13-942-cv Thompson v. ABVI Goodwill Services 

### 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 “SUMMARY 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 9 thday of September, two thousand thirteen. 3 4 PRESENT: GUIDO C ALABRESI , 5 D EBRA ANN L IVINGSTON , 6 D ENNY C HIN , 7 Circuit Judges. 8 9 10 AUDREY T HOMPSON , 11 Plaintiff-Appellant , 12 13 -v- No. 13-942-cv 14 15 ABVI G OODWILL S ERVICES , 16 17 Defendant-Appellee

. 18 19 20 21 C HRISTINA A. A GOLA , Christina A. Agola, PLLC, 22 Rochester, NY, for Plaintiff-Appellant

. 23 24 J AMES H OLAHAN (Laurie Seal Coles, on the brief ), 25 Bond, Schoeneck & King, PLLC, Rochester, NY, for 26 Defendant-Appellee

. 27 28 29 30Appeal from the judgment of the United States Di strict Court for the Western District of New 1 York (Siragusa, J. ) granting Defendant-Appellee’s motion to dismiss. UPON DUE 2 CONSIDERATION, IT IS HEREBYORDERED, ADJUDGED, AND DECREED that the 3 judgment of the district court is AFFIRMED

. 4 Plaintiff-Appellant Audrey Thompson (“Thom pson”) appeals from the district court’s 5 dismissal of her claims brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. 6 § 621 et seq. (“ADEA”), and the New York State Hu man Rights Law, N.Y. Exec. Law § 290 et seq. 7 (McKinney 2013) (“NYSHRL”). Thompson alleges that Defendant-Appellee ABVI Goodwill 8 Services (“ABVI”) terminated her employment on the basis of age. On February 11, 2013, the 9 United States District Court for the Western District of New York (Siragusa, J. ) granted ABVI’s 10 motion to dismiss the complaint in its entirety fo r failure to state a claim upon which relief may be 11 granted, pursuant to Federal Rule of Civil Pro cedure 12(b)(6). Thompson now appeals, contending 12 that the district court erred in dismissing her claims. 1 We assume the parties’ familiarity with the 13 underlying facts, procedural history, and the issues on appeal, which we reference only as necessary 14 to explain our decision to affirm. 15 “We review a district court’s grant of a motion to dismiss under Rule 12(b)(6) de novo .” 16 Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010) (internal quotation marks 17 omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 18

1 While New York courts have traditionally “rel[ied] on federal law when determining claims under the New York Human Rights Law,” Reed v. A.W. Lawrence & Co. , 95 F.3d 1170, 1177 (2d Cir. 1996), it is unclear whether they follow Gross v. FBL Financial Services, Inc. , 557 U.S. 167 (2009), and apply the ADEA’s “but for” standard of causation to age discrimination claims brought under the NYSHRL. See DeKenipp v. State , 949 N.Y.S.2d 279, 282 (3d Dep’t 2012). We need not resolve this issue because, even if we applied the traditional Title VII analysis, we would still conclude that Thompson’s complaint does not plausibly allege a discriminatory motive.

2accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 1 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 3 inference that the defendant is liable for the misconduct alleged.” Id. We ignore “[t]hreadbare 4 recitals of the elements of a cause of action, s upported by mere conclusory statements,” which are 5 not entitled to the presumption of truth; thereafter, we examine the complaint for facial plausibility. 6 Id. (citing Twombly , 550 U.S. at 555). 7 Thompson first challenges the district court’s supposed application of the McDonnell 8 Douglas burden-shifting evidentiary standardin evaluating her complaint. See McDonnell Douglas 9 Corp. v. Green , 411 U.S. 792 (1973). The Supreme Court clarified in Swierkiewicz v. Sorema N.A. 10 that a complaint alleging workplace discrimination need not allege specific facts establishing a 11 prima facie case of discrimination under McDonnell Douglas . 534 U.S. 506, 510-511 (2002). Here, 12 the district court acknowledged that a plaintiff pleading discrimination need not plead the elements 13
of a prima facie case. To the extent that Thompson argues th at the district court erred in relying on 14 cases employing the prima facie evidentiary standard, moreover, we need not address this 15 contention, for Thompson’s claims fail under either the McDonnell Douglas evidentiary standard 16 or Federal Rule of Civil Procedure Rule 8(a). 17 Examining the complaint de novo , we agree with the district court that several of 18 Thompson’s factual allegations are conclusory, including Thompson’s allegations as to Chief 19 Financial Officer Lynn Sullivan’s motives in making certain comments to Thompson in April 2009 20 and Thompson’s speculation that Human Resources Director Rosemarie Becker suggested that 21 Thompson work at Wegmans, a local grocery store, after learning Thompson’s age from her 22

3personnel file. We ignore these comments in cons truing Thompson’s complaint. As the district 1 court noted, Thompson’s age discrimination clai m thus relies on two comments made by different 2 supervisors. In April 2009, Sullivan allegedly called Thompson “nothing but a low level 3 accountant” and asked Thompson when she was “goi ng to retire.” Then in November 2010, Becker 4 is alleged to have told Thompson she made “too much money” and her work was “crappy.” Becker 5 allegedly asked Thompson if she would “consid er working at Wegmans full time.” Thompson 6 remained in her position until January 2011. 7 First, we agree with the district court that the Becker comment in November 2010 suggesting 8 work at Wegmans does not reference age or otherw ise raise a reasonable inference of discriminatory 9 animus. As to the retirement comment in April 2009, we have noted that a comment made to an 10 employee during a meeting that he should “retire” “constitute[d] additionalevidence of age 11 discrimination,” though even there we stated that “one stray comment by itself is usually not 12 sufficient proof to show age discrimination.” Carlton v. Mystic Transp., Inc. , 202 F.3d 129, 136 (2d 13 Cir. 2000) (emphasis added). Here, all that o ccurred was that Thompson was asked when she was 14 planning to retire. And, drawing all inferences in favor of Thompson, we nevertheless agree with 15 the district court that such a lone comment, separated from Thompson’s termination (the only 16 adverse employment action alleged) by twenty months, does not present a plausible claim for relief 17
under the ADEA. 18 We have considered Thompson’s remaining arguments and find them to be without merit. 19 For the reasons stated herein, the district court’s judgment is hereby AFFIRMED. 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22

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