15-109
Barone v. S&N Auerbach Mgmt.
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 COURT=S 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 30th day of March, two thousand sixteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 _____________________________________
11
12 Michael Barone,
13
14 Plaintiff-Appellant,
15
16 v. 15-109
17
18 S&N Auerbach Management, Inc.,
19
20 Defendant-Appellee.
21 _____________________________________
22
23 FOR PLAINTIFF-APPELLANT: Michael Barone, pro se, Lake Grove,
24 New York.
25
26 FOR DEFENDANT-APPELLEE: Timothy J. Domanick, Mark S.
27 Mancher, Jackson Lewis P.C.,
28 Melville, New York.
29
1 Appeal from the judgment of the United States District Court for the Eastern District of
2 New York (Feuerstein, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court be AFFIRMED.
5 Michael Barone, pro se, appeals from a district court judgment granting the defendant’s
6 motion for judgment on the pleadings and dismissing his complaint for failure to state a claim upon
7 which relief can be granted.1 Barone sued his former employer under the Age Discrimination in
8 Employment Act (“ADEA”) and the New York State Human Rights Law (“NYSHRL”).2 We
9 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
10 issues on appeal.
11 We review de novo a district court’s dismissal of a complaint for failure to state a claim.
12 Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015); see Vega v. Hempstead Union
13 Free School Dist., 801 F.3d 72, 78 (2d Cir. 2015) (same for Fed. R. Civ. P. 12(c) motion). We
14 “accept[] all factual allegations in the complaint as true, and draw[] all reasonable inferences in the
15 plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); see Vega,
16 801 F.3d at 78 (same for Fed. R. Civ. P. 12(c) motion). The complaint must plead “enough facts
17 to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
1
At the time the complaint was filed, Barone was represented by counsel. Counsel subsequently
withdrew from the representation.
2
Barone’s appellate brief raises arguments based on the New York City Human Rights Law
(“NYCHRL”). However, the complaint does not assert any such claim; and in any event, the
complaint does not allege any “act[] occurring within the boundaries of New York City,” which is
necessary for application of the NYCHRL. Shah v. Wilco Sys., Inc., 806 N.Y.S.2d 553, 558
(App. Div. 2005) (citing, e.g., N.Y. Gen. Mun. Law § 239-s; N.Y.C. Admin. Code § 2-201).
2
1 570 (2007), and allow us “to draw the reasonable inference that the defendant is liable for the
2 misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3 Under the ADEA, a plaintiff must allege that age was the “but for” cause—not merely a
4 motivating factor—of the adverse employment action. Vega, 801 F.3d at 86 (citing Gross v. FBL
5 Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). Therefore, while an ADEA plaintiff need not plead
6 every element of a prima facie case to survive a motion to dismiss (or for judgment on the
7 pleadings), the plaintiff must allege facts to plausibly suggest that (1) his employer took an adverse
8 action against him and (2) age was the “but for” cause of that adverse action. See id. We have
9 assumed without deciding that “but for” causation is also required under the NYSHRL. See
10 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d Cir. 2010). The issue has not been
11 definitively resolved in the New York courts. See, e.g., DeKenipp v. State, 949 N.Y.S.2d 279,
12 282 (App. Div. 2012).
13 Upon de novo review of the record and relevant case law, we conclude that the district
14 court properly dismissed the complaint for failure to state a claim. Barone fails to allege facts
15 “directly show[ing] discrimination or . . . giving rise to a plausible inference” that he was
16 terminated because of his age; therefore, he does not plausibly plead that his age was the “but-for”
17 cause or a motivating factor of his termination. See Vega, 801 F.3d at 87. Barone’s complaint
18 was filed with the assistance of counsel, so the district court did not abuse its discretion in granting
19 dismissal with prejudice. Cf. J.S. v. T’Kach, 714 F.3d 99, 103 (2d Cir. 2013) (“[D]istrict courts
20 generally should not dismiss a pro se complaint without granting the plaintiff leave to amend.”).
21 We therefore affirm, for substantially the reasons set forth in the district court’s well-reasoned
22 opinion.
3
1 We have considered all of Barone’s remaining arguments and find them to be without
2 merit. Accordingly, we AFFIRM the judgment of the district court.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
4