Kassner v. 2nd

Opinion

05-4237-cv Kassner v. 2 nd Avenue Delicatessen Inc.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2005 4 (Argued: February 17, 2006 Decided: July 24, 2007) 5 Docket No. 05-4237-cv 6 ------------------------------------------------------ 7 DIANE KASSNER and MARSHA REIFFE, 8 Plaintiffs-Appellants, 9 JOSEPH FARRINO, 10 Plaintiff, 11 –- v. –-

12 2nd AVENUE DELICATESSEN INC. and JACOB LEBEWOHL, in his official 13 capacity as Owner and General Manager of the 2nd Avenue 14 Delicatessen Inc.,

15 Defendants-Appellees. 16 ------------------------------------------------------ 17 Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge.* 18 Plaintiffs-appellants, who sued alleging age discrimination 19 and retaliation by defendants-appellees in violation of Federal, 20 New York State, and New York City laws, appeal the judgment of 21 the United States District Court for the Southern District of New 22 York (George B. Daniels, Judge) granting defendants’ motion under

* The Honorable Timothy C. Stanceu, United States Court of International Trade, sitting by designation.

1 Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs’ 2 complaint for failure to state a claim upon which relief can be 3 granted and denying as futile plaintiffs’ cross-motion to amend 4 that complaint. 5 AFFIRMED IN PART and VACATED AND REMANDED IN PART.

6 Lee Nuwesra (Jerald Abrams, on the 7 brief), Law Office of Lee Nuwesra, 8 New York, New York, for Plaintiffs- 9 Appellants.

10 Kenneth Kirschner (Michael E. 11 DeLarco, on the brief), Heller 12 Ehrman LLP, New York, New York, for 13 Defendants-Appellees.

14 STANCEU, Judge: 15 Plaintiffs-appellants Diane Kassner and Marsha Reiffe 16 brought an action in the United States District Court for the 17 Southern District of New York in September 2004, alleging age 18 discrimination on the basis of adverse employment actions and 19 retaliation in violation of the Age Discrimination in Employment 20 Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq., the 21 New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 22 et seq., and the New York City Human Rights Law (“NYCHRL”), 23 N.Y.C. Admin. Code § 8-101 et seq. They appeal from the district 24 court’s judgment in favor of defendants-appellees 2nd Avenue 25 Delicatessen Inc. and its owner and general manager, Jacob 26 Lebewohl, entered on July 8, 2005. 27 The district court (George B. Daniels, Judge) granted 28 defendants’ motion to dismiss the complaint for failure to state

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1 a claim upon which relief can be granted and denied as futile 2 plaintiffs’ cross-motion to amend the complaint. The district 3 court ruled that all of Kassner’s claims were time-barred under 4 applicable statutes of limitations, that most of Reiffe’s claims 5 also were time-barred, and that Reiffe’s remaining claims either 6 did not amount to an adverse employment action or were supported 7 by insufficient factual allegations from which the court could 8 infer age discrimination. The district court concluded, further, 9 that allowing plaintiffs to amend the complaint would be futile 10 because plaintiffs’ proposed amended complaint alleged few new 11 facts and because, in restating the same alleged acts by 12 defendants without the references to specific dates that appeared 13 in the complaint as filed, the proposed amended complaint could 14 hide, but not cure, any timeliness deficiencies. 15 We conclude that certain of plaintiffs’ claims were 16 supported by factual allegations sufficient to withstand a motion 17 to dismiss for failure to state a claim upon which relief can be 18 granted. We further conclude that the district court erred in 19 denying the motion to amend the complaint on the ground of 20 futility and direct that the district court, on remand, exercise 21 its discretion under Federal Rule of Civil Procedure 16(b) to 22 determine whether the proposed amendment or different amendments 23 to the complaint should be allowed. For these reasons, we vacate 24 the judgment dismissing the action and remand the matter to the 25 district court for further proceedings in accordance with this 26 Opinion.

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1 I. BACKGROUND 2 When they commenced their action in district court in 2004, 3 plaintiffs Kassner and Reiffe were 79 and 61 years of age, 4 respectively, and were employed as waitresses in a restaurant 5 operated by defendant 2nd Avenue Delicatessen Inc. Kassner had 6 worked for 2nd Avenue Delicatessen Inc. since 1986; Reiffe began 7 her employment there in 1974. On November 26, 2002 and 8 December 20, 2002, prior to bringing this action, Reiffe and 9 Kassner, respectively, filed claims of age discrimination with 10 the Equal Employment Opportunity Commission (“EEOC”) against 2nd 11 Avenue Delicatessen Inc. and Jacob Lebewohl. See Br. for Defs.- 12 Appellees 5. The EEOC issued each plaintiff a right-to-sue form 13 letter dated June 18, 2004. Id. at 6. 14 Plaintiffs filed their complaint in the United States 15 District Court for the Southern District of New York on 16 September 13, 2004, alleging that defendants violated the ADEA, 17 the NYSHRL, and the NYCHRL by discriminating against plaintiffs 18 on account of age and by retaliating against plaintiffs for 19 complaining about age discrimination and for bringing charges 20 alleging age discrimination. The complaint contains various 21 allegations to the effect that defendants discriminated against 22 plaintiffs by assigning them to work shifts and work stations at 23 which earnings were less than those to which younger waitresses 24 were assigned. Compl. ¶¶ 12-13, 21-23. The complaint alleged 25 that defendant Lebewohl and several of his subordinates

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1 repeatedly made degrading comments about Kassner, “including, but 2 not limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of 3 that make-up[,]’ and ‘take off your wig.’” Id. ¶ 14. The 4 complaint further alleged that defendants retaliated against 5 Reiffe by changing her work shift and work station. Id. 6 ¶¶ 20-23. In addition, the complaint claimed that defendant 7 Lebewohl pressured plaintiffs to retire and pointed to the front 8 of the restaurant and said “there’s the door” when they 9 complained about their disparate treatment. Id. ¶¶ 44-45, 50-51, 10 56-57 (emphasis omitted). Plaintiffs sought injunctive relief, 11 lost earnings, compensatory and punitive damages, and an award 12 for attorneys’ fees. Id. ¶ 2, PRAYER FOR RELIEF. 13 On September 22, 2004, nine days after plaintiffs filed the 14 complaint, the district court entered a Civil Case Management 15 Plan and Scheduling Order, pursuant to Rules 16 and 26(f) of the 16 Federal Rules of Civil Procedure. The Case Management Plan and 17 Scheduling Order limited the time for amendment of the pleadings, 18 requiring any amendments to the pleadings to be made by 19 February 1, 2005. 20 Defendants did not file or serve an answer to the complaint 21 but instead, on October 12, 2004, moved to dismiss under Federal 22 Rule of Civil Procedure 12(b)(6) for failure to state a claim 23 upon which relief can be granted. During approximately the next 24 four months, plaintiffs sought and were granted extensions of 25 time in which to respond to the motion to dismiss, to engage in 26 settlement discussions with defendants, and to obtain new

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1 counsel. On March 4, 2005, plaintiffs, through their new 2 counsel, timely filed their opposition to the motion to dismiss 3 and moved to amend their complaint. 4 In a judgment entered on July 8, 2005, the district court 5 granted defendants’ motion to dismiss the complaint for failure 6 to state a claim upon which relief can be granted and denied 7 plaintiffs’ cross-motion to amend the complaint. In its 8 Memorandum Decision and Order, dated July 5, 2005, the district 9 court concluded that plaintiffs’ ADEA claims were time-barred to 10 the extent they were based on discrete acts that occurred before 11 February 23, 2002 because the ADEA requires filing of an 12 administrative complaint with the EEOC within 300 days after the 13 alleged unlawful employment practice. Mem. Dec. & Order at 3; 14 see 29 U.S.C. § 626(d) (2000). The district court also found 15 plaintiffs’ NYSHRL and NYCHRL claims to be time-barred by the 16 applicable three-year statutes of limitations to the extent they 17 were based on discrete acts occurring before September 13, 2001. 18 See Mem. Dec. & Order at 3-4. The district court concluded that 19 all of Kassner’s claims were time-barred because they were based 20 on alleged discrete acts occurring in 1999. Id. at 4. Moreover, 21 the district court ruled that the only allegations by Reiffe of 22 discriminatory acts that were not time-barred “either do not 23 amount to an adverse employment action or are insufficient 24 factual allegations to infer that those actions were based upon 25 her age.” Id. at 4-5.

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1 In denying plaintiffs’ cross-motion to amend the complaint, 2 the district court noted that the proposed amended complaint 3 “adds few new factual allegations” and “simply drops any 4 reference to applicable dates in an attempt to vaguely and 5 generally refer to events without any time reference.” Id. at 6. 6 The district court concluded that “[s]uch a proposed amendment 7 may hide, but cannot cure, any time-barred deficiencies. It 8 therefore would be futile.” Id. 9 Plaintiffs-appellants subsequently brought this appeal and, 10 in connection therewith, request legal fees and costs. 11 II. DISCUSSION

12 A. The District Court Erred in Granting Defendants’ 13 Rule 12(b)(6) Motion to Dismiss the Complaint in the Entirety

14 We review de novo the district court’s grant of a motion to 15 dismiss. Dougherty v. Town of N. Hempstead Bd. of Zoning 16 Appeals, 282 F.3d 83, 87 (2d Cir. 2002). In considering a motion 17 to dismiss for failure to state a claim upon which relief can be 18 granted, the court is to accept as true all facts alleged in the 19 complaint. Id. The court is to draw all reasonable inferences 20 in favor of the plaintiff. Fernandez v. Chertoff, 471 F.3d 45, 21 51 (2d Cir. 2006); see also Leibowitz v. Cornell Univ., 445 F.3d 22 586, 591-92 (2d Cir. 2006). The Supreme Court has held that, 23 under the notice system of pleading established by the Federal 24 Rules of Civil Procedure, “an employment discrimination plaintiff 25 need not plead a prima facie case of discrimination.” 26 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Under

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1 Rule 8(a)(2), the pleading requirement is satisfied by “a short 2 and plain statement of the claim showing that the pleader is 3 entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement 4 must simply ‘give the defendant fair notice of what the 5 plaintiff’s claim is and the grounds upon which it rests.’” 6 Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 7 41, 47 (1957)); Leibowitz, 445 F.3d at 591. The Supreme Court 8 has rejected the argument that allowing lawsuits based on 9 conclusory allegations of discrimination would encourage 10 disgruntled employees to sue and thereby overburden the courts. 11 “Whatever the practical merits of this argument, the Federal 12 Rules do not contain a heightened pleading standard for 13 employment discrimination suits.” Swierkiewicz, 534 U.S. 14 at 514-15. Therefore, in considering such a motion to dismiss, 15 "[t]he appropriate inquiry is not whether a plaintiff is likely 16 to prevail, but whether he is entitled to offer evidence to 17 support his claims." Fernandez, 471 F.3d at 51 (internal 18 quotation marks and citation omitted). 19 In reviewing the complaint and thereby dismissing 20 plaintiffs’ age discrimination claims, the district court 21 considered many discrete acts to be time-barred. A plaintiff 22 seeking to recover under the ADEA must file a discrimination 23 charge with a state agency within 300 days of the occurrence of 24 the allegedly unlawful employment practice. See 29 U.S.C. 25 § 626(d)(2). The district court concluded that plaintiffs’ ADEA 26 claims were time-barred to the extent they were based on discrete

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1 acts that occurred before February 23, 2002, based on a filing 2 date of December 20, 2002 for the administrative EEOC 3 complaints.1 Mem. Dec. & Order at 3. Because claims under the 4 NYSHRL and the NYCHRL are time-barred unless filed within three 5 years of the alleged discriminatory acts, the district court also 6 ruled that such claims are time-barred to the extent they were 7 based on discrete acts occurring before September 13, 2001. Id. 8 at 3-4; see N.Y. Exec. Law § 296; N.Y. C.P.L.R. § 214(2) 9 (McKinney 2003); N.Y.C. Admin. Code § 8-502(d). 10 A prima facie case of age discrimination requires that 11 plaintiffs demonstrate membership in a protected class, 12 qualification for their position, an adverse employment action, 13 and circumstances that support an inference of age 14 discrimination. Galabya v. New York City Bd. of Educ., 202 F.3d 15 636, 639 (2d Cir. 2000). “A plaintiff sustains an adverse 16 employment action if he or she endures a ‘materially adverse 17 change’ in the terms and conditions of employment. To be 18 ‘materially adverse’ a change in working conditions must be ‘more 19 disruptive than a mere inconvenience or an alteration of job 20 responsibilities.’” Id. at 640 (quoting Crady v. Liberty Nat'l 21 Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)) (citation

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The complaint alleges that both plaintiffs filed their EEOC complaints “on or about December 20, 2002.” Compl. ¶ 3.

According to the copies of the EEOC complaints in the record, Kassner’s EEOC charge was filed on that date, but Reiffe’s EEOC charge actually was filed 24 days earlier, on November 26, 2002.

Accordingly, Reiffe’s ADEA claims are time-barred if based on discrete acts occurring before January 30, 2002.

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1 omitted). A change that is “materially adverse” could consist 2 of, inter alia, “a demotion evidenced by a decrease in wage or 3 salary, a less distinguished title, a material loss of benefits, 4 significantly diminished material responsibilities, or other 5 indices . . . unique to a particular situation.” Id. (omission 6 in original) (internal quotation marks and citation omitted). At 7 this stage of litigation, plaintiffs need not plead a prima facie 8 case and may withstand a motion to dismiss by meeting a lesser 9 standard. Plaintiffs need only comply with Rule 8(a)(2) by 10 providing a short and plain statement of the claim that shows 11 that plaintiffs are entitled to relief and that gives the 12 defendants fair notice of plaintiffs’ claims of age 13 discrimination and the grounds upon which those claims rest. See 14 Swierkiewicz, 534 U.S. at 512. 15 We agree with the district court that certain acts alleged 16 in the complaint do not plead causes of action that were timely 17 under the applicable statutes of limitations. Nevertheless, the 18 complaint contains other allegations that, when construed 19 together to draw all reasonable inferences in favor of 20 plaintiffs, state valid causes of action under the ADEA, the 21 NYSHRL, and the NYCHRL. As to the discrete acts for which the 22 district court considered claims to be timely, the district court 23 observed that “[p]laintiffs primarily complain of a number of 24 shift or work station changes that reduced their potential for 25 tip income.” Mem. Dec. & Order at 5. With respect to such

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1 “shift or work station changes,” the district court concluded 2 that “none of the acts complained of by plaintiffs rise to the 3 level of a material adverse employment action.” Id. We decline 4 to hold that a waiter or waitress repeatedly assigned to less 5 desirable work stations and work shifts than younger wait-staff 6 can never, under any proven set of facts, obtain a remedy for age 7 discrimination in employment. 8 We now turn to the allegations in the complaint relevant to 9 each plaintiff’s claim of age discrimination based on changes in 10 work stations and work shifts. Kassner alleged in the complaint 11 that “[i]n 1999, Defendant, Lebewohl, permanently assigned 12 Ms. Kassner to work station six, located by the toilet and 13 kitchen” and that “[c]ustomers do not sit at station six because 14 of its location.” Compl. ¶ 12. This allegation of a permanent 15 assignment to an undesirable work station is time-barred under 16 the ADEA, the NYSHRL, and the NYCHRL. “A discrete retaliatory or 17 discriminatory act occurred on the day that it happened.” Nat’l 18 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) 19 (internal quotation marks omitted). As we have stated 20 previously, a completed act such as a discontinuance of a 21 particular job assignment is not of a continuing nature. 22 Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 23 1997). The district court was correct in dismissing any claim 24 arising from this factual allegation. The complaint also alleges

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1 that “[i]n 1999, Lebewohl also refused to assign Ms. Kassner any 2 weekend shifts. However, younger waitresses are rotated amongst 3 the better stations and assigned to weekend shifts, which is when 4 the most money is made.” Compl. ¶ 13. Because this allegation 5 also is pleaded as having occurred in 1999, it too is time-barred 6 under the ADEA, the NYSHRL, and the NYCHRL. We conclude, 7 therefore, that the district court correctly ruled that Kassner 8 had made no timely allegations of employment-related age 9 discrimination based on changes in work stations and work shifts. 10 We conclude, as did the district court, that not all of the 11 allegations of changes in work stations and work shifts affecting 12 Reiffe are untimely. The complaint alleges that in 1999 13 defendant Lebewohl discriminated against Reiffe by making a 14 change in Reiffe’s schedule that removed her from a Sunday shift. 15 Id. ¶ 17. In referring to a discrete act occurring in 1999, this 16 allegation is time-barred under the ADEA, the NYSHRL, and the 17 NYCHRL. Another allegation in the complaint is of a 18 discriminatory assignment, for four consecutive days in January 19 2002, to the counter station, which the complaint alleges to be 20 the least profitable station and to which only new workers 21 allegedly are usually assigned. Id. ¶ 21. This alleged 22 assignment is one for which relief is not time-barred under the 23 NYSHRL and the NYCHRL. On the face of the complaint, it is not 24 possible to determine whether relief would be time-barred under 25 the ADEA; the allegation would be timely under the ADEA if Reiffe

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1 were able to show that the assignment was made on or after 2 January 30, 2002. The complaint also includes the allegation 3 that Lebewohl, in September 2002, discriminated against Reiffe by 4 changing Reiffe’s station and her hours on Saturdays such that 5 she was removed from the early dinner shift. Id. ¶ 22. It 6 further alleges that in September 2002 her hours on Tuesdays, 7 which were 11:00 a.m. until 3:45 p.m., were changed to 12:00 p.m. 8 until 3:00 p.m. Id. ¶ 23. These allegations of acts occurring 9 in September 2002 do not refer to acts for which relief is barred 10 under the various statutes of limitations. 11 Viewed absent the time-barred allegations, Reiffe’s claims 12 that defendants discriminated against her in her station and 13 shift assignments are based on an allegation that she was 14 assigned in January 2002 to the least desirable station, the 15 counter, for four consecutive days and an allegation that her 16 Tuesday and Saturday station and shift assignments were changed 17 in September 2002. The complaint fails to allege specifically 18 that the September 2002 station and shift assignments were less 19 favorable than those to which Reiffe previously was assigned. 20 However, in the context of the complaint as a whole we are able 21 to draw an inference in favor of Reiffe that the new station and 22 shift assignments were less desirable than the previous ones and 23 less desirable than those to which younger workers were assigned. 24 We also may infer from the language of the complaint that the 25 changes continued after September 2002. Reiffe’s timely claims

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1 relating to changes in shifts are limited to an allegation that 2 in September 2002 her hours were reduced on Tuesdays and also on 3 Saturdays, when she was removed from the early dinner shift. The 4 significance of the reduction in hours on Tuesdays is not 5 apparent from the face of the complaint; whether this alleged 6 action was adverse is a matter of speculation. See Bell Atlantic 7 Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (“Factual 8 allegations must be enough to raise a right to relief above the 9 speculative level.”). We may infer the significance of the 10 change in the Saturday hours based on the allegation in the 11 complaint that the weekend shifts were the most lucrative shifts. 12 Compl. ¶ 13. We also may infer that the change in Reiffe’s 13 Saturday hours continued after September 2002. 14 The district court concluded that the timely claims on 15 behalf of Reiffe “either do not amount to an adverse employment 16 action or are insufficient factual allegations to infer that 17 those actions were based upon her age.” Mem. Dec. & Order at 5. 18 The timely allegations made on behalf of Reiffe are limited in 19 scope and therefore might be construed as insufficient to 20 constitute a “materially adverse change” in the terms and 21 conditions of employment, see Galabya, 202 F.3d at 640, were we 22 not required to draw all reasonable inferences on behalf of the 23 plaintiff. The inferences in favor of Reiffe that we discussed 24 previously cause us to conclude that Reiffe’s claims of age 25 discrimination based on certain changes in work station and work 26 shift assignments, although limited, are sufficient to withstand

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1 a motion to dismiss under the standard articulated in 2 Swierkiewicz, 534 U.S. at 512. We conclude, therefore, that the 3 district court should have allowed Reiffe to proceed on claims 4 that certain alterations made to her work station and work 5 schedule in January 2002 and September 2002, i.e., those for 6 which relief is not time-barred, constituted employment-related 7 age discrimination. 8 We next consider the issue of discrimination based on a 9 hostile work environment. Although the complaint does not 10 explicitly allege discrimination based on a hostile work 11 environment, the complaint alleges “continued harassment” of 12 Kassner and alleges facts from which we may infer pleading of 13 hostile work environment claims as to her; the complaint states 14 that “Lebewohl and several of his subordinates have repeatedly 15 made degrading comments towards Ms. Kassner, including, but not 16 limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of that 17 make-up[,]’ and ‘take off your wig.’” Compl. ¶¶ 14-15. An 18 actionable discrimination claim based on hostile work environment 19 under the ADEA is one for which “the workplace is ‘permeated with 20 discriminatory intimidation, ridicule, and insult that is 21 sufficiently pervasive to alter the conditions of the victim’s 22 employment. . . .’” Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 23 318 (2d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510

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1 U.S. 17, 21 (1993)) (omission in original). The determination of 2 hostility depends on whether a reasonable person would find the 3 work environment to be hostile and whether plaintiffs 4 subjectively perceived it to be so. Id. Minor incidents do not 5 merit relief. Id. Plaintiffs need not present a list of 6 specific acts. Id. To establish a hostile work environment, 7 plaintiffs must “prove that the incidents were sufficiently 8 continuous and concerted to be considered pervasive.” Id. 9 (internal quotation marks and citation omitted). “A plaintiff 10 must also demonstrate that she was subjected to the hostility 11 because of her membership in a protected class.” Id. At the 12 pleading stage of the case, however, plaintiffs need not plead a 13 prima facie case of discrimination based on hostile work 14 environment, so long as they provide in the complaint a short and 15 plain statement of the claim that shows that plaintiffs are 16 entitled to relief and that gives the defendant fair notice of 17 plaintiffs’ claim for hostile work environment and the grounds 18 upon which that claim rests. See Swierkiewicz, 534 U.S. at 512. 19 As to Kassner, the allegation of a hostile work environment is 20 sufficient for this purpose and thus entitles Kassner to proceed 21 to discovery and put on evidence in support of her hostile work 22 environment claims. To prevail, Kassner will have to persuade 23 the factfinder that, inter alia, the comments the complaint

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1 attributes to Lebewohl and subordinates actually were age-related. 2 As to Reiffe, however, we consider the factual allegations 3 in the complaint to be insufficient to state a claim of hostile 4 work environment. The complaint alleges that defendants 5 “pressur[ed] plaintiffs to retire from employment.” See Compl. 6 ¶¶ 45, 51, 57. This allegation, even when aided by inferences in 7 favor of Reiffe, is so vague that it fails to provide defendants 8 with fair notice of the factual grounds supporting an implied 9 claim that Reiffe was subjected to a hostile work environment. 10 The complaint alleges no specific facts as to what was done to 11 pressure Reiffe to retire. The complaint does contain an 12 allegation, which was timely under the NYSHRL and the NYCHRL but 13 not under the ADEA, that the manager of 2nd Avenue Delicatessen 14 Inc., in December 2001, suspended Reiffe without pay for an 15 incident without conducting a proper investigation and, when 16 Reiffe objected to the suspension, threatened to subject Reiffe 17 to arrest if she appeared in the restaurant. Id. ¶ 18. The 18 complaint, however, fails to allege any facts about the 19 circumstances surrounding the suspension and the incident that 20 gave rise to it. The allegations made on behalf of Reiffe, if 21 assumed to be true, would not be sufficient to justify a 22 conclusion that Reiffe is entitled to a remedy based on a hostile 23 work environment claim.

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1 We turn next to the pleading of plaintiffs’ retaliation 2 claims. The ADEA prohibits an employer from discriminating 3 against an individual employee because of the individual’s 4 opposing any practice made unlawful under the statute. 29 U.S.C. 5 § 623(d).2 Plaintiffs allege that they complained to defendants 6 about their disparate treatment and that defendant Lebewohl did 7 not act to remedy the situation but instead pointed to the front 8 of the restaurant and stated “There’s the door!” Compl. ¶¶ 44, 9 50, 56. The complaint alleges vaguely that defendants 10 discriminated against plaintiffs because they opposed acts 11 unlawful under the ADEA, made charges, and participated in 12 proceedings in support of their ADEA rights. Id. ¶¶ 42-43, 13 48-49, 54-55. Notably, the complaint fails to identify any 14 specific acts by defendants against Kassner that are alleged to 15 have been taken in retaliation for Kassner’s complaints or for 16 her filing of discrimination charges with the EEOC in December 17 2002. We conclude, therefore, that the complaint fails to state 18 a retaliation claim on behalf of Kassner under the ADEA, the 19 NYSHRL, or the NYCHRL. 20 We reach the opposite conclusion with respect to certain 21 retaliation claims made on behalf of Reiffe. The complaint

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The NYSHRL and the NYCHRL contain similar provisions that describe retaliation as an unlawful discriminatory practice. See N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7).

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1 alleges that retaliatory assignments to work stations and work 2 shifts began after Reiffe requested that her union file a 3 grievance on her behalf for the incident in December 2001 when 4 Reiffe was suspended without pay. Id. ¶¶ 18-20. The complaint 5 asserts retaliation claims based on the same alleged changes to 6 Reiffe’s work station and work shifts on which it bases its 7 claims of discriminatory assignments, i.e., the changes in 8 Reiffe’s work station and work shifts in January 2002 and 9 September 2002. Id. ¶¶ 21-23. As we discussed above, the timely 10 claims of age discrimination based on alleged changes to Reiffe’s 11 work station and work shift assignments are sufficient to 12 withstand a motion to dismiss under the standard articulated in 13 Swierkiewicz, 534 U.S. at 512. Whether those alleged changes to 14 work stations and work shifts constitute discrimination, 15 retaliation, or both is to be determined as the litigation 16 progresses. We therefore conclude that the district court erred 17 in dismissing all of Reiffe’s claims of retaliation. 18 In summary, we conclude with respect to Kassner that the 19 district court properly dismissed the claims of alleged 20 discriminatory assignments to work stations and work shifts, 21 erred in dismissing an implied claim of hostile work environment, 22 and properly dismissed all claims of retaliation. We conclude 23 with respect to Reiffe that the district court properly dismissed 24 certain untimely claims of alleged discriminatory assignments to 25 work stations and work shifts but erred in dismissing other such

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1 claims that were based on acts alleged to have occurred in 2 January and September of 2002, properly dismissed any implied 3 claim of hostile work environment, and erred in dismissing claims 4 of retaliation based on acts that were alleged to have occurred 5 in January and September of 2002 for which relief was not time- 6 barred.

7 B. The District Court Erred In Denying the Motion to Amend the 8 Complaint on the Ground of Futility

9 We turn next to the district court’s denial of plaintiffs’ 10 cross-motion to amend their complaint, which we review for abuse 11 of discretion. Dougherty, 282 F.3d at 87; see Parker v. Columbia 12 Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000). In doing 13 so, we review de novo any conclusions of law. Dougherty, 282 14 F.3d at 87. Upon de novo review, we conclude that the district 15 court erred in ruling that the proposed amendment to the 16 complaint would have been futile. 17 Rule 15(a) of the Federal Rules of Civil Procedure provides 18 in the first sentence that “[a] party may amend the party’s 19 pleading once as a matter of course at any time before a 20 responsive pleading is served . . . .” Fed. R. Civ. P. 15(a). 21 The second sentence of Rule 15(a) provides that “[o]therwise a 22 party may amend the party’s pleading only by leave of court or by 23 written consent of the adverse party; and leave shall be freely 24 given when justice so requires.” Id. 25 At the time that plaintiffs moved to amend their complaint, 26 defendants had not filed an answer. Defendants’ motion to

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1 dismiss, because it was a motion, not a pleading, was not a 2 “responsive pleading” within the meaning of Rule 15(a). See 3 Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 4 1996). The threshold question, therefore, is whether the 5 district court was required to accept the proposed amended 6 complaint because the plaintiffs were allowed by the first 7 sentence of Rule 15(a) to amend the complaint as a matter of 8 course. We conclude that the district court, because of the 9 effect of Rule 16(b), was not so required. 10 Although Rule 15(a) governs the amendment of pleadings, 11 Rule 16(b) also may limit the ability of a party to amend a 12 pleading if the deadline specified in the scheduling order for 13 amendment of the pleadings has passed. See Fed. R. Civ. 14 P. 16(b). Under Rule 16(b), a party may obtain a modification of 15 the scheduling order only “upon a showing of good cause.” Id. 16 The record in this case shows that plaintiffs filed their cross- 17 motion to amend the complaint on March 4, 2005, more than one 18 month after February 1, 2005, the date specified in the 19 Rule 16(b) scheduling order as the final date for amendment of 20 the pleadings. 21 In Parker, we addressed the relationship between the 22 standard imposed by the second sentence of Rule 15(a), i.e., the 23 “freely given when justice so requires” standard, and the “good 24 cause” standard of Rule 16(b). 204 F.3d at 339-40. We held in 25 Parker that a district court, despite the standard of the second 26 sentence of Rule 15(a), does not abuse its discretion in denying

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1 leave to amend the pleadings where the moving party has failed to 2 establish good cause, as required by Rule 16(b), to amend the 3 pleadings after the deadline set in the scheduling order. Id. 4 We stated with respect to the Rule 16(b) standard, “‘good cause’ 5 depends on the diligence of the moving party.” Id. at 340 6 (quoting Fed. R. Civ. P. 16(b)). 7 However, we have not previously decided whether a party’s 8 right to amend a pleading once “as a matter of course,” as 9 provided in the first sentence of Rule 15(a), may be qualified by 10 the trial court’s general discretion to limit, by means of a 11 scheduling order entered under Rule 16(b), the time during which 12 the pleadings may be amended. Because the first sentence of 13 Rule 15(a) allows a party to amend a pleading “once as a matter 14 of course at any time before a responsive pleading is served,” it 15 may be argued that the rule creates a right to amend pleadings 16 that is not qualified by the district court’s discretion to 17 impose time restrictions under Rule 16. Fed. R. Civ. 18 P. 15(a)(emphasis added). As we discussed in Parker, Rule 16(b) 19 expressly provides that a scheduling order is to limit the time 20 for amendment of the pleadings and, in so doing, “is designed to 21 offer a measure of certainty in pretrial proceedings”; we cited 22 therein the advisory committee notes to the 1983 amendment to 23 Rule 16, which discussed subsection (b). Parker, 204 F.3d at 24 339-40. Although the Rule 16(b) scheduling order, in the 25 district court’s discretion, may impose various time limits for

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1 pre-trial proceedings (including time limits on “any other 2 matters appropriate in the circumstances of the case”), amendment 3 of the pleadings is one of four time limits that the trial court 4 generally must include in a Rule 16(b) scheduling order. Fed. R. 5 Civ. P. 16(b). The advisory committee notes provide that 6 “[i]tem (1) assures that at some point both the parties and the 7 pleadings will be fixed, by setting a time within which joinder 8 of parties shall be completed and the pleadings amended.” Fed. 9 R. Civ. P. 16 Advisory Committee Notes, 1983 Amendment 10 (discussing subsection (b)). This objective would be frustrated 11 by an interpretation of the first sentence of Rule 15(a) that 12 precludes a district court from exercising any discretion to 13 specify the time period during which a party may effect the first 14 amendment of its complaint prior to the serving of a responsive 15 pleading. Rule 16(b), in allowing modifications of scheduling 16 orders only for good cause, provides the district courts 17 discretion to ensure that limits on time to amend pleadings do 18 not result in prejudice or hardship to either side. For these 19 reasons, we hold that amendment of a pleading as a matter of 20 course pursuant to Rule 15(a) is subject to the district court’s 21 discretion to limit the time for amendment of the pleadings in a 22 scheduling order issued under Rule 16(b). 23 In denying the motion to amend the complaint, the district 24 court relied on the second sentence of Rule 15(a), stating that 25 “[l]eave to amend should be freely given when justice dictates,” 26 and then, concluding that the proposed amended complaint did not

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1 plead facts sufficient to overcome a motion to dismiss, denied 2 that motion on the ground of futility. Mem. Dec. & Order at 5-6; 3 see Fed. R. Civ. P. 15(a). Because the complaint, for the 4 reasons discussed previously, is, with respect to some claims, 5 sufficient to withstand a motion to dismiss under Rule 12(b)(6), 6 the district court’s futility analysis rested on an incorrect 7 conclusion of law. 8 Moreover, the proposed amended complaint would be sufficient 9 as to some claims. We note, for example, that the proposed 10 amended complaint, if accepted, would cure the defective pleading 11 of implied hostile work environment claims pertaining to Reiffe. 12 The proposed amended complaint alleges, inter alia, that 13 defendants began a pattern of harassment constituting a hostile 14 work environment when defendant Lebewohl became the day-to-day 15 manager of 2nd Avenue Delicatessen Inc. Am. Compl. ¶¶ 24, 37. 16 The proposed amended complaint further alleges that defendant 17 Lebewohl aided and encouraged other employees of 2nd Avenue 18 Delicatessen Inc. to harass and degrade Reiffe, as well as 19 Kassner, because of their age in an attempt to force them to 20 quit. Id. ¶ 35. The proposed amended complaint provides 21 additional details on the alleged December 2001 suspension 22 incident (which was not time-barred under the NYSHRL and the 23 NYCHRL), see id. ¶ 52, and alleges that 2nd Avenue Delicatessen 24 Inc.’s “employees/agent repeatedly and continually verbally and 25 physically abused” Reiffe, giving as an example that Reiffe “has 26 been spit on and kicked at by Defendant Deli’s employee/agents.”

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1 Id. ¶ 38. The proposed amended complaint states that the 2 employee/agent who allegedly spit on and kicked Reiffe was a co- 3 worker “acting under the direction of management in contributing 4 to the hostile work environment against Ms. Reiffe.” Id. ¶¶ 52, 5 53. It further alleges that this co-worker was not disciplined 6 for the kicking and spitting incident, and that instead, it was 7 Reiffe who was suspended and then told by the manager of 2nd 8 Avenue Delicatessen Inc., in response to Reiffe’s complaint about 9 the suspension, that “[i]f you don’t like it, you can quit. Why 10 don’t you quit already.” Id. ¶ 53. 11 On remand, the district court must exercise its discretion 12 under Rule 16(b) to determine whether the scheduling order should 13 be modified so as to allow an amended complaint. According to 14 the principles we discussed in Parker, 204 F.3d at 339-40, the 15 primary consideration is whether the moving party can demonstrate 16 diligence. It is not, however, the only consideration. The 17 district court, in the exercise of its discretion under 18 Rule 16(b), also may consider other relevant factors including, 19 in particular, whether allowing the amendment of the pleading at 20 this stage of the litigation will prejudice defendants. In this 21 regard, we note that counsel for plaintiffs, at the district 22 court’s hearing on the motion to dismiss and the cross-motion to 23 amend the complaint, offered to submit a different amended 24 complaint in the event the court considered the submitted 25 proposed amended complaint inadequate. See Mot. Hr’g Tr. 42-43, 26 June 29, 2005. The district court did not explicitly address

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1 counsel’s offer. The district court, as an exercise of its broad 2 discretion concerning the pleadings, may consider whether to 3 allow the already-submitted proposed amended complaint or allow 4 submission of another one. 5 III. CONCLUSION 6 For the reasons stated, we conclude that the district court 7 properly dismissed Kassner’s claims of alleged discriminatory 8 assignments, erred in dismissing her implied claims of hostile 9 work environment, and properly dismissed her claims of 10 retaliation. With respect to Reiffe, we conclude that the 11 district court properly dismissed the untimely claims of alleged 12 discriminatory assignments but erred in dismissing other such 13 claims that were timely, properly dismissed any implied claim of 14 hostile work environment, and erred in dismissing those of her 15 claims of retaliation for which relief was not time-barred. We 16 further conclude that the district court erred in not considering 17 whether plaintiffs had demonstrated good cause to amend the 18 complaint after the expiration of the deadline in the scheduling 19 order. Finally, we decline to award costs or attorneys’ fees to 20 plaintiffs-appellants. The litigation before the district court 21 has not progressed beyond the pleadings stage, and plaintiffs- 22 appellants have yet to prevail upon any of their claims. An 23 award on plaintiffs-appellants’ application therefore would be 24 premature. 25 The district court’s judgment granting defendants’ motion to 26 dismiss the complaint and denying plaintiffs’ cross-motion to

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1 amend the complaint is therefore AFFIRMED IN PART and VACATED IN 2 PART, and this matter is REMANDED to the district court for 3 further proceedings in accordance with this Opinion.