
    Christopher SPIESS, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.
    No. 11-3409-cv.
    United States Court of Appeals, Second Circuit.
    Sept. 25, 2012.
    Steven E. Laprade and Christina A. Agola, Rochester, N.Y., for Appellant.
    Margaret A. Clemens and Patrick J. Simpson, Littler Mendelson, Rochester, N.Y., for Appellee.
    Present: ROSEMARY S. POOLER, BARRINGTON D. PARKER and RICHARD C. WESLEY, Circuit Judges.
   SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Plaintiff-Appellant Christopher Spiess brought suit alleging age and sex discrimination claims pursuant to the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the New York State Human Rights Law (“NYSHRL”). The district court granted Xerox’s motion for summary judgment pursuant to Fed. R. Civ. Proc. 56(c). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We conclude the district court properly granted summary judgment in favor of the defendants on the grounds that plaintiff was unable to satisfy his initial burden of showing a prima facie case of discrimination under the McDonnell Douglas standard for the ADEA and Title VII. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The fact that numerous employees terminated for misusing Xerox’s information technology systems were male and over the age of forty does not create an inference that Xerox discriminated against Spiess because Xerox also disciplined and discharged employees who were female and under the age of forty. Appellant thus did not satisfy his initial burden of establishing a prima facie case of age discrimination.

Alternatively, also pursuant to McDonnell Douglas the plaintiff did not raise a genuine issue as to whether the defendant’s claims as to termination were pre-textual. Xerox articulated a legitimate, nondiscriminatory reason for the Appellant’s termination — that he violated Xerox’s internet and email use policy and that his violations were more egregious than those of his coworkers, who were not discharged. As this Court has recognized, it is not the province of Courts to second-guess business decisions. What matters is why the employer took action, not whether it was wise to do so. See Seils v. Rochester City Sch. Dist., 99 Fed.Appx. 350 (2d Cir.2004). Subsequently, when the burden shifted to Appellant, he failed to show that a reasonable jury could find “by the preponderance of the evidence, that age was a ‘but-for’ cause of the challenged employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010).

Plaintiffs’ remaining arguments are without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.  