17‐1465
Boonmalert v. City of New York, et. al
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 22nd day of January, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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BOONSAKDI BOONMALERT,
Plaintiff‐Appellant,
‐v.‐ 17‐1465
CITY OF NEW YORK, ANDREW SCHWARTZ,
Defendants‐Appellees,
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DEPARTMENT OF SMALL BUSINESS
SERVICES,
ADR Provider‐Appellee,
SOCIAL SERVICES UNION, LOCAL 371, JOHN
DOE, JANE DOE,
Defendants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Special Hagan, Law Offices of Special
Hagan, Saint Albans, NY.
FOR APPELLEE: John Moore (Richard Dearing, on the
brief), Assistant Corporation
Counsel, for Zachary W. Carter,
Corporation Counsel for the City of
New York, New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Wood, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of the district court be AFFIRMED.
Plaintiff‐appellant Boonsakdi Boonmalert appeals from an April 12, 2017
order of the district court dismissing his discrimination claims pursuant to a
motion under Fed. R. Civ P. 12(b)(6), and denying his cross motion seeking leave
to file a second amended complaint. On appeal, Boonmalert argues that the
district court erred because: (1) it applied the summary judgment standard under
Fed. R. Civ. P. 56, instead of the motion to dismiss standard under Fed. R. Civ. P.
12(b)(6); (2) he pled sufficient facts to support his claims (disparate treatment,
retaliation, hostile work environment, Monell, and aiding and abetting); and (3)
amending his complaint for a second time would not have been futile. We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.
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1. Certain claims are either time barred, or barred for failure to exhaust.
“A plaintiff seeking to recover under the ADEA must file a discrimination charge
with a state agency within 300 days of the occurrence of the allegedly unlawful
employment practice.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237
(2d Cir. 2007). Claims brought under the New York State Human Rights Law
(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) “are
time‐barred unless filed within three years of the alleged discriminatory acts.”
Id. at 238.
Boonmalert alleges, without proof of any filing, that he filed his first EEOC
complaint on May 20, 2015. Accordingly any claims accruing prior to July 24,
2014 (300 days before May 20, 2015) are time barred under the ADEA. This
includes his September 2012 transfer to a new work unit. Boonmalert argues
that any claims predating July 24, 2014 (including his transfer) were part of
continuing or ongoing violations, and therefore are not time barred. However,
“[a]s we have stated previously, a completed act such as a discontinuance of a
particular job assignment is not of a continuing nature.” Id. at 239. Similarly, a
one‐time transfer to a new unit is a discrete act, and “[a] discrete retaliatory or
discriminatory act occurred on the day that it happened.” Natʹl R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110 (2002) (internal quotation marks omitted).
Additionally, Boonmalert failed to exhaust certain claims. We have
jurisdiction to hear only such claims as “have been included in an EEOC charge or
are based on conduct subsequent to the EEOC charge which is reasonably related
to that alleged in the EEOC charge.” Alfano v. Costello, 294 F.3d 365, 381 (2d Cir.
2002) (internal citation and quotation marks omitted). Since the June 10, 2015
EEOC complaint only discussed Boonmalert’s settlement offer, only alleged
adverse actions that are reasonably related to the settlement offer, and that are not
time barred, may form the basis of his complaint for our review.
2. As to the disparate treatment claims under the ADEA, 42 U.S.C. §
1983, NYSHRL, and NYCHRL, Boonmalert argues that he pled sufficient facts to
defeat the defendants’ motion to dismiss. We disagree.
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“We review the grant of a motion to dismiss de novo, accepting as true all
factual claims in the complaint and drawing all reasonable inferences in the
plaintiffʹs favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation and quotation marks
omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. This standard “asks for more than a
sheer possibility that a defendant has acted unlawfully,” and “[a] pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do.” Id. (internal citation and quotation marks omitted).
Under the ADEA, it is unlawful for an employer to “discriminate against
any individual . . . because of such individual’s age.” 29 U.S.C. § 623 (a)(1).
“A prima facie case of age discrimination requires that plaintiffs demonstrate
membership in a protected class, qualification for their position, an adverse
employment action, and circumstances that support an inference of age
discrimination.” Kassner, 496 F.3d at 238. But at the motion to dismiss stage, an
ADEA plaintiff need not plead every element of a prima facie case, only facts
which plausibly suggest that (1) the employer took an adverse action and (2) age
was the “but for” cause of that adverse action. Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 86‐87 (2d Cir. 2015) (citing Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009)). We have assumed without deciding that “but for”
causation is also required under the NYSHRL. See Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 105 n.6 (2d Cir. 2010). The issue has not been definitively
resolved in the New York courts. See, e.g., DeKenipp v. State, 949 N.Y.S.2d 279,
282 (App. Div. 2012). “[C]ourts must analyze NYCHRL claims separately and
independently from any federal and state law claims, construing the NYCHRLʹs
provisions broadly in favor of discrimination plaintiffs, to the extent that such a
construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal citations and quotation marks
omitted).
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Boonmalert failed to plead facts sufficient to allege that he suffered
disparate treatment because of his age under the ADEA. “A plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in
the terms and conditions of employment. To be materially adverse a change in
working conditions must be more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Kassner, 496 F.3d at 238 (internal citations and
quotation marks omitted). Preparing retirement paperwork for Boonmalert
during a lengthy absence for medical reasons is not a material change in the terms
and conditions of employment. Nor are discussions about retirement, which are
a normal part of workplace dialogue between a supervisor and subordinate. See
Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (per curiam) (“[A]n
employerʹs concern about the economic consequences of employment decisions
does not constitute age discrimination under the ADEA, even though there may
be a correlation with age”). Similarly, the settlement offer is not an adverse
employment action; and even if it were, the City made the same offer to Ying,
Boonmalert’s comparator.
Because NYSHRL claims are treated the same as ADEA claims, the
disparate treatment claim under this statute fails as well. This is true even if the
2012 job transfer is deemed an adverse action under the NYSHRL; Ying, who was
transferred with Boonmalert, is much younger.
Disparate treatment claims under the NYCHRL are analyzed separately,
but even so, there is no such plausible claim. The NYCHRL differs from the
ADEA because “the NYCHRL does not require either materially adverse
employment actions or severe and pervasive conduct,” but instead focuses “on
unequal treatment . . . regardless of whether the conduct is tangible[.]”
Mihalik, 715 F.3d at 114 (internal citation and quotation marks omitted). None of
the actions that form the basis of Boonmalert’s complaint evidence differential
treatment based on age.
The district court assumed that Boonmalert’s disparate treatment claim
under § 1983 was for a violation of his constitutional rights under the Equal
Protection Clause, an assumption that Boonmalert did not contest. See Littlejohn
v. City of New York, 795 F.3d 297, 320 (2d Cir. 2015) (“Section 1983, through its
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application of the Equal Protection Clause of the Fourteenth Amendment,
protects public employees from various forms of discrimination, including hostile
work environment and disparate treatment[.]” (internal citation and quotation
marks omitted)). But Boonmalert abandoned his Equal Protection claim on
appeal, and in so doing, abandoned his § 1983 claims as well. Any other claims
brought under § 1983 are therefore likewise abandoned.
3. Boonmalert’s next claim is that he suffered retaliation in violation of
the ADEA, 42 U.S.C. § 1983, NYSHRL, and NYCHRL. Under New York state
and federal law, “[i]n order to establish a prima facie case of retaliation, an
employee must show [1] participation in a protected activity known to the
defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal
connection between the protected activity and the adverse employment action.”
Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (internal citation and
quotation marks omitted). The materiality showing required by this standard
appears not to be part of a NYCHRL claim. See Williams v. New York City
Hous. Auth., 872 N.Y.S.2d 27, 34 n.12 (2009); see also Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (recognizing that the “Appellate
Division, First Department, has said that the CHRL ‘rejects a materiality
requirement,’ while under Burlington, federal retaliation claims must involve an
action by the employer that is ‘materially adverse.’” (quoting Williams, 872
N.Y.S.2d at 34 n.12; Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006))). The adverse action cited by Boonmalert is that Ying received a lump
sum payment from the settlement; but the settlement offers were substantially the
same, and Boonmalert rejected it.
4. Boonmalert’s third claim is that he endured a hostile work
environment in violation of the ADEA, 42 U.S.C. § 1983, NYSHRL, and NYCHRL.
To state a claim for a hostile work environment, a plaintiff must allege that “the
workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victimʹs
employment and create an abusive working environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted).
“This standard has both objective and subjective components: the conduct
complained of must be severe or pervasive enough that a reasonable person
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would find it hostile or abusive, and the victim must subjectively perceive the
work environment to be abusive.” Littlejohn, 795 F.3d at 321 (internal citation
and quotation marks omitted). To determine whether an incident or series of
incidents is “sufficiently severe or pervasive to alter the conditions” of a plaintiff’s
work environment, we “must consider the totality of the circumstances, including
the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employeeʹs work performance.” Id. at 320‐321
(internal citations and quotation marks omitted). Boonmalert makes no
allegation of conduct so severe or pervasive that a reasonable person would find
it hostile or abusive; and none of the actions he complains of were more than
episodic. Discussions of retirement and a one‐time preparation of retirement
paperwork do not suffice. While under the NYCHRL, the alleged hostile
conduct need not be severe or pervasive, see Mihalik, 715 F.3d at 113, Boonmalert
must still allege that his age was the motivating factor behind any workplace
hostility, and he does not sufficiently do so to survive a motion to dismiss.
5. Under Monell v. Depʹt of Soc. Servs. of City of New York, 436 U.S.
658 (1978), “[l]ocal governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief” if an unconstitutional act “implements
or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that bodyʹs officers.” Id. at 690. Boonmalert’s
Monell claim fails for two reasons. First, since he abandoned his equal
protection claim on appeal, there is no underlying constitutional violation
alleged. Second, Boonmalert does not allege that he suffered any deprivation of
rights due to a municipal policy, regulation, or custom. He cites Schwartz’s
personnel decisions; but under the New York City Charter, the final authority for
personnel decisions rests with the Mayor, the City Council, and the City’s
Personnel Director. So Schwartz’s policy decisions cannot form the basis of a
Monell claim. See Littlejohn, 795 F.3d at 315 (personnel decision of superior who
was not a final decision maker was not a Monell violation).
6. Boonmalert’s last claim is one for aiding and abetting under the
NYSHRL and NYCHRL. Since there is no underlying NYSHRL or NYCHRL
violation, there was no aiding or abetting of acts forbidden by the NYSHRL and
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NYCHRL. See Feingold, 366 F.3d at 158. Moreover, Boonmalert alleges that
Schwartz alone aided and abetted; but an individual cannot aid and abet their
own discriminatory conduct. See Strauss v. N.Y. State Depʹt of Educ., 805
N.Y.S.2d 704, 709 (3d Depʹt 2005) (“[W]e hold that individuals cannot be held
liable under Executive Law § 296(6) for aiding and abetting their own violations
of the Human Rights Law.”).
7. Finally, Boonmalert argues that he should have been granted leave to
file a second amended complaint. “We review the denial of leave to amend a
complaint for abuse of discretion, unless the denial was based on an
interpretation of law, in which case the legal conclusion is reviewed de novo.”
Starr v. Sony BMG Music Entmʹt, 592 F.3d 314, 321 (2d Cir. 2010) (internal citation
omitted). “Futility is a determination, as a matter of law, that proposed
amendments would fail to cure prior deficiencies or to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.” Panther Partners Inc. v. Ikanos
Commcʹns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). “In assessing whether the
proposed complaint states a claim, we consider the proposed amendment[s] . . .
along with the remainder of the complaint, accept as true all non‐conclusory
factual allegations therein, and draw all reasonable inferences in plaintiffʹs favor
to determine whether the allegations plausibly give rise to an entitlement to
relief.” Id. (internal citations and quotation marks omitted, alteration in
original).
As the district court determined, any further amendment would be futile.
Boonmalert already amended his complaint once after the City’s first motion to
dismiss, and he alleges no new facts that would cure the pleading deficiencies.
Accordingly, the sentence of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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