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16-2383-cv 

Franchino v. Terence Cardinal Cook Health Care Ctr., Inc. 

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 2nd day of June, two thousand seventeen. 

PRESENT: PETER W. HALL, 

CHRISTOPHER F. DRONEY, 

Circuit Judges, 

ALISON J. NATHAN, 

District Judge.



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MICHAEL FRANCHINO, 

Plaintiff-Appellant, 

v. No. 16-2383-cv 

TERENCE CARDINAL COOK HEALTH CARE CENTER, INC.,

ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, DBA

ARCHCARE, 

 Defendants-Appellees.

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 FOR PLAINTIFF-APPELLANT: MICHAEL D. DIEDERICH, JR., Stony 

Point, New York. 

FOR DEFENDANTS-APPELLEES: ERNEST R. STOLZER (Jessica C. Moller, 

of counsel), Bond, Schoeneck & King, 

PLLC, New York, New York. 

 



 Judge Alison J. Nathan, United States District Court for the Southern District of New York, sitting by 

designation. 
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FOR AMICUS CURIAE: ANNE NOEL OCCHIALINO, 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 Commission, 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 appeals from a judgment of the district 

court granting Defendants-Appellees’ motion to dismiss. Franchino challenges the 

dismissal of his claims of unlawful discrimination and retaliation pursuant 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 “ADEA”), 29 U.S.C. § 621 et seq.

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 We 

assume the parties’ familiarity with the underlying facts, 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 resources staff member. In 2014, Franchino was 

67 years old, and his employment with ArchCare was terminated. In connection with 

his termination, Franchino brought suit in the United States District Court for the 

Southern District of New York, asserting claims of discrimination on the basis of age, 

sex, and national origin/ethnicity, as well as claims of retaliation. The amended 

complaint alleges that Franchino’s coworkers and supervisors frequently made comments 

and jokes that evinced an age-based animus, that he was terminated on the basis of false 

allegations of misconduct because his superiors sided with a younger Hispanic female 

employee who wanted Franchino to be fired, and that he was replaced by a younger 

female employee. 

 

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 The amended complaint also asserted claims pursuant to the human rights laws of New York State and 

New York City. After dismissing Franchino’s federal claims, the district court declined to exercise 

supplemental jurisdiction over these remaining claims. 
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The district court granted defendants’ motion to dismiss, concluding that the 

amended complaint did not plausibly allege any 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 retaliation 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. Hempstead 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 stage). To survive a motion to dismiss under 

Rule 12(b)(6), “what must be plausibly supported by facts alleged 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 minimal 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 plaintiff’s allegations “need only give plausible 

support to a minimal inference of discriminatory motivation.” Id. 

 

“An inference of discrimination can arise from circumstances including, but not 

limited to, the employer’s criticism of the plaintiff’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 plaintiff’s discharge.” Id. at 312 (internal quotation marks 

omitted). In addition, “an inference of discrimination also arises when an employer 

replaces a terminated or demoted employee with an individual outside the employee’s 

protected class.” Id. at 312–13. 

Applying these standards, we conclude that 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 conclude that the district court did not err in 

deeming the retaliation claims withdrawn. 

I. Age Discrimination Claims 

The amended complaint includes 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 replaced by a “much younger” employee, and 

the ArchCare personnel who were involved in Franchino’s termination are “all 

substantially younger” than Franchino. App. 4, 7. Franchino was frequently the 
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subject of derogatory age-based cartoons, comments, emails, and jokes in the workplace, 

and his superiors (in the Human Resources Department) were aware of but did not take 

any action to stop this conduct—sometimes even joining in and participating themselves. 

When Franchino was subject to a human resources investigation over false allegations of 

workplace misconduct, he was denied certain procedural rights and protections (such as 

the right to representation during a disciplinary hearing) that were routinely granted to 

younger employees as a matter of departmental 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’ arguments, the “but-for” causation standard that applies to 

Franchino’s ADEA claim does not affect the 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 causation does not . . . require proof that [the protected 

characteristic] was the only cause of the employer’s action, but only that the adverse 

action would not have occurred in the absence of the [prohibited] motive.” (alterations 

and internal quotation marks omitted)). 

II. Sex and National Origin/Ethnicity Discrimination Claims 

By contrast, we agree with the district court that the facts alleged in the complaint 

do not plausibly support even a minimal inference of discriminatory motivation on the 

basis of sex or national origin/ethnicity. The primary support for 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 supported Mercado. It is also alleged 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 complaint alleges that Franchino 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 supervisors, Hill and Pizzarro, were motivated by 

discrimination on the basis of sex or ethnicity/national origin. On the facts alleged, 

Mercado was concerned that she may lose her job, so she acted vindictively toward 
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Franchino—not because of his membership in any protected classes, but because she 

perceived him as threatening 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. Franchino 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) analysis, we may not consider a particular 

allegation in isolation; instead, we must consider whether the “factual content” in a 

complaint “allows the court 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 rest of the complaint, any suggestion of 

discriminatory motivation is undercut by the allegations that Mercado acted out of 

vindictiveness and self-preservation. Franchino 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 district court noted, Franchino’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 did not address any of defendants’ legal arguments regarding 

retaliation, further confirming that the claims had been withdrawn. Because Franchino 

has offered no argument on appeal as to why he should be permitted to pursue claims that 

he expressly withdrew below, we decline to reinstate his retaliation claims. 

* * * 

We have considered Franchino’s remaining 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/ethnicity discrimination claims and as to his 

retaliation claims; and we REMAND the case for further proceedings consistent with this 

order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court