15

‐ 233

‐ cv

Riddle v. Citigroup, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). A

PARTY CITING A S UMMARY 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 29 th day of February, two thousand sixteen.

PRESENT: BARRINGTON D. PARKER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

BEVERLY A. RIDDLE,

Plaintiff

‐ Appellant

,

v. 15

‐ 233

‐ cv

CITIGROUP, CITIBANK NA, CITIGROUP GLOBAL

MARKETS INC., CITI,

Defendants

‐ Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PLAINTIFF

‐ APPELLANT: Beverly A. Riddle, pro se

, New York, NY.

FOR DEFENDANTS

‐ APPELLEES: Ira G. Rosenstein (Daniel A. Kadish, on the

brief ), Morgan, Lewis & Bockius LLP, New

York, NY.‐ 2

‐ Appeal from the United States District Court for the Southern District of

New York (Hellerstein, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff

‐ appellant Beverly A. Riddle ( ʺ Riddle ʺ ), proceeding pro se

,

appeals the district court ʹ s dismissal, pursuant to Federal Rule of Civil Procedure

12(b)(6), of her complaint, which asserted claims of discrimination and retaliation

pursuant to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act

(the ʺ ADA ʺ ), the Age Discrimination in Employment Act (the ʺ ADEA ʺ ), and state and

city law. We assume the parties ʹ familiarity with the underlying facts, the procedural

history, and the issues on appeal.

ʺ We review de novo a district court ʹ s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff ʹ s favor. ʺ

Chambers v. Time Warner, Inc.

, 282 F.3d 147, 152 (2d Cir. 2002). The complaint must

plead ʺ enough facts to state a claim to relief that is plausible on its face. ʺ Bell Atl. Corp.

v. Twombly

, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009).

Although we must accept as true all the factual allegations in the complaint, that

requirement is ʺ inapplicable to legal conclusions. ʺ Iqbal

, 556 U.S. at 678.‐ 3

‐ Riddle has waived her claims of discrimination based on disability, race,

age, and gender because she fails to argue them in her brief. See Fed. R. App. P. 28(a)(6)

and (a)(8); see also LoSacco v. City of Middletown

, 71 F.3d 88, 92

‐ 93 (2d Cir. 1995).

Accordingly, we do not consider the district court ʹ s dismissal of those claims.

We conclude that the district court correctly dismissed Riddle ʹ s retaliation

claim. For a retaliation claim to survive a motion to dismiss, ʺ the plaintiff must

plausibly allege that: (1) defendants discriminated

‐‐ or took an adverse employment

action

‐‐ against [her], (2) ʹ because ʹ [s]he has opposed any unlawful employment

practice. ʺ Vega v. Hempstead Union Free Sch. Dist.

, 801 F.3d 72, 90 (2d Cir. 2015). To

plead causation, the plaintiff must ʺ plausibly plead a connection between the [adverse]

act and h[er] engagement in protected activity. ʺ Id. Moreover, the plaintiff must allege

that the retaliation was the ʺ but

‐ for ʺ cause of the employer ʹ s adverse action, i.e.

, that

ʺ the adverse action would not have occurred in the absence of the retaliatory motive. ʺ

Id. at 90

‐ 91 (quoting Zann Kwan v. Andalex Grp. LLC

, 737 F.3d 834, 846 (2d Cir. 2013)). It

is not sufficient for the retaliation to have been ʺ a ʹ substantial ʹ or ʹ motivating ʹ factor in

the employer ʹ s decision. ʺ Id.

Here, Riddle ʹ s allegations do not support a claim of retaliation. While she

alleged that she was retaliated against for filing a previous employment discrimination

lawsuit and EEOC charge, she alleged no facts to support a causal connection between

Citigroup ʹ s failure to hire her and her prior complaints other than temporal proximity.‐ 4

‐ Although temporal proximity between protected activity and adverse

employment action can support an inference of discriminatory intent, see Gorman

‐ Bakos

v. Cornell Coop. Extension of Schenectady Cty.

, 252 F.3d 545, 554 (2d Cir. 2001), the

Supreme Court has suggested that ʺ the temporal proximity must be ʹ very close, ʹʺ Clark

Cty. Sch. Dist. v. Breeden

, 532 U.S. 268, 273 (2001). See Vega

, 801 F.3d at 90 (retaliatory

purpose can be shown indirectly by timing of protected activity if activity was

ʺ followed closely in time by adverse employment action ʺ (citing Cifra v. Gen. Elec. Co.

,

252 F.3d 205

, 217 (2d Cir. 2001)). Here, Riddle filed her EEOC charge in April 2008 and

her first discrimination lawsuit in June 2009; she submitted online job applications to

Citigroup starting in October 2010. This gap of some sixteen months is too long to

support a retaliation claim based solely on temporal connection. Compare Littlejohn v.

City of N.Y.

, 795 F.3d 297, 319

‐ 20 (2d Cir. 2015) ( ʺ Littlejohn ʹ s allegations that the

demotion occurred within days after her complaints of discrimination are sufficient to

plausibly support an indirect inference of causation. ʺ ), with Hollander v. Am. Cyanamid

Co.

, 895 F.2d 80, 86 (2d Cir. 1990) (holding that the ʺ lack of evidence demonstrating a

causal nexus between [plaintiff ʹ s] age discrimination complaint and any subsequent

action taken towards him ʺ precluded his claim where the only evidence of causation

was a three

‐ and

‐ a

‐ half

‐ month lapse between complaint and adverse action).

Moreover, we ʺ exercise [our] judgment about the permissible inferences

that can be drawn from temporal proximity in the context of particular cases. ʺ Espinal v.‐ 5

‐ Goord

, 558 F.3d 119, 129 (2d Cir. 2009). Here, Riddle has provided no context for her

retaliation claim other than the fact that she applied for and was rejected for jobs after

suing Citigroup. The district court explained this deficiency to her and granted her

leave to amend, but Riddle did not correct her pleading. For these reasons, Riddle did

not plead enough facts to state a retaliation claim. 1

We have considered all of Riddle ʹ s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk

1 The district court did not separately discuss Riddle’s state and city law claims.

While state law is coextensive with Title VII, the New York City Human Rights Law requires an

independent analysis. Se e Mihalik v. Credit Agricole Cheuvreux North Am., Inc.

, 715 F.3d 102, 108

‐ 09 (2d Cir.

2013). Riddle’s claims still fail under the broader city law.