Bohnet v. Valley Stream Union Free School District 13

Feb 27, 2015
14-2930-cv
Versions:

ter, Corporation Counsel, New York, NY, for Appellees.

Present: RICHARD C. WESLEY, PETER W. HALL, and GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition for rehearing is GRANTED and the judgment of the district court is AFFIRMED in part and REMANDED in part.

Plaintiff-Appellant Brigitte Vosse brought this action against The City of New York and the Commissioner of the New York City Department of Buildings. Vosse alleged that the City infringed her right to free speech by fining her, pursuant to zoning regulations, for hanging an illuminated peace symbol outside her 17th-story condo window. The district court dismissed for lack of standing in a memorandum and order dated November 8, 2013. Vosse now appeals.

For substantially the same reasons stated in the district court‘s memorandum and order, we AFFIRM the district court‘s decision as to Vosse‘s lack of standing to raise a claim of content-based discrimination. However, Vosse also raised an argument, both in the district court and on appeal, that irrespective of content, the City‘s zoning regulations constituted an unduly restrictive time, place, manner restriction on speech, in violation of the Supreme Court‘s decision in City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). Because the district court did not address this argument, we REMAND for the district court to address it in the first instance.

Matthew Weinick, Famighetti & Weinick, PLLC, Melville, NY, for Plaintiff-Appellant.

Joseph W. Carbonaro, Frazer & Feldman, LLP, Garden City, NY, for Defendants-Appellees.

Present: BARRINGTON D. PARKER, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Lynn L. Bohnet (“Bohnet“), appeals from a judgment of the district court dismissing her claims against her employer, Valley Stream Union Free School District 13 and individual defendants (“Defendants“), alleging, inter alia, age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA“), 42 U.S.C. § 1983 and New York State Human Rights Law (“NYSHRL“). Bohnet also appeals the district court‘s denial of a motion for leave to amend the complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

This Court reviews de novo a district court‘s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff‘s favor.” Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir.2006). A plaintiff must allege sufficient facts to state a claim of relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Such factual allegations must be “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555, 127 S.Ct. 1955. When a complaint pleads facts that are “merely consistent with” a defendant‘s liability, the complaint “stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 557, 127 S.Ct. 1955. (internal quotation marks and brackets omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

Under the ADEA, an employer may not “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s age.” 29 U.S.C. § 623(a)(1). An ADEA plaintiff “must prove that age was the ‘but-for’ cause of the employer‘s adverse decision,” rather than a motivating factor for the decision. Gross v. FBL Fin. Serv., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

On review of the record, and drawing all inferences in Bohnet‘s favor, we conclude that the district court fully considered whether the complaint pleaded “sufficient facts to make plausible the conclusion that ‘but for’ her age [Bohnet] would have been hired,” and it correctly determined that the complaint lacked the requisite specificity to withstand a motion to dismiss. Bohnet v. Valley Stream Union Free Sch. Dist. 13, No. 12-CV-1989 DRH ARL, 30 F.Supp.3d 174, 2014 WL 3400462, at *4 (E.D.N.Y. July 14, 2014) (emphasis added). We agree with the district court, for the reasons set forth in its thorough memorandum of decision, that absent greater specificity, Bohnet‘s factual allegations of age discrimination both in her original and proposed amended complaint are conclusory and “stop[] short of the line between possibility and plausibility.” Twombly, 550 U.S. at 557, 127 S.Ct. 1955. The facts alleged do not provide a sufficient basis to conclude that but for her age, Bohnet would have been hired for the positions for which she applied.

We have considered all of Bohnet‘s remaining arguments, and find them to be without merit. Accordingly, we AFFIRM the district court‘s grant of Defendants’ motion to dismiss and its denial of Bohnet‘s motion for leave to amend the complaint.

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