16-270 Marcus v. Leviton Manufacturing

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of September, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

MARC MARCUS, Plaintiff‐Appellant,

v. 16‐0270‐cv

LEVITON MANUFACTURING COMPANY, INC., ʺJOHN DOE,ʺ #1‐5, XYZ CORPORATION, #1‐5, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: JOSEPH H. NEIMAN, Hackensack, NJ.

FOR DEFENDANT‐APPELLEE DAVID S. GREENHAUS, Marc S. Wenger, LEVITON MANUFACTURING Jackson Lewis P.C., Melville, NY. COMPANY, INC.: Appeal from the United States District Court for the Eastern District of

New York (Feuerstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Marc Marcus appeals from the district courtʹs judgment

entered January 14, 2016, dismissing this action against defendant‐appellee Leviton

Manufacturing Company, Inc. (ʺLevitonʺ). By order entered January 6, 2016, the district

court granted Levitonʹs motion to dismiss the amended complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). Marcusʹs amended complaint alleged (1) age

discrimination in violation of the Age Discrimination in Employment Act of 1967 (the

ʺADEAʺ),

et seq., and the New York State Human Rights Law (the

ʺNYSHRLʺ), NY CLS Exec § 296; (2) retaliation in violation of Title VII of the Civil

Rights Act of 1964 (ʺTitle VIIʺ), 42 U.S.C. § 2000e et seq., and the NYSHRL; (3) hostile

work environment in violation of Title VII and the NYSHRL; and (4) breach of contract.

We review de novo a district courtʹs grant of a motion to dismiss. Fink v. Time Warner

Cable,

, 740‐41 (2d Cir. 2013). We assume the partiesʹ familiarity with the

facts, procedural history, and issues for review.

I. Scope of the Appeal

In his brief on appeal, Marcus identifies four issues for review: age

discrimination under the ADEA, age discrimination under the NYSHRL, retaliation

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under the NYSHRL, and hostile work environment under the NYSHRL. Marcus Br. 2.

Marcus does not include in the issues presented the dismissal of his Title VII retaliation

and hostile work environment claims and breach of contract claims, nor does he

address those claims. Accordingly, he has waived his right to appeal the dismissal of

those claims. See United States v. Quiroz,

(2d Cir. 1994) (arguments not

raised on appeal are deemed waived).

While Marcus has appealed the district courtʹs dismissal of his NYSHRL

retaliation claims, his position is meritless. Marcusʹs sole argument on this point is that

the district court should have evaluated his NYSHRL claims under the relaxed ʺnotice

pleadingʺ standards applied by New York state courts, rather than the more demanding

plausibility standard established by the Supreme Court in Bell Atlantic Corp. v. Twombly,

(2007), and Ashcroft v. Iqbal,

(2009). This is plainly incorrect. It

is well established that a federal court sitting in diversity applies federal rules of

procedure to a plaintiffʹs claims under both state and federal law. Hanna v. Plumer,

(1965) (ʺ[F]ederal courts [sitting in diversity] are to apply state substantive

law and federal procedural law.ʺ). Federal courts routinely apply the Twombly‐Iqbal

standard to claims raised under the NYSHRL, and the district court was correct to do so

here. See, e.g., Cooper v. New York State Depʹt of Labor,

(2d Cir. 2016)

(applying federal pleading standards to retaliation claims under the NYSHRL).

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The only rulings that Marcus substantively discusses in his brief are those

relating to his claims for age discrimination pursuant to the ADEA and NYSHRL.

Marcus Br. at 7‐9, 17‐18. Accordingly, these are the only claims preserved for appeal.

II. Age Discrimination Under the ADEA

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff asserting an

employment discrimination complaint under the ADEA must plausibly allege that

adverse action was taken against her by her employer, and that her age was the ʺbut‐

forʺ cause of the adverse action. See Vega v. Hempstead Union Free Sch. Dist.,

(2d Cir. 2015).1 A plaintiff must plead facts that give ʺplausible support to a minimal

inferenceʺ of the requisite discriminatory causality. Littlejohn v. City of New York,

, 310‐11 (2d Cir. 2015). A plaintiff must supply sufficient factual material, and

not just legal conclusions, to push the misconduct alleged in the pleading beyond the

realm of the ʺconceivableʺ to the ʺplausible.ʺ See Vega,

(citing Ashcroft v.

Iqbal,

(2009)).2 That Marcusʹs termination is an adverse employment

1 For some forms of discrimination, such as those covered by Title VII, the plaintiffʹs membership in a protected class need only be a motivating factor in the adverse employment action taken; for age discrimination claims, however, the age of the plaintiff must be the ʺbut‐forʺ cause. See Vega,

(citing Gross v. FBL Fin. Servs., Inc.,

(2009)). 2 The district court applied the McDonnell Douglas burden‐shifting framework to the motion to dismiss. Marcus v. Leviton Mfg. Co., No. 15‐CV‐656(SJF)(GRB),

, at *2 (E.D.N.Y. Jan. 6, 2016). This was error, for McDonnell Douglas is an evidentiary standard, not a pleading standard, and is therefore not the relevant standard at the 12(b)(6) stage. See Littlejohn,

. Because we conclude, on our de novo review of the amended complaint, that it fails to state a plausible cause of action, we do not remand for the district court to correct its error. ‐ 4 ‐

action is undisputed; hence the only question before the Court is whether Marcus pled

sufficient facts to plausibly support a minimal inference of ʺbut‐forʺ causality between

his age and his termination. We conclude that he did not.

Marcus relies primarily on three factual assertions to support an inference

that age discrimination was the ʺbut‐forʺ cause of his termination. First, Marcus alleges

that the defendant was attempting to get ʺyoungerʺ by terminating older employees

and replacing them with younger hires. Amend. Compl. ¶ 28. The amended

complaint, however, is nearly bereft of any specific facts to support this conclusion. He

provides only a single name and he offers no dates, ages, or reasons with respect to the

termination of other employees. Such skeletal pleading provides no more than ʺnaked

assertions devoid of further factual enhancementʺ and does not allow the court to ʺdraw

the reasonable inference that the defendant is liable for the misconduct alleged.ʺ Iqbal,

(internal citations omitted).

Second, Marcus alleges that Levitonʹs proffered reason for his termination

‐‐ his yelling and profanity ‐‐ was pretext. Amend. Compl. ¶ 18. He alleges that two

other employees used profanity in the past and were not disciplined; one was

ʺsubstantially younger than plaintiffʺ and the other ʺwas not . . . considerably younger

than plaintiff.ʺ Id. ¶ 20. Without any information as to whether these employees were

otherwise similarly situated or the specifics of their conduct, the mere allegation that

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two other employees ‐‐ one younger and one similar in age ‐‐ used profanity without

being fired does not give rise to even a minimal inference of age discrimination.

Third, the amended complaint alleges that the defendant sought to replace

Marcus with someone less experienced, and that, on ʺinformation and belief,ʺ Marcus

was replaced by a younger employee. Amend. Compl. ¶¶ 29‐30. The amended

complaint alleges no facts that would support an inference that this decision was made

because of age. Marcus does not even provide the age of the new employee. Without

more, the mere fact that an older employee was replaced by a younger one does not

plausibly indicate discriminatory motive.

Taken individually and as a whole, the conclusory and speculative facts

alleged in the amended complaint do not plead a claim of discrimination under the

ADEA.

III. Age Discrimination Under the NYSHRL

As the legal standards governing age discrimination claims under the

NYSHRL have long been considered to be identical to those under the ADEA, this

Court has assumed that ʺbut‐forʺ causation is required to support a claim under the

NYSHRL. See Gorzynski v. JetBlue Airways Corp.,

, 105 n.6 (2d Cir. 2010)

(citing Sutera v. Schering Corp.,

, 16 n.2 (2d Cir. 1995)). Accordingly, Marcusʹs

age discrimination claim under the NYSHRL fails for the same reasons as his age

discrimination claim under the ADEA. Even assuming the lower ʺmotivating factorʺ

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standard applicable to a Title VII claim applies to NYSHRL age discrimination claims,

Marcusʹs claim would still fail. For the reasons discussed above, the amended

complaint fails to plead sufficient facts to support a minimal inference that age was a

motivating factor, much less the but‐for cause, for his termination.

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We have considered Marcusʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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