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.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
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), 29 U.S.C. § 621 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, 714 F.3d 739, 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
‐ 2 ‐
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, 22 F.3d 489, 490 (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,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (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, 380
U.S. 460, 465 (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, 819 F.3d 678, 680 (2d Cir. 2016)
(applying federal pleading standards to retaliation claims under the NYSHRL).
‐ 3 ‐
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., 801 F.3d 72,
87 (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, 795
F.3d 297, 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, 801 F.3d at 84 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (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, 801 F.3d at 86 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (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), 2016 WL 74415, 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, 795 F.3d at 308. 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 ‐
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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.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
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), 29 U.S.C. § 621 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, 714 F.3d 739, 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
‐ 2 ‐
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, 22 F.3d 489, 490 (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,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (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, 380
U.S. 460, 465 (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, 819 F.3d 678, 680 (2d Cir. 2016)
(applying federal pleading standards to retaliation claims under the NYSHRL).
‐ 3 ‐
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., 801 F.3d 72,
87 (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, 795
F.3d 297, 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, 801 F.3d at 84 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (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, 801 F.3d at 86 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (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), 2016 WL 74415, 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, 795 F.3d at 308. 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,
556 U.S. at 678 (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
‐ 5 ‐
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., 596 F.3d 93, 105 n.6 (2d Cir. 2010)
(citing Sutera v. Schering Corp., 73 F.3d 13, 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
‐ 6 ‐
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.
* * *
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
‐ 7 ‐