these errors, the panel concluded that summary judgment on the ADEA claim was not appropriate and that further proceedings were required to assess whether a reasonable jury could find that age was a but-for cause of Friedman's termination.

Holding and Implications

HOLDING: The judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.

Implications and direct consequences:

The grant of summary judgment to Swiss Re on Friedman's Title VII (religion) claim is affirmed; Friedman's Title VII pretext evidence (the anti-Semitic remark attributed to Wieland via Bettineschi) was treated as hearsay when offered for its truth and therefore insufficient to defeat summary judgment.
The grant of summary judgment to Swiss Re on Friedman's ADEA (age) claim is vacated. The Second Circuit held that (a) certain age-related statements were admissible nonhearsay to show bias, and (b) the district court should have considered the totality of the record (prima facie evidence plus additional evidence—comments, statistical evidence regarding the RIF, and bonus decline) in deciding whether a reasonable jury could find age discrimination. The case is remanded for further proceedings on the ADEA claim.
The opinion is a summary order; as noted in the opinion, rulings by summary order do not have precedential effect. The court’s decision does not establish new precedent beyond its application to the facts and issues on this record.

For the court: Catherine O'Hagan Wolfe, Clerk. This document summarizes only the information contained in the provided opinion and does not add or infer facts beyond that text.

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GENE FRIEDMAN, Plaintiff-Appellant, v. SWISS RE AMERICA HOLDING CORP., Defendant-Appellee.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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 "SUMMARY 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 18 day of March, two thousand sixteen. Present: PIERRE N. LEVAL, DEBRA ANN LIVINGSTON , SUSAN L. CARNEY, Circuit Judges. For Plaintiff-Appellant: Peter A. Hurwitz, New York, NY. For Defendant-Appellee: Susanne Kantor, Greg A. Riolo, Jackson Lewis P.C., White Plains, NY.

UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.

Plaintiff-Appellant Gene Friedman ("Friedman") appeals the March 13, 2015 judgment of the United States District Court for the Southern District of New York (Briccetti, J.) granting summary judgment for Defendant-Appellee Swiss Re America Holding Corporation ("Swiss Re"). Friedman alleges unlawful employment discrimination on the basis of religion and age, 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, 29 U.S.C. §§ 621-34 ("ADEA"). We assume the parties' familiarity with the underlying facts and procedural history of the case, and with the issues on appeal.

We review de novo a district court's grant of summary judgment, "constru[ing] the facts in the light most favorable to the non-moving party and . . . resolv[ing] all ambiguities and draw[ing] all reasonable inferences against the movant." See Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (quoting Aulicino v. N.Y.C Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)). We uphold a grant of summary judgment "if the evidence, viewed in the light most favorable to the party against whom it is entered, demonstrates that there are no genuine issues of material fact and that the judgment is warranted as a matter of law." Global Network Commc'ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009).

in both the Title Vii and ADEA context, we apply the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this framework, a plaintiff must first establish a prima facie case of discrimination by proving: (1) he or she is a member of a protected class; (2) he or she was qualified for the position; (3) he or she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See id. at 802. if the plaintiff satisfies his or her burden of establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. See id. at 802-03. When the employer meets its burden, the plaintiff can no longer rely on the prima facie case: he or she must prove that the reason presented by the employer was a pretext for unlawful discrimination. See id. at 804.

Upon de novo review, we conclude that, while the district court correctly granted Swiss Re's motion for summary judgment as to Friedman's Title VII claim, it erred in granting summary judgment as to Friedman's ADEA claim. As to his Title Vii claim, Friedman asserts that Swiss Re's articulated reason for discharging him—that the discharge was part of a reduction in workforce ("RIF")—was pretextual, citing an anti-Semitic remark allegedly made by his onetime supervisor Risto Wieland ("Wieland") to another colleague, Frank Bettineschi ("Bettineschi"), who later shared the comment with Friedman. The proposition that Wieland made this anti-Semitic remark was supported solely by Friedman's statement that Bettineschi had told him that Wieland made the remark. Friedman's quotation of Bettineschi as stating that Wieland had made the anti-Semitic remark was proffered for the truth of what Friedman said Bettineschi had told him. Accordingly this was hearsay.

Friedman's ADEA claim, however, is more substantial. First, on an independent review of the record, we are persuaded that he established a prima facie case of age discrimination. See McDonnell Douglas, 411 U.S. at 802-04 (stating elements of prima facie case of discrimination). Friedman (1) was 50 years old, (2) was qualified for his position, (3) was fired, and (4) was allegedly replaced by a younger, less qualified employee. Accordingly, he met his "minimal" burden to set out a prima facie case of discrimination. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). At McDonnell Douglas step two, we agree with the district court that Swiss Re's RIF constituted a "legitimate non-discriminatory reason" for Friedman's termination. See Friedman, 2015 WL 2330149, at *4; see also Delaney, 766 F.3d at 168 ("We have previously held that a RIF constitutes a legitimate, nondiscriminatory reason for termination of employment.").

The district court assumed that Friedman had established such a prima facie case. See Friedman v. Swiss Re Am. Holding Corp., No. 11 Civ. 1792, 2015 WL 2330149, at *4 (S.D.N.Y. Mar. 9, 2015). --------

At McDonnell Douglas step three, Friedman contends that his inclusion in the RIF was a pretext for unlawful age discrimination. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 173 (2009) (interpreting the ADEA to require the plaintiff to show that age was a "but-for" cause of his termination). The district court rejected this argument, and concluded that Swiss Re was entitled to summary judgment as to Friedman's ADEA claims. See Friedman, 2015 WL 2330149, at *6. We disagree.

The district court erred in two ways. First, it wrongly determined that certain allegedly ageist comments made by Wieland constituted inadmissible hearsay. See id. at *5. These statements were nonhearsay, as Friedman did not seek to introduce them for their truth, but instead to show bias on the part of Wieland. See Fed. R. Evid. 801(c). Second, the district court failed to consider "the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001). Instead, the district court viewed each piece of evidence in isolation. See Friedman, 2015 WL 2330149, at *4-5. For instance, the district court discounted the allegation that Swiss Re replaced Friedman with a younger, less- qualified employee because "the replacement of an older worker with a younger worker or workers does not itself prove unlawful discrimination." Id . at *5 (emphasis added) (quoting Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999)). But Friedman did not make this allegation in isolation. Instead, he bolstered his case with evidence of ageist comments by superiors at Swiss Re, marshaling statistics indicating that a majority of the employees terminated pursuant to the RIF (31 of 37) were older than 40 years of age, and noting a decline in his end-of-year bonus under Wieland's supervision. Thus, Friedman's "prima facie case, combined with [his] additional evidence of pretext . . . , has created material issues of disputed fact . . . sufficient to survive summary judgment." Leibowitz v. Cornell Univ., 584 F.3d 487, 503 (2d Cir. 2009).

We have considered Friedman's remaining arguments and find them to be without merit. Accordingly, we AFFIRM in part, VACATE in part, and REMAND the March 13, 2015 judgment of the district court for further proceedings consistent with this opinion.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

Friedman v. Swiss Re Am. Holding Corp.