Brenda GRASSO, Plaintiff-Appellant, v. EMA DESIGN AUTOMATION, INC., and Emmanuel Marcano, Defendants-Appellees, 618 F. App'x 36

SUMMARY ORDER Plaintiff-appellant Brenda Grasso appeals from the judgment of the United States District Court for the Western District of New York (Telesca, /.), granting

summary judgment in favor of defendants-appellees EMA Design Automation, Inc., and Emmanuel Marcano. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. 1. Plaintiffs job was eliminated and she was terminated. She claims that this was retaliation against her for engaging in protected activity (filing an administrative complaint of discrimination) under Title VII. See 42 U.S.C. § 2000&-3. We disagree. To establish a prima facie case of retaliation under the burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 98 S.Ct. 1817, 86 L.Ed.2d 668 (1973), a plaintiff must show “1) participation in a protected activity; 2) the defendant’s knowledge of the protected activity; 3) an adverse employment action; and 4) a causal connection between the protected activity and the adverse employment action.” Zann Kwan v.

Andalex Grp., LLC, 737 F.3d 834, 844 (2d Cir.2013) (citations and quotation marks omitted). “Once the plaintiff has established a pri-ma facie showing of retaliation, the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action.” Id. at 846. “For the case to continue, the plaintiff must then come forward with evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000).

The plaintiff must demonstrate that “the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013). However, “ ‘but-for’ causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have'occurred in the absence of the retaliatory motive.” Kwan, 737 F.3d at 845-46 (citing Nassar, 133 S.Ct. at 2526, 2533).

Plaintiff has failed to raise a triable issue of fact that defendant’s legitimate, non-retaliatory reasons were pretextual. It is undisputed that between 2009 and 2011, defendant experienced the effects of an ecohomic recession that caused its revenues to decline and led to cuts to its workforce, including the termination of more than a quarter of its employees between 2009 and 2010. Defendants stated that the reason plaintiffs position was eliminated was because of this financial distress and because they realized they could operate efficiently without plaintiffs position.

Moreover, it is further undisputed that plaintiff turned down defendant’s offer of a different position after her original position was eliminated and that plaintiff had not been coming to work in the days leading up to her termination despite a doctor’s note stating she could return. A company-wide reduction in force is a legitimate non-discriminatory reason for employment termination, see Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir.2014), and refusal to appear for a job or perform job duties is a legitimate, nondiscriminatory reason for adverse employment action, see Van Zant v.

KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996). Plaintiffs position was eliminated as part of a reduction in force due to economic concerns, she refused to accept the new position that was offered to her, and she was no longer coming to work. Plaintiff points to no record evidence that defendants’ legitimate reasons for her termination were pretextual. Although plaintiff is correct that the elimination of her position and her subsequent termination were close in time to her filing the discrimination complaint, this is not enough to raise a triable issue of fact as to pretext. See El Sayed v.

Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010) (“The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext.”). For the foregoing reasons, and finding no merit in Grasso’s other arguments, we hereby AFFIRM the judgment of the district court. .

Plaintiff also claims that she engaged in protected activity in an April 19, 2010 meeting in which she asked defendant if he would "treat a man” in the same way he was allegedly treating her. Regardless of whether this was protected activity, see Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989), it does not change the analysis that plaintiff has put forward no evidence that defendants’ reasons were pretextual.