Sheila A. STONE, Plaintiff-Appellant, v. BOARD OF EDUCATION OF SARANAC CENTRAL SCHOOL DISTRICT, Defendant-Appellee, 153 F. App'x 44

SUMMARY ORDER UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. Plaintiff Sheila A. Stone appeals from an April 21, 2005 decision and order of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge) granting defendant’s motion for

summary judgment and dismissing her age discrimination claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. In the District Court proceeding, plaintiff alleged that in 2002 she was denied employment as a full-time elementary school teacher at Morrisonville Elementary School in the Saranac Central School District on the basis of being forty years of age or older.

In support of her claim, plaintiff asserted, inter alia, that (1) the two younger candidates who were hired in her place were substantially less qualified; (2) that the Morrisonville Elementary School had a statistical track record of favoring younger applicants; (3) that the hiring committee intentionally destroyed documents tending to show that she was the best candidate for the open positions; (4) that the hiring committee failed to include a former elementary school principal who would have championed plaintiffs application; and (5) that the hiring committee improperly used the date of plaintiffs teaching certification as a proxy for discriminating against her on the basis of age.

Reiterating many of the same arguments on appeal, plaintiff contends that the District Court erred in granting

summary judgment and refusing to allow plaintiff to proceed to a jury trial on a “mixed motive” theory of discrimination because she raised genuine issues of material fact as to whether defendant’s purported age-neutral explanations for its hiring decision were merely pretextual. Plaintiff asks this Court to reverse the District Court’s decision that she failed to present any evidence — either direct, statistical, or circumstantial — tending to establish that age discrimination was “more likely than not” a motivating factor in defendant’s hiring decision. We review appeals from a district court’s grant of

summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. See, e.g., James v. New York Racing Ass’n, 233 F.3d 149, 152 (2d Cir.2000). “Even where facts are disputed, in order to defeat

summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor.” Byrnie v. Town of Cromwell[] Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001). Accordingly, “ ‘the non-moving party may not rely on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Scotto v. Almenas, 143 F.3d 105,114 (2d Cir.1998)).

Once plaintiff made out a prima facie case of age discrimination under the ADEA and defendant proffered valid age-neutral explanations for its hiring decision — namely, that plaintiff interviewed poorly and did not demonstrate sufficient familiarity with newer teaching methods— plaintiff was required to show that defendant’s stated reasons were merely a pretext for age discrimination. See, e.g., James, 233 F.3d at 154; Gallo v. Prudential Residential Servs., 22 F.3d 1219,1224-25 (2d Cir.1994).

Upon our de novo review of the record, we agree with the District Court’s conclusion that plaintiff failed to present sufficient evidence from which a reasonable factfinder could conclude both (1) that defendant’s stated reason for selecting other qualified candidates is false and (2) that age discrimination was an animating force behind defendant’s decision not to hire plaintiff. See Gallo, 22 F.3d at 1225 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

Even if plaintiff could establish that defendant somehow inaccurately assessed her public speaking and teaching skills or improperly selected other candidates on the basis of their previous ties to Morrisonville Elementary School, such allegations would not support a cause of action under the ADEA. Moreover, in reaching our conclusion we are mindful of the need to “respect the employer’s unfettered discretion to choose among qualified candidates,” Byrnie, 243 F.3d at 103 (quoting Fischbach v. D.C.

Dep’t of Corr., 86 F.3d 1180,1183 (D.C.Cir. 1996)), and will not “act as a super personnel department that second guesses employers’ business judgments,” id. (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999)) (internal quotation marks omitted). Regarding plaintiffs theory of “mixed motive” discrimination, it is well-settled that “to warrant a mixed-motive burden shift, the plaintiff must be able to produce a ‘smoking gun’ or at least a ‘thick cloud of smoke’ to support his allegations of discriminatory treatment.” Raskin v.

Wyatt Co., 125 F.3d 55, 61 (2d Cir.1997). Because plaintiff failed to present sufficient evidence to raise a genuine issue of material fact concerning whether defendant’s decision was motivated, even in part, by age-related animus, the District Court properly granted

summary judgment in relation to plaintffs “mixed motive” claim. # % % * # We have considered all of plaintiffs arguments and found each of them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED. . Plaintiff was fifty years old at the time of the challenged hiring decision.