1 16-2383-cv Franchino v. Terence Cardinal Cook Health Care Ctr., Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 2 nd day of June, two thousand seventeen.

PRESENT: P ETER W. H ALL

, C HRISTOPHER F. D RONEY

, Circuit Judges

, A LISON J. N ATHAN

, District Judge

. 

---------------------------- ---------------------------- -------------- M ICHAEL F RANCHINO

, Plaintiff-Appellant

,

v. No. 16-2383-cv

T ERENCE C ARDINAL C OOK H EALTH C ARE C ENTER

, I NC

., R OMAN C ATHOLIC A RCHDIOCESE OF N EW Y ORK

, DBA

A RCH C ARE

, Defendants-Appellees.

---------------------------- ---------------------------- --------------

FOR PLAINTIFF-APPELLANT: M ICHAEL D. D IEDERICH

, J R ., Stony Point, New York.

FOR DEFENDANTS-APPELLEES: E RNEST R. S TOLZER (Jessica C. Moller, of counsel ), Bond, Schoeneck & King, PLLC, New York, New York.

 Judge Alison J. Nathan, United States District Cour t for the Southern District of New York, sitting by designation.2 FOR AMICUS CURIAE: A NNE N OEL O CCHIALINO , Attorney (P. David Lopez, General Counsel; Jennifer S. Goldstein, Associate General Counsel; Lorraine C. Davis, Assistant General Counsel, on the brief ), Office of General Counsel, Equal Employment Opportunity Commiss ion, Washington, D.C., in support of Plaintiff-Appellant

.

Appeal from a June 16, 2016, judgment of the United States District Court for the Southern District of New York (Briccetti, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is VACATED in part and

AFFIRMED in part, and the case is REMANDED for further proceedings.

Plaintiff-Appellant Michael Franchino appe als from a judgment of the district court granting Defendants-Appellees’ motion to dismiss. Franchino challenges the

dismissal of his claims of unlawful discrimi nation and retaliation pursu ant to Title VII of the Civil Rights Act of 1964 (“ Title VII”), 42 U.S.C. § 2000e et seq. , and the Age Discrimination in Employment Act of 1967 (the “ADE A”), 29 U.S.C. § 621 et seq

. 1 We assume the parties’ familiar ity with the underlying fact s, the record of the prior proceedings, and issues on appeal.

Franchino is a Caucasian US-born male who worked for Defendant-Appellee ArchCare for eight years as a human resour ces staff member. In 2014, Franchino was 67 years old, and his employment with ArchCa re was terminated. In connection with his termination, Franchino brought suit in the United States District Court for the Southern District of New York, asserting cl aims of discrimination on the basis of age, sex, and national origin/ethnicity, as well as claims of retaliation. The amended complaint alleges that Franch ino’s coworkers and supervisors frequently made comments and jokes that evinced an age- based animus, that he was term inated on the basis of false allegations of misconduct because his superi ors sided with a younger Hispanic female employee who wanted Franchino to be fired, and that he was replaced by a younger female employee.

1 The amended complaint also asserted claims pursuant to the human rights laws of New York State and New York City. After dismissing Franchino’s federa l claims, the district court declined to exercise supplemental jurisdiction ov er these remaining claims.3 The district court granted defendants’ mo tion to dismiss, concluding that the amended complaint did not plausibly allege a ny discrimination claims and that Franchino had withdrawn his retaliation claims. On appeal , Franchino argues that the district court erred in dismissing his discrimination claims and that his retaliati on claims should be

reinstated.

We review the district court’s dismissal of Franchino’s claims de novo , accepting all factual allegations in the complaint as true and drawing all inferences in Franchino’s

favor. Littlejohn v. City of N.Y. , 795 F.3d 297, 306 (2d Cir. 2015). At the pleading stage, a plaintiff alleging discrimination bears only a “minimal burden to show discriminatory intent.” Id. at 311; see also Vega v. Hempstea d Union Free Sch. Dist.

, 801 F.3d 72, 85 (2d Cir. 2015) (noting that plaintiff in employment discrimination case has “minimal burden” at the pleadings stag e). To survive a motion to dismiss under Rule 12(b)(6), “what must be pl ausibly supported by facts alle ged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least mini mal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn , 795 F.3d at 311

. Thus, at the initial phase of the litigation, a plain tiff’s allegations “need only give plausible support to a minimal inference of discriminatory motivation.” Id.

“An inference of discrimination can aris e from circumstances including, but not limited to, the employer’s criticism of the pl aintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the pl aintiff’s discharge.” Id. at 312 (internal quotation marks omitted). In addition, “an inference of disc rimination also arises when an employer replaces a terminated or de moted employee with an indi vidual outside the employee’s protected class.” Id. at 312–13.

Applying these standards, we conclude th at Franchino’s allegations are sufficient to state a claim with respect to age discrimination, but not with respect to sex or national origin/ethnicity discrimination. We also conc lude that the district court did not err in deeming the retaliation claims withdrawn.

I. Age Discrimination Claims

The amended complaint incl udes the following age-related allegations. As an individual over the age of 40, Franchino is a member of a protected class under the
ADEA, see 29 U.S.C. § 631(a). He was replac ed by a “much younger” employee, and the ArchCare personnel who were involv ed in Franchino’s termination are “all substantially younger” than Franchino. Ap p. 4, 7. Franchino was frequently the4 subject of derogatory age-based cartoons, comme nts, emails, and jokes in the workplace, and his superiors (in the Human Resources De partment) were aware of but did not take any action to stop this conduct —sometimes even join ing in and participating themselves. When Franchino was subject to a human resour ces investigation over false allegations of workplace misconduct, he was denied certain pr ocedural rights and protections (such as the right to representation during a disciplinar y hearing) that were routinely granted to younger employees as a matter of departme ntal policy. Reading these allegations together, they satisfy Franchino’s minimal burden of providing plausible support for a minimal inference of age-based discriminatory motivation.

Contrary to defendants’ argum ents, the “but-for” causation standard that applies to

Franchino’s ADEA claim does not affect th e analysis on the facts alleged here. Although Franchino must ultimately prove that age was the “but-for cause” of his employer’s adverse action in order to recover, see Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 177 (2009), the allegations in the amended complaint are sufficient at this stage to plausibly allege the discriminatory motivation required under the ADEA. See Vega

, 801 F.3d at 86, 91 (“But-for ca usation does not . . . require proof that [the protected characteristic] was the only cause of the em ployer’s action, but onl y that the adverse

action would not have occurred in the absenc e of the [prohibited] motive.” (alterations and internal quotation marks omitted)).

II. Sex and National Origin/Ethni city Discrimination Claims

By contrast, we agree with the district c ourt that the facts alleged in the complaint do not plausibly support even a minimal infe rence of discriminatory motivation on the basis of sex or national origin/ethnicity. The primary support fo r these claims comes from the allegations regarding Mercado, a co-worker Franchino had been assigned to monitor following complaints from employees in Mercado’s department. The amended complaint alleges that Mercado’s supervisor wanted her disciplined or terminated, but human resources officials supporte d Mercado. It is also allege d that, in an effort to save her job, Mercado falsely accused Franchino of sexually harassing a female employee. Franchino contends that his superiors treated Mercado more favorably because she was a “much younger Hispanic woman.” App. 5. With respect to the sex discrimination claim in particular, the comp laint alleges that Franchin o was replaced by a female employee.

Taken together, these allegations do not sustain Franchino’s “minimal” burden to show discriminatory intent. Littlejohn , 795 F.3d at 311. The complaint provides no reason to conclude that Franchino’s supervis ors, Hill and Pizzarro, were motivated by

discrimination on the basis of sex or ethnic ity/national origin. On the facts alleged, Mercado was concerned that she may lose he r job, so she acted vindictively toward5 Franchino—not because of his membership in any protected classes, but because she perceived him as threatenin g her continued employment.

As to Franchino’s sex discrimination claim, the allegation that he was replaced by a female employee is not enough to make his claim plausible in the particular

circumstances of this case. Fr anchino is correct that we have stated, as noted above, that an inference of discrimination may arise when an employer replaces a terminated employee with an individual outside the employee’s protected class. See id. at 312–13. However, for the purposes of 12(b)(6) anal ysis, we may not consider a particular allegation in isolation; instead, we must c onsider whether the “factual content” in a complaint “allows the c ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Considering the replacement allegation in light of the re st of the complaint, any suggestion of discriminatory motivation is undercut by the allegations that Mercado acted out of vindictiveness and self-preservation. Fran chino therefore has not alleged a plausible

claim of sex discrimination.

III. Retaliation Claims

Finally, we identify no error in the district court’s determination that Franchino

withdrew his retaliation claims. As the dist rict court noted, Fran chino’s opposition to

defendants’ motion to dismiss explicitly stated: “In the interest of judicial economy, Plaintiff hereby withdraws his legal claims of retaliation.” Suppl. App. 44. Moreover, Franchino’s opposition di d not address any of defendan ts’ legal arguments regarding retaliation, further confirming that the claims had been withdrawn. Because Franchino has offered no argument on appeal as to w hy he should be permitted to pursue claims that he expressly withdrew below, we dec line to reinstate his retaliation claims.

* * *

We have considered Franchino’s remaini ng arguments and conclude that they are without merit. Accordingly, we VACATE the judgment of the district court as to Franchino’s age discrimination claim; we AFFIRM the judgment of the district court as to Franchino’s sex and national origin/ethni city discrimination claims and as to his retaliation claims; and we REMAND the case for further proceedi ngs consistent with this

order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court