520 F. App'x 8

2d Cir.

2013

Carlos GONZALEZ, Plaintiff-Appellant, v. CARESTREAM HEALTH, INC., Defendant-Appellee.

No. 12-4202-cv.

United States Court of Appeals, Second Circuit.

April 2, 2013.

Chief. The Police Chief testified that he retained some discretion to refuse to seize a vehicle when the Albany Police Department was working in concert with another law enforcement agency. The Police Chief further testified that it was the policy of the Department for the Police Chief to handle the complaints of citizens. Under these circumstances, the Police Chief was the final decisionmaker responsible for establishing the policy “with respect to the subject matter in question” in this case.

Further, the “official responsible for establishing final policy with respect to the subject matter in question“—the Police Chief—made “a deliberate choice to follow a course of action” that resulted in the constitutional deprivation Constance Hines suffered. He testified that he was aware of the continued “safekeeping” of Constance Hines’ vehicle, and he further testified that, “I know I talked to her on a number of occasions,” which he specified was five times. In response to a letter from Constance Hines’ counsel, the Police Chief responded by letter that the “vehicle is in the possession of the Albany Police Department” and that the Department and another agency had “seized the vehicle” to be “held by these agencies until [a narcotics] investigation is complete.” The Police Chief thus knew of and addressed Hines’ complaints about the continued retention of her vehicle and, like the county prosecutor in Pembaur, the Police Chief made a “considered decision” that the Albany Police Department would continue to retain the vehicle. That this decision violated the Fourth Amendment is unaltered by the fact that the Police Department was cooperating with the Attorney General‘s Organized Crime Task Force in seizing the vehicle for the Task Force‘s prosecution of individuals involved in a narcotics conspiracy.

We have considered all of Defendants’ remaining arguments and find them to be without merit. The judgment of the district court is AFFIRMED.

Christina A. Agola, Christina A. Agola, PLLC, Rochester, NY, for Appellant.

Jeffrey J. Calabrese, Harter Secrest & Emery LLP, Rochester, NY, for Appellees.

PRESENT: WALKER, GERARD E. LYNCH, and SUSAN L. CARNEY, Circuit Judges.

SUMMARY ORDER

Plaintiff-appellant Carlos Gonzalez appeals from the district court‘s dismissal of his claims brought pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA“), the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (“NYSHRL“), and the Family and Medical Leave Act of 1993 (“FMLA“), 29 U.S.C. §§ 2601-2654. Gonzalez alleges that defendant-appellee Carestream Health, Inc., (“Carestream“) discriminated against him on the basis of his age and retaliated against him for exercising his rights under the FMLA. On September 18, 2012, the United States District Court for the Western District of New York granted Carestream‘s motion to dismiss the complaint in its entirety for failure to state a claim upon which relief may be granted. Gonzalez now appeals, contending that the district court erred in granting the motion. We agree. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal which we reference only as necessary to support our decision.

We review de novo a district court‘s judgment dismissing an action for failure to state a claim. Harris v. Mills, 572 F.3d 66, 71 (2d Cir.2009). To survive a motion to dismiss, a complaint alleging workplace discrimination and retaliation need not allege specific facts establishing a prima facie case of discrimination under McDon-nell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir.2008), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Nor must the plaintiff allege facts sufficient to defeat summary judgment. See Swierkiewicz, 534 U.S. at 511. At the pleading stage, we consider only whether the complaint includes factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The standard is one of “flexible plausibility,” Boykin, 521 F.3d at 213 (internal quotation mark omitted), sometimes requiring a pleader to amplify his complaint with sufficient factual allegations to “nudge[] [his] claims across the line from conceivable to plausible,” Twombly, 550 U.S. at 570. In conducting this analysis, we must accept as true all plausible allegations of fact and draw all reasonable inferences in favor of the plaintiff. Harris, 572 F.3d at 71.

In light of the foregoing principles, we find that the district court erred not only in dismissing the complaint for failure to state a claim, but also in basing its dismissal on highly redacted and incomplete performance evaluations submitted by Carestream in its responsive papers. First, Gonzalez‘s complaint, on its face, was sufficient to give Carestream fair notice of his claims and the grounds upon which they rested. See Swierkiewicz, 534 U.S. at 512. To plead a claim under the ADEA, a plaintiff must allege: (1) he is a member of a protected class; (2) his job performance was satisfactory; (3) he suffered adverse employment action; and (4) the circumstances surrounding that action permit an inference of discrimination based on age.¹ See, e.g., Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). Gonzalez‘s complaint alleged that he is a 60-year old man with “stellar” performance evaluations, who was terminated for pretextual reasons. When combined with his allegation that Carestream maintained substantially younger workers, we find that no further amplification was necessary to state a plausible claim of age discrimination. Cf. Boykin, 521 F.3d at 213-14 (reversing a dismissal because “no amplification” was necessary in cases to which the Swierkiewicz holding applies).

Second, Gonzalez‘s complaint also adequately states an FMLA retaliation claim. Gonzalez alleged that following his FMLA leave, supervisors reprimanded him for failing to complete tasks, placed him on two performance improvement plans, and eventually terminated him.²

These allegations, which we must accept as true, are sufficient to render Gonzalez‘s retaliation claim plausible.

Lastly, while a district court considering a motion under Rule 12(b)(6) may consider documents upon which the complaint relies, see, e.g., Leonard F. v. Isr. Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999), the district court here exceeded the proper scope of its authority under that doctrine. We need not resolve whether Gonzalez‘s allegations that he maintained a “stellar work record” during his 34 years of service incorporates, by reference, 34 years of performance evaluations. Whatever the outer limits of this practice, it was error for the district court to dismiss the complaint on the basis of two years’ worth of highly redacted performance evaluations and highly redacted copies of two performance improvement plans selected, edited, and submitted by Carestream.³

For the foregoing reasons, the judgment of the district court is VACATED, and the case is REMANDED for further proceedings.

Notes

1. The elements of an age discrimination claim are essentially the same under the ADEA and the NYSHRL, and courts apply the same standards for analyzing age discrimination claims under both statutes. See, e.g., .

2. We note that in making these allegations, Gonzalez has not merely relied on the temporal proximity between his FMLA leave and his termination to support an inference of retaliation. Because adverse employment action may take many forms, “alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable.” (citation omitted) (internal quotation marks omitted). At any rate, there is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between a protected activity and an alleged retaliatory action.” (internal quotation marks omitted).

3. Although Gonzalez does not appear to have objected to district court‘s consideration of the documents submitted by Carestream, the district court‘s use of the documents was nonetheless improper. See Fed.R.Civ.P. 12(d) (“If, on a [12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.“) (emphasis added).

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