Rubinow v. Boehringer Ingelheim Pharmaceuticals, Inc.

11-2879-cv
Rubinow v. Boehringer Ingelheim Pharmaceuticals, 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 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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of September, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 SUSAN L. CARNEY,
9 Circuit Judge,
10 JOHN GLEESON,
11 District Judge.*
12
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14 CAROL RUBINOW,
15 Plaintiff-Appellant,
16
17 -v.- 11-2879-cv
18
19 BOEHRINGER INGELHEIM PHARMACEUTICALS,
20 INC.,
21 Defendant-Appellee.
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23
*
The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
1
1 FOR APPELLANT: Mark P. Carey, Mark P. Carey,
2 P.C., Southport, CT.
3
4 FOR APPELLEES: William J. Anthony, Holly L.
5 Cini, Jackson Lewis LLP,
6 Hartford, CT.
7
8 Appeal from a judgment of the United States District
9 Court for the District of Connecticut (Underhill, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14
15 Carol Rubinow was fired from her at-will job as PR
16 Coordinator at Boehringer Ingelheim Pharmaceuticals, Inc.
17 (“BIPI”) for her volatile workplace behavior from 2004-07.
18 She alleges claims of age discrimination under the Age
19 Discrimination in Employment Act (“ADEA”) and Connecticut
20 Fair Employment Practices Act (“CFEPA”) and intentional
21 infliction of emotional distress (“IIED”). She appeals from
22 the judgment of the District Court for the District of
23 Connecticut (Underhill, J.) granting BIPI’s motion for
24 summary judgment on all claims. We review the district
25 court’s grant of summary judgment de novo. In re “Agent
26 Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).
27 We assume the parties’ familiarity with the underlying
28 facts, the procedural history, and the issues presented for
29 review.
30
31 [1]Summary judgment motions in age discrimination cases
32 under the ADEA and CFEPA are decided using the McDonnell
33 Douglas burden-shifting test. See Hayes v. Compass Grp.
34 USA, Inc., 343 F. Supp. 2d 112, 118 n. 2 (D. Conn. 2004)
35 (consolidating ADEA and CFEPA claims because “Connecticut
36 law in relevant part follows the ADEA”). “Under McDonnell
37 Douglas, the plaintiff bears the initial burden of
38 establishing a prima facie case of discrimination. If the
39 plaintiff does so, the burden shifts to the defendant to
40 articulate some legitimate, nondiscriminatory reason for its
41 action. Once such a reason is provided, the plaintiff can
42 no longer rely on the prima facie case, but may still
43 prevail if she can show that the employer’s determination
44 was in fact the result of discrimination.” Gorzynski v.
45 JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)
46 (internal citations and quotations omitted).
47
2
1 “‘[A] plaintiff bringing a disparate-treatment claim
2 pursuant to the ADEA must prove, by a preponderance of the
3 evidence, that age was the ‘but-for’ cause of the challenged
4 adverse employment action’ and not just a contributing or
5 motivating factor.” Id. (quoting Gross v. FBL Fin. Servs.,
6 557 U.S. 167, 180 (2009)).
7
8 The only issue here is the third prong: whether BIPI’s
9 explanation for Rubinow’s termination was pretext for
10 discrimination. In order to defeat BIPI’s summary judgment
11 motion, Rubinow needed to show that “a reasonable jury could
12 conclude by a preponderance of the evidence that [her] age
13 was a ‘but for’ cause of [BIPI’s] decision to fire her.”
14 Id. at 107. She did not.
15
16 Rubinow argues that the District Court applied a
17 tougher “pretext plus” standard. That position misconstrues
18 both the “but for” standard in Gorzynski, see id. at 105-07,
19 as well as the district court’s observation at the summary
20 judgment hearing that Rubinow needed to proffer “more
21 evidence than speculation.” See, e.g., Hester v. BIC Corp.,
22 225 F.3d 178, 185 (2d Cir. 2000) (“[I]n an employment
23 discrimination action, Rule 701(b) bars lay opinion
24 testimony that amounts to a naked speculation concerning the
25 motivation for a defendant's adverse employment decision.”).
26
27 Next, Rubinow suggests that BIPI’s explanation is not
28 credible because the allegations in her probationary
29 Performance Improvement Plan (“PIP”) were “fabricated.”
30 However, she does not fundamentally dispute the specific
31 accounts of her insubordination which led to her termination
32 (for example, when Rubinow asked her manager if she had
33 “stopped taking her medication”).
34
35 Rubinow argues that some favorable performance
36 evaluations raise a genuine issue of material fact as to
37 whether BIPI’s explanation for her termination was pretext.
38 They do not. Ms. Rubinow’s isolated positive feedback for
39 her fleeting improvement is entirely consistent with BIPI’s
40 explanation for her termination, which is that she was fired
41 for sporadic inappropriate behavior over the course of a few
42 years. Even viewing Rubinow’s positive performance feedback
43 “in the light most favorable to [her], there are no material
44 inconsistencies that might cause a reasonable jury to doubt
45 [BIPI’s] explanation for [Rubinow’s] discharge from
46 employment.” Dister v. Continental Grp., Inc., 859 F.2d
47 1108, 1116 (2d Cir. 1988).
3
1 Although Rubinow disagrees with the circumstances
2 surrounding her termination, “the ADEA does not make
3 employers liable for doing stupid or even wicked things; it
4 makes them liable for discriminating, for firing people on
5 account of their age.” Norton v. Sam’s Club, 145 F.3d 114,
6 120 (2d Cir. 1998). Without a nexus between her age and
7 termination, Rubinow’s evidence cannot surmount the
8 requisite “but for” hurdle. We therefore must uphold the
9 grant of summary judgment on her age discrimination claims.
10
11 [2] As to Rubinow’s IIED claim, she complains that she
12 was bothered by the “tone” used in certain workplace
13 conversations and that she was “distraught” about negative
14 comments she received during her performance reviews. These
15 ordinary workplace experiences clearly do not rise to the
16 level of being “so outrageous in character, and so extreme
17 in degree, as to go beyond all possible bounds of decency,
18 and to be regarded as atrocious and utterly intolerable in a
19 civilized society.” Reed v. Town of Branford, 949 F. Supp.
20 87, 92 (D. Conn. 1996).
21
22 Finding no merit in Ms. Rubinow’s remaining arguments,
23 we hereby AFFIRM the judgment of the district court.
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
29
30
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