Calvin HAYDEN, Plaintiff-Appellant, v. WALMART STORES, INC., Defendant-Appellee, 619 F. App'x 22

SUMMARY ORDER Calvin Hayden appeals from the judgment of the United States District Court for the District of Connecticut (Eginton, /.), granting

summary judgment in favor of Defendant-Appellee Walmart Stores, Inc. (“Walmart”) and dismissing Hayden’s race and age discrimination claims brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VH”), 42 U.S.C. §§ 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

The district court assumed without deciding that Hayden had made out prima facie cases of discrimination on the bases of race and age, but held that Hayden had failed to come forward with evidence sufficient for a jury to reasonably find that Walmart’s articulated legitimate, nondiscriminatory reason for Hayden’s termination — his blending of two eyeglass prescriptions without authorization from the patient’s ophthalmologist — was pretext for discrimination. Upon de novo review, we conclude that the grant of

summary judgment was proper. The record is devoid of admissible evidence from which a jury reasonably could infer that discrimination was a motivating factor (or the “but for” cause, as required for Hayden’s ADEA claim) of Walmart’s employment decision. Hayden has not provided admissible evidence of disparate treatment of similarly situated employees of a different race and/or age. As explained in the district court’s opinion, Hayden has not demonstrated that either “Dave” or Amy Pagini were similarly situated.

Moreover, Hayden’s evidence regarding “Dave” is inadmissible hearsay; it is unclear whether it was Dave or another individual who purportedly told Hayden about the incident, but it is clear that Hayden lacked independent knowledge. See Fed.R.Evid. 802. Nor does Hayden cite any admissible evidence of negative comments made by the decisionmakers or any other Walmart personnel regarding his race or age. Hayden does allege that, after Hayden’s termination, Pagini complained that Hayden was too slow and/or forgetful. But this is also inadmissible hearsay.

Hayden claims that Vanessa Byrd, a former Walmart employee, told him that Pagini made these statements. Hayden, who is represented by counsel, did not submit an affidavit or declaration of Byrd in opposition to

summary judgment; the only evidence of these statements having occurred is Hayden’s deposition testimony. Although Pagini’s original statements would be admissible nonhearsay if offered for Pagini’s state of mind, for example, or for another purpose other than to prove the truth of the statements, Hayden points to no exception that allows into evidence Byrd’s out-of-court statements to Hayden. See Fed.R.Evid. 802; Fed.R.Evid. 805; DiStiso v.

Cook, 691 F.3d 226, 230 (2d Cir.2012) (“[Wjhere a party relies on affidavits or deposition testimony to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declar-ant is competent to testify on the matters stated.’” (quoting Fed.R.Civ.P. 56(c)(4))). Because the statements are inadmissible, we need not determine whether these “stray remarks” could sufficiently demonstrate “but for” discrimination under the ADEA. See Fried v. LVI Servs., Inc., 500 Fed.Appx. 39, 41 (2d Cir.2012) (summary order); Henry v.

Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.2010). Most of Hayden’s appellate briefing is devoted to his contention that Walmart’s decision to terminate him for blending the two eyeglass prescriptions was a bad one.

But it is immaterial to Hayden’s federal claims whether Walmart correctly determined that his actions were contrary to its internal policy and/or to state law, and that (in any event) they warranted termination. “Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer’s reasons.” Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir.1988). The reason asserted in this case is not “so lacking in merit as to call into question its genuineness.” Id.

For the foregoing reasons, and finding no merit in Hayden’s other arguments, we hereby AFFIRM the judgment of the district court. . Hayden contends that a white optician, who may (or may not) have been named "Dave,” changed the expiration date of a prescription, and received only a verbal warning. Ray-den’s deposition testimony makes clear that Hayden has no independent knowledge of the circumstances of the incident.

He claimed that someone else, whose name he could not recall — and who may have been the optician who purportedly changed the expiration date or who may have been someone else entirely — told him about the incident. Even if this were not inadmissible hearsay, Hayden provided insufficient detail from which a jury reasonably could infer that "Dave" was similarly situated to Hayden for relevant purposes.