Ruby SPENCER, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee, 354 F. App'x 554

SUMMARY ORDER Plaintiff Ruby Spencer (“plaintiff’ or “Spencer”), pro se, appeals from the May 21, 2008 judgment of the District Court, dismissing Spencer’s claim against defendant United Parcel Service (“defendant” or “UPS”) under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., after a bench trial in which plaintiff proceeded pro se. On appeal, plaintiff argues that the District Court erred in making various findings of fact.

Specifically, plaintiff challenges the following findings of fact by the District Court: (1) that her supervisor had not approved her class schedule; (2) that she had been offered a comparable alternative position before or after termination; (3) that there was no “long range plan” to replace Spencer with a temporary employee named Julia Arthur; (4) that an age-related comment made several years before her termination was not evidence of discrimination in the decision to terminate her employment with UPS; and (5) that she had not been “singled-out” for a change in title.

We assume the parties’ familiarity with the facts and procedural history of this case. In reviewing the district court’s decision in a bench trial, we review the court’s conclusions of law de novo and its findings of fact for clear error. See United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir.1996).

Under the clearly erroneous standard, “ ‘[t]here is a strong presumption in favor of a trial court’s findings of fact if supported by substantial evidence,’ ” and the Court “will not upset a factual finding unless [it is] ‘left with the definite and firm conviction that a mistake has been committed.’ ” Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1574 (2d Cir.1994) (citations omitted); see also SNC S.L.B. v. M/v Newark Bay, 111 F.3d 243, 247 (2d Cir.1997).

Moreover, we must “give considerable deference to the district court’s credibility assessments and to its determination as to what inferences should be drawn from the evidence in the record.” Ezelmo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir.1991). In Gross v.

FBL Financial Services, Inc., - U.S. -, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), the Supreme Court held that, under the plain language of the ADEA, which prohibits discrimination “because of’ an individual’s age, an employee must prove by a preponderance of the evidence “that age was the ‘but-for’ cause of the employer’s adverse action,” and not merely one of the motivating factors. Id. at 2351. Here, the burden was on Spencer to prove by a preponderance of the evidence that her age was the “but-for” reason for her termination and that UPS’s stated reason — Spencer’s unwillingness to alter her school

schedule to accommodate her work

schedule or accept a comparable job on a different shift — was not the “but-for” cause for her termination. See id. Because the District Court’s findings that UPS’s stated reasons for termination were the cause of her termination are supported by the evidence, and Spencer has failed to set forth sufficient evidence to counter those findings, she has not satisfied the high burden of showing that the court’s findings were “clearly erroneous.” See Travellers Int’l, A.G., 41 F.3d at 1574. We have reviewed plaintiffs remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the District Court is AFFIRMED.