661 F. App'x 29
2d Cir.2016Background
- Plaintiff Marc Marcus sued Levitón for wrongful termination alleging age discrimination (ADEA and NYSHRL), retaliation and hostile work environment (Title VII and NYSHRL), and breach of contract; district court dismissed the amended complaint under Rule 12(b)(6).
- On appeal Marcus preserved only his ADEA and NYSHRL age-discrimination claims; other claims (Title VII retaliation/hostile work environment and breach of contract) were waived for failure to brief them.
- Marcus alleged Levitón sought to get "younger" by terminating older employees, that the proffered reason for his firing (yelling/profanity) was pretextual, and that he was replaced by a younger, less-experienced hire "on information and belief."
- The district court applied the McDonnell Douglas burden-shifting framework at the pleading stage; the Second Circuit held that was error but proceeded to review de novo whether the complaint pleaded a plausible claim.
- The Second Circuit found Marcus’s allegations conclusory and speculative (no ages, dates, comparator specifics, or facts supporting discriminatory motive) and affirmed dismissal for failure to plausibly plead but-for causation under the ADEA; the NYSHRL claim failed for the same reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marcus plausibly alleged ADEA age discrimination (but-for causation) | Marcus argued Levitón was replacing older workers with younger hires, his firing was pretextual, and he was replaced by a younger person | Levitón argued the complaint lacked specific facts (ages, dates, similarly situated comparators) and did not plausibly plead age as the but-for cause | Affirmed dismissal — allegations were conclusory/speculative and failed to plausibly show but-for causation under the ADEA |
| Whether NYSHRL age claim survives (causation standard) | Marcus relied on same facts as ADEA claim; argued state-law pleading standards should apply | Levitón argued federal pleading standards (Twombly/Iqbal) govern in federal court and the NYSHRL claim lacks factual support | Affirmed dismissal — NYSHRL claim fails under ADEA-equivalent but-for standard; would fail even under motivating-factor standard |
| Whether the district court should have used state "notice pleading" for NYSHRL claims | Marcus urged application of relaxed New York pleading rules | Levitón invoked federal procedural rule (Twombly/Iqbal) controlling in federal court | Rejected — federal courts sitting in diversity apply federal procedural law; Twombly/Iqbal applies to NYSHRL claims |
| Whether McDonnell Douglas framework controls at 12(b)(6) stage | Marcus did not press this as principal issue on appeal | Levitón relied on district court ruling | Court noted district court erred to apply McDonnell Douglas at pleading stage but affirmed dismissal on the correct pleading standard |
Key Cases Cited
- Fink v. Time Warner Cable, 714 F.3d 739 (2d Cir. 2013) (standard of review for Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 560 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain factual allegations sufficient to state a plausible claim)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (ADEA requires but-for causation)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (pleading standards for employment discrimination claims)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (but-for causation required for ADEA claims)
- Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (NYSHRL age claims treated like ADEA claims)
- Hanna v. Plumer, 380 U.S. 460 (1965) (federal courts apply federal procedural law sitting in diversity)
- Cooper v. New York State Dept. of Labor, 819 F.3d 678 (2d Cir. 2016) (applying federal pleading standards to NYSHRL retaliation claims)