21

- 2670

- cv B ernstein v. N .Y.C. Dep’t of Educ.



## 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 CIT ING 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 3 1 s t d a y of M a y , two thousand twenty

- two

. 3 4 PRESENT: 5 MICHAEL H. PARK , 6 EUNICE C. LEE 7 MYRNA P É REZ , 8 Circuit Judges. 9

_____________________________________ 10 11 STEVEN BERNSTEIN , 12 13 Plaintiff

- Appellant , 14 15

v. 21

- 2 670 16 17 NEW YORK CITY DEPARTMENT OF 18 EDUCATION , ROBERT MERCEDES, in his 19 capacity as principal of Middle School 390, 20 21 Defendants

- Appellees

. 22 23

_____________________________________ 24 25 FOR PLAINTIFF

- APPELLANT: B RYAN D. G LASS , Glass Harlow & 26 Hogrogian LLP, New York, NY. 27 28 FOR DEFENDANTS

- APPELLEES: K EVIN O SOWSKI , (Richard Dearing, John 29 Moore, on the brief ), Assistant Corporation 30 Counsel, for Georgia M. Pestana, 31 Corporation Counsel of the City of New 32 York, New York
, NY

. 332 Appeal from a judgment of the United States District Court for the Southern District of 1
New York ( Liman
, J

. )

. 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the amended judgment of the district court is AFFIRMED

. 4

Plaintiff Steven Bernstein was a physical education and health teacher for Defendant New 5
York City Department of Education (“DOE”) at Middle School 390, where Defendant Robert 6
Mercedes was the principal. Bernst ein sued Defendants for age discrimination, hostile work 7
environment, and constructive discharge under the Age Discrimination in Employment Act 8
(“ADEA”)

. 1 Bernstein alleged various incidents of harassment
, mistreatment , and undeserved 9
discipline and nega tive evaluations from 2011 until his alleged constructive discharge in 2018

. 10
He also alleged that starting in 2013, Mercedes began targeting “older non

- Hispanic employees” 11

to leave their jobs

. App’x at 82. The district court granted Defendants’ motion to dismiss
, 12
concluding that most of Bernstein’s ADEA claims are untimely and that the remaining claims fail 13
because “they do not establish a plausible inference that Defendants’ conduct was based on a 14
discriminatory motive or on Plaintif f’s age

. ” Id. at 188. Bernstein timely appealed. We assume 15
the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues 16
on appeal. 17

We “review[] de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6),” 18
accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff’s 19

favor. Littlejohn v. City of New York , 795 F.3d 297, 306 (2d Cir. 2015). To survive a motion to 20
dismiss, the pleadings must “state a clai m to relief that is plausible on its face.” Ashcroft v. Iqbal
, 21

1 Bernstein also alleged violations of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). Bernstein does not challenge the district court’s dismissal of these claims on appeal.3 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007))

. 1
The district court properly dismissed Bernstein’s age discrimination, hostile work 2

environment, and c onstructive discharge claims because he fails to allege that he was mistreated 3
because of his age. 2 In order to establish employment discrimination under the ADEA, “a 4
plaintiff must prove that age was the ‘but

- for’ cause of the employer’s adverse decision.” Lively 5
v. WAFRA Inv. Advisory Grp., Inc. , 6 F.4th 293, 303 (2d Cir. 2021) (citation omitted)

. 6
Consequently, to survive a motion t o dismiss, plaintiffs bringing an employment discrimination 7
claim under the ADEA must plausibly “allege that age was the but

- for cause of the employer’s 8

adverse action .” Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 86 (2d Cir. 2015) 9
( cleaned up ). 10
Bernstein alleges that beginning in 2013, Mercedes “specifically targeted older non

11
Hispanic employees to leave the school.” App’x at 82. But h is “vague and conclusory,” 12
allegations “offer [] no details that would support any inference of age discrimi nation.” Lively
, 6 13

F.4th at 30 6

. For example, Bernstein lists the name of ten employees who were allegedly 14

“ targeted ” but fails to provide any information suggesting they were targeted because of age

. 15
Moreover, Bernstein alleges that these workers were targeted after Mercedes was told by “DOE 16
supervisors that he had to reduce his staff because of budget cuts

. ” App’x at 82. B ut Bernstein 17
also alleges that these employees had “relatively high salaries,” id.
, raising an inference that cost, 18
not age, was the reason they were targeted. S ee Hazen Paper Co. v. Biggins
, 507 U.S. 604, 611

– 19

2 It is undisputed that most o f the incidents Bernstein alleges are untimely for purposes of his age discrimination claim because they occurred more than 300 days before he filed his EEOC notice. See 29 U.S.C. § 626(d)(1)(B); Davis

- Garett v. Urban Outfitters, Inc. , 921 F.3d 30, 42 (2d Cir. 2019). But Bernstein’s hostile work environment and constructive discharge claims are not time

- barred because “all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” Id. (cleaned up).4 12 (1993) (explaining that a decision to fire an employee because of the economic consequences 1
related to their years of se rvice does not constitute age discrimination under the ADEA even if 2
years of service is correlated with age). 3 3
Bernstein also alleges that he was “treated less well than a similarly situated junior 4
colleague, Simeon Reid, the only other gym teacher at t he school.” App’x at 87. This allegation 5
alone is insufficient to raise an inference of age discrimination

. Bernstein has not provided Reid’s 6
age or otherwise alleged any facts that would allow a court to reasonably infer that Reid was not 7
“insignifican tly younger” than Bernstein. O’Connor v. Consol. Coin Caterers Corp. , 517 U.S. 8

308, 313 (1996). Similarly, Bernstein’s allegation that he was replaced by a “younger” teacher is 9

not enough here to raise an inference of age discrimination
, especially because Bernstein again 10
fails to allege his replacement’s age or allege facts that would allow us to reasonably infer that his 11
replacement was “ [] significantly younger” than him

. I d. 12

Bernstein furt her alleges that during the 2015

– 2016 school year , Mercedes asked him when 13

he would retire three times. Without more, t h ese questions do not raise an inference of age 14

discrimination because they are legitimate questions an employer c ould ask an employee

. See 15
Raskin v. Wyatt Co. , 125 F.3d 55, 63 (2d Cir. 1997) (“The ADEA does not make all discussion of 16
age taboo. Nor does the fact that [ a plaintiff’s] eligibility for early retirement came up in a 17
conversation . . . support an inference that age played a r ole [in the alleged adverse employment 18
action].”). Moreover, Bernstein makes no attempt to draw “a direct link” between the retirement 19
questions and any mistreatment or adverse employment actions he suffered, nor does he allege 20

3 Bernstein also alleged that Linda White, a 64

- year

- old general education teacher, left the school due to consistently negative ratings, while Mr. Alvarez, who was a younger special

- education teacher
, received positive ratings. This comparison fails to raise an inference of age discrimination. The complaint does not mention Alvarez’s age
, whether White and Alverez were similarly situated, or whether the difference in ratings was due to age rather th an performance.5 “facts concerning other ind icia of discrimination that would make [Mercedes’s questions] bear a 1
more ominous significance

. ” Lively , 6 F.4th at 306

– 07 (cleaned up). 2
Finally, Bernstein argu es that the fact that he received his first disciplinary letters and 3
negative evaluations in 2011 after fifteen years of teaching, and the fact that they increased in 4
frequency until his alleged constructive discharge in 2018 raises an inference of discrimination. 5

But Bernstei n does not plead sufficient facts connecting the discipline or poor ratings to animus 6

based on his age

. Without more, such allegations of discipline and negative evaluations are 7

insufficient to raise an inference of discrimination. See Viola v. Philips M ed. Sys. of N. Am. , 42 8
F.3d 712, 718 (2d Cir. 1994) (“Dismissals are often preceded by adverse performance reviews. 9
Were we to view this pattern as suspect, without more, many employees would be able to appeal 10
their personnel evaluations to a jury.”); Dan zer v. Norden Sys. , 151 F.3d 50, 56 (2d Cir. 1998) 11
(“[S]udden and unexpected downturns in performance reports cannot, by themselves, provide the 12
basis for a discrimination action.”). 13

We have considered all of B ernstein ’s remaining arguments and find them to be without 14
merit. Accordingly, we affirm the amended judgment of the district court. 15

16 FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Court 18