Lively v. WAFRA
6 F.4th 293
| 2d Cir. | 2021Background:
- Francis Lively was WAFRA’s Senior Managing Director of Real Estate for ~21 years and was terminated in April/May 2018 for allegedly violating sexual‑harassment policies.
- Lively sued under the ADEA for age discrimination and for retaliation, alleging the harassment charge was pretext to remove older employees and that he was fired after reporting his supervisor Fawaz Al‑Mubaraki’s ageist comments.
- Key factual allegations: Al‑Mubaraki made remarks in mid‑2017 and November 2017 about replacing older employees with younger ones (including a remark to Lively’s son); Lively reported those comments to HR and executives.
- Defendants’ answer included an investigation record, a recorded conversation, handwritten notes/letters from Lively to the complainant, and the complainant’s EEOC/federal filings; defendants moved for judgment on the pleadings under Rule 12(c).
- The district court granted the Rule 12(c) motion and dismissed Lively’s ADEA claims for failure to plead but‑for causation; the Second Circuit held the district court erred in weighing answer evidence on a Rule 12(c) motion but nonetheless affirmed because Lively’s complaint did not plausibly plead but‑for causation for either age discrimination or retaliation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper scope of Rule 12(c) | District court should not weigh competing factual assertions or rely on extrinsic evidence attached to answer when assessing pleading plausibility | Court may consider pleadings and documents that qualify as part of the pleadings (including some answer exhibits) on a Rule 12(c) motion | Court: district court erred to the extent it weighed answer evidence and relied on extrinsic exhibits without converting to summary judgment, but that error was harmless because complaint failed on the merits |
| ADEA age discrimination (element: causation) | Lively: age animus (supervisor’s remarks, alleged campaign to purge older workers) was the real reason for termination (pretext) | WAFRA: termination resulted from legitimate nondiscriminatory reason (sexual‑harassment findings); age comments were stray and remote | Held: dismissal affirmed — complaint did not plausibly allege but‑for causation; stray remarks, temporal gaps, lack of direct link, and absence of decisionmaker involvement fatal |
| ADEA retaliation | Lively: he reported Al‑Mubaraki’s comments to HR/execs and was later terminated in retaliation | WAFRA: termination was due to sexual‑harassment misconduct; no causal link to reports | Held: dismissal affirmed — complaint failed to plead but‑for causation or sufficiently proximate/other evidence of retaliatory motive |
Key Cases Cited
- Gross v. FBL Fin. Servs., 557 U.S. 167 (ADEA requires but‑for causation for discrimination claims)
- University of Texas Southwestern Medical Ctr. v. Nassar, 570 U.S. 338 (retaliation claims require but‑for causation)
- Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009 (pleading stage must plausibly allege the elements required at trial, including but‑for causation)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for discrimination claims)
- Hayden v. Paterson, 594 F.3d 150 (2d Cir. pleading‑stage standards; accept complaint facts and draw inferences for non‑movant)
- Lynch v. City of New York, 952 F.3d 67 (Rule 12(c) standard is identical to Rule 12(b)(6) standard)