Stephen DiGIROLAMO, Plaintiff-Appellant, v. METLIFE GROUP, INC., Defendant-Appellee, 494 F. App'x 120

SUMMARY ORDER DiGirolamo appeals from a

summary judgment of the District Court in favor of MetLife Group, Inc. (“MetLife”). We assume familiarity with the underlying facts and procedural history of this case. This appeal arises out of DiGirolamo’s 2007 demotion and firing by MetLife, for which MetLife blamed DiGirolamo’s allegedly poor job performance.

DiGirolamo alleges that MetLife’s proffered rationale for his demotion and firing was pretextual, and that MetLife in fact discriminated against him because of his age (48 years old), in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), and the New York State Human Rights Law, (“NYSHRL”), N.Y. Exec. Law § 290 et seq. Having properly exhausted his administrative remedies, DiGirolamo brought suit against MetLife pursuant to the ADEA and the NYSHRL. After completion of discovery, MetLife moved for

summary judgment pursuant to Federal Rule of Civil Procedure 56. The District Court granted the motion on June 6, 2011, holding that DiGirolamo had failed to show that MetLife’s proffered non-discriminatory reason for his demotion and firing was a mere pretext and that DiGiro-lamo would not have been demoted or terminated “but for” his age. On appeal, DiGirolamo alleges that the District Court erred in granting

summary judgment for MetLife. ‘We review de novo the District Court’s decision to grant

summary judgment in favor of defendants], and, in the course of that review, we draw all permissible factual inferences in favor of ... the non-moving party.” Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir.2009).

Summary judgment may be granted only where no “genuine disputes over material fact exist between the parties which should properly be submitted to a jury.” Bymie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001). Mere “conclusory allegations or unsubstantiated speculation” by the plaintiff will not defeat

summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). ADEA and NYSHRL claims are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Gorzynshi v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010) (applying McDonnell Douglas to ADEA claim); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.2010) (applying McDonnell Douglas to employment discrimination claims under the NYSHRL).

In order to make out a claim under the ADEA, appellant must demonstrate at the third stage of the McDonnell Douglas test that age discrimination was the “but-for” cause of the alleged adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

We have carefully reviewed the record and the parties’ arguments on appeal, and we conclude that DiGirolamo has not proffered evidence beyond “conclusory allegations or unsubstantiated speculation,” Scot-to, 143 F.3d at 114, sufficient to raise a triable issue of fact as to whether Met-Life’s alleged age-based discriminatory animus was the “but-for” cause — or, indeed, any cause at all — of his demotion and firing. CONCLUSION The June 10, 2011 judgment of the District Court is affirmed, substantially for the reasons stated in its careful and considered June 6, 2011 Decision and Order. .

DiGirolamo originally alleged that MetLife had discriminated against him on the basis of his gender, race, and national origin as well as his age, but voluntarily dismissed those claims prior to the

summary judgment proceedings. . Under the McDonnell Douglas framework, a plaintiff must first make out a prima facie case of discrimination. If he does so, the employer must put forward a legitimate, nondiscriminatory reason for the challenged adverse employment action. If the employer is able to do so, the plaintiff must then demonstrate that the employer’s reason is a mere pretext intended to obscure the employer's true, illegal rationale. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001).

At all times, the plaintiff bears the ultimate burden of persuasion by a preponderance of the evidence. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). The District Court in this case assumed arguendo that DiGirolamo could make out a prima facie case of discrimination, held that MetLife had proffered a legitimate, nondiscriminatory reason for the alleged adverse employment action, and focused its attention on the question of pretext. .

Although we have not yet decided whether NYSHRL claims of age discrimination require a plaintiff to show that age was the “but-for” cause of the discrimination, see Waters v. Gen. Bd. of Global Ministries, 769 F.Supp.2d 545, 559 n. 10 (S.D.N.Y.2011), we agree with the District Court’s holding that DiGirolamo would have failed to demonstrate pretext under either standard. We therefore leave the question of "but-for” causation and the NYSHRL for another day.