19

- 1 26 5 Ninying v. NYC Fire Dep’t 

## 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT O N 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 17 th da y of April , two thousand twent y . PRESENT: BARRINGTON D. PARKER , DEBRA ANN LIVINGSTON , JOSEPH F. BIANCO , Circuit Judges.

_____________________________________ George Ful Ninying , Plaintiff
- Appellant ,

v. 19
- 1 26 5 New York City Fire Department, City of New York, New York City Law Department, Defendant s -

Appellees .

_____________________________________
FOR PLAINTIFF
- APPELLANT: George Ful Ninying , pro se , Bronx , NY

. FOR DEFENDANTS
- APPELLEES: Aaron M. Bloom, Jamison Davies, Assistant Corporation Counsel, for Georgia M. Pestana, Acting Corporation Counsel of the City of New York, New York, NY.2 Appeal from a judgment of the United States District Court for the East ern District of New York ( DeArcy Hall , J .). UPON DUE CONSIDERATION, IT IS HEREBY ORD ERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. George Ful Ninying, pro se , appeals from the dismissal of his employment discrimination action against the New York City Fire Department (“FDNY”). Ninying claimed that the F DNY’s failure to promote him violated the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act, and the New York City Human Rights Law (“NYCHRL”). 1 The district court granted the FDNY’s motion to dismiss Ninying’s amended compl aint, reasoning that the FDNY is a city agency that is not subject to suit and Ninying failed to state a claim for age, race, color, religion, or national origin discrimination. Ninying appeal s . We assume the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s dismissal for failure to state a claim

. See Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009)

. To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ( “[T] he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions

.

1 Ninying does not address the dismissal of his NYCHRL claim on appeal, and has therefore abandoned that claim

. See LoSacco v. City of Middletown , 71 F.3d 88, 92

– 93 (2d Cir. 1995) ( applying the general rule that a claim not raised in appell ate briefing is abandoned for pro se litigant s ). In any event, because all of Niny i ng’s federal claims were dismissed for failure to state a claim, the district court properly declined to exercise supplemental jurisdiction over his NYCHRL claim. See Marc us v. AT&T Corp. , 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.”).3 T hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice

. ”). “Where, as here, the complaint was filed pro se, i t must be construed liberally to raise the strongest arguments it suggests. Nonetheless, a pro se complaint must state a plausible claim for relief.” Nielsen v. Rabin , 746 F.3d 58, 63 (2d Cir. 2014) (internal quotation marks omitted). First, the district court properly dismissed Ninying’s claims because the FDNY, as a municipal agency , is not subject to suit

. See N.Y.C. Charter Ch. 17 § 396 (“All actions and proceedings for the recovery of penalties for the violation of any law shall be broug ht in the name of the c ity of New York and not in that of any agency, except where otherwise provided by law.”). The district court provided Ninying an opportunity to name the City as the proper defendant when it granted him leave to file an amended compl aint , and expressly advised him to do so, but Ninying failed to make the recommended amendment

. Second , the district court correctly ruled that Ninying failed to state a claim under the
ADEA. “ A prima facie case of age discrimination requires that plaintiffs demonstrate membership in a protected class, qualification for their position, an adverse employment action, and circumstances that support an inference of age discrimination .” Kassner v. 2nd Ave. Delicatessen, Inc. , 496 F.3d 229, 238 (2d Cir. 2007). The ADEA requires a plaintiff to assert that his age is the “but

- for” cause of the alleged adverse employment action. Gross v. FBL Fin. Servs.,
Inc. , 557 U.S. 167, 177 (2009) . While Ninying asserted that he was passed over for a promotion because of his age, he did not allege any facts to show that age discrimination was the but

- for cause of the FDNY’s failure to promote him. See Nielsen , 746 F.3d at 62 (“[W]e are not required to4 credit conclusory al legations or legal conclusions couched as factual

. . . allegations. ” (internal quotation marks omitted)).
T hird, the district court properly concluded that Ninying failed to state a claim under Title
VII. To state a Title VII claim , Ninying was required to plead that the FDNY “(1)

. . . took adverse action against him , and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision , ” by alleging “ facts that directly show discrimination or facts that indirectl y show discrimination by giving rise to a plausible inference of discrimination.” Vega v. Hempstead Union Free Sch. Dist ., 801 F.3d 72, 87 (2d Cir. 2015). Niny i ng asserts that he was discriminated against because his wife is African American and he is a “Black Minority , ” but he does not allege any facts relating his protected status to his failure to be promoted

. 2 Am. Compl.
3. And though Ninying alleges that he is fluent in French because of his national origin, he has neither identified his national origi n nor alleged that he faced discrimination because of it

. T he district court overlooked Ninying’s claim that the FDNY retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC ”)

. Nonetheless, remand is not warranted. The only details concerning this retaliation claim can be found in t h e EEOC Intake Questionnaire attached to his amended complaint. He alleged that he was denie d a promotion in November 2015 based upon his filing a previous EEOC complaint: the number he ascribed to that complaint indicates that it was filed in 2012.

2 Moreover, Title VII does not provide a cause of action based on marital status or the protected status of one’s spouse. See, e.g. , 42 U.S.C. § 2000e

- 2(a)(1); Ford v. Bernard Fineson Dev. Ctr. , 81 F.3d 304, 310 n.9 (2d Cir. 1996).5 In order to plead a prima facie claim of retaliation under both Title VII and the ADEA, a plaint iff must allege that (1) he participated in a protected activity; (2) the employer knew of his
p rotected activity ; (3) he was subjected to an adverse employment action; and (4) there was a causal connection between the participation in the protected activi ty and the adverse employment action. Hicks v. Baines , 593 F.3d 159, 164 (2d Cir. 2010) ( articulating the standard for a retaliation claim under Title VII); Kessler v. Westchester Cty

. Dep’t of Soc. Servs ., 461 F.3d 199,
205

– 06 (2d Cir. 2006) (applying Title VII retaliation standards and burdens to ADEA). Here, too, Ninying ’s conclusory allegation fail s to state a retaliation claim under either the ADEA or Title VII, both of which required him to allege that his protected activity was the but

- for cause of the adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 US. 338, 360,
362

– 63 (2013) (holding that u nlike other Title VII claims, Title VII retaliation claims must be proved according to “traditional principles” of but

- fo r causation ). Nor did Ninying’s allegation th at he was retaliated against in 2015 for filing a 2012 EEOC c omplaint allege the requi site

caus ation

. See Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 274 (2001) (per curiam) (“Action taken . . . 20 months later suggests, by itself, no causa lity at all.”)

. We have considered Ninying ’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O ’ Hagan Wolfe, Clerk of Court