21-2670-cv

Bernstein 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 CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 31st 3 day of May, two thousand twenty-two.

4

5 PRESENT:

6 MICHAEL H. PARK,

7 EUNICE C. LEE

8 MYRNA PÉREZ,

9 Circuit Judges.

10 _____________________________________

11

12 STEVEN BERNSTEIN,

13

14 Plaintiff-Appellant,

15

16 v. 21-2670

17

18 NEW YORK CITY DEPARTMENT OF 

19 EDUCATION, ROBERT MERCEDES, in his 

20 capacity as principal of Middle School 390,

21

22 Defendants-Appellees.

23

24 _____________________________________

25

26 FOR PLAINTIFF-APPELLANT: BRYAN D. GLASS, Glass Harlow & 

27 Hogrogian LLP, New York, NY. 

28

29 FOR DEFENDANTS-APPELLEES: KEVIN OSOWSKI, (Richard Dearing, John 

30 Moore, on the brief), Assistant Corporation 

31 Counsel, for Georgia M. Pestana, 

32 Corporation Counsel of the City of New 

33 York, New York, NY.
2

1 Appeal from a judgment of the United States District Court for the Southern District of 

2 New York (Liman, J.).

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

4 DECREED that the amended judgment of the district court is AFFIRMED. 

5 Plaintiff Steven Bernstein was a physical education and health teacher for Defendant New 

6 York City Department of Education (“DOE”) at Middle School 390, where Defendant Robert 

7 Mercedes was the principal. Bernstein sued Defendants for age discrimination, hostile work 

8 environment, and constructive discharge under the Age Discrimination in Employment Act 

(“ADEA”).

1 9 Bernstein alleged various incidents of harassment, mistreatment, and undeserved 

10 discipline and negative evaluations from 2011 until his alleged constructive discharge in 2018. 

11 He also alleged that starting in 2013, Mercedes began targeting “older non-Hispanic employees” 

12 to leave their jobs. App’x at 82. The district court granted Defendants’ motion to dismiss,

13 concluding that most of Bernstein’s ADEA claims are untimely and that the remaining claims fail 

14 because “they do not establish a plausible inference that Defendants’ conduct was based on a 

15 discriminatory motive or on Plaintiff’s age.” Id. at 188. Bernstein timely appealed. We assume 

16 the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues 

17 on appeal.

18 We “review[] de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6),” 

19 accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff’s 

20 favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). To survive a motion to 

21 dismiss, the pleadings must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

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

1 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

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

3 environment, and constructive discharge claims because he fails to allege that he was mistreated 

because of his age. 2 4 In order to establish employment discrimination under the ADEA, “a 

5 plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Lively 

6 v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021) (citation omitted). 

7 Consequently, to survive a motion to dismiss, plaintiffs bringing an employment discrimination 

8 claim under the ADEA must plausibly “allege that age was the but-for cause of the employer’s 

9 adverse action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015) 

10 (cleaned up). 

11 Bernstein alleges that beginning in 2013, Mercedes “specifically targeted older non12 Hispanic employees to leave the school.” App’x at 82. But his “vague and conclusory,” 

13 allegations “offer[] no details that would support any inference of age discrimination.” Lively, 6 

14 F.4th at 306. For example, Bernstein lists the name of ten employees who were allegedly 

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

16 Moreover, Bernstein alleges that these workers were targeted after Mercedes was told by “DOE 

17 supervisors that he had to reduce his staff because of budget cuts.” App’x at 82. But Bernstein 

18 also alleges that these employees had “relatively high salaries,” id., raising an inference that cost, 

19 not age, was the reason they were targeted. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611–

2 It is undisputed that most of 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

1 12 (1993) (explaining that a decision to fire an employee because of the economic consequences 

2 related to their years of service does not constitute age discrimination under the ADEA even if 

years of service is correlated with age).3 3 

4 Bernstein also alleges that he was “treated less well than a similarly situated junior 

5 colleague, Simeon Reid, the only other gym teacher at the school.” App’x at 87. This allegation

6 alone is insufficient to raise an inference of age discrimination. Bernstein has not provided Reid’s 

7 age or otherwise alleged any facts that would allow a court to reasonably infer that Reid was not 

8 “insignificantly younger” than Bernstein. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 

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

10 not enough here to raise an inference of age discrimination, especially because Bernstein again 

11 fails to allege his replacement’s age or allege facts that would allow us to reasonably infer that his 

12 replacement was “[]significantly younger” than him. Id. 

13 Bernstein further alleges that during the 2015–2016 school year, Mercedes asked him when 

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

15 discrimination because they are legitimate questions an employer could ask an employee. See 

16 Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) (“The ADEA does not make all discussion of 

17 age taboo. Nor does the fact that [a plaintiff’s] eligibility for early retirement came up in a 

18 conversation . . . support an inference that age played a role [in the alleged adverse employment 

19 action].”). Moreover, Bernstein makes no attempt to draw “a direct link” between the retirement 

20 questions and any mistreatment or adverse employment actions he suffered, nor does he allege 

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 than performance. 
5

1 “facts concerning other indicia of discrimination that would make [Mercedes’s questions] bear a 

2 more ominous significance.” Lively, 6 F.4th at 306–07 (cleaned up). 

3 Finally, Bernstein argues that the fact that he received his first disciplinary letters and 

4 negative evaluations in 2011 after fifteen years of teaching, and the fact that they increased in 

5 frequency until his alleged constructive discharge in 2018 raises an inference of discrimination. 

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

7 based on his age. Without more, such allegations of discipline and negative evaluations are 

8 insufficient to raise an inference of discrimination. See Viola v. Philips Med. Sys. of N. Am., 42 

9 F.3d 712, 718 (2d Cir. 1994) (“Dismissals are often preceded by adverse performance reviews. 

10 Were we to view this pattern as suspect, without more, many employees would be able to appeal 

11 their personnel evaluations to a jury.”); Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998) 

12 (“[S]udden and unexpected downturns in performance reports cannot, by themselves, provide the 

13 basis for a discrimination action.”). 

14 We have considered all of Bernstein’s remaining arguments and find them to be without 

15 merit. Accordingly, we affirm the amended judgment of the district court.

16

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk of Court