19-1265

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 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 17th day of April, two thousand twenty.

PRESENT:

BARRINGTON D. PARKER,

DEBRA ANN LIVINGSTON,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

George Ful Ninying,

Plaintiff-Appellant,

v. 19-1265

New York City Fire Department, City of

New York, New York City Law Department,

Defendants-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 Eastern District of New 

York (DeArcy Hall, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 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 FDNY’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 complaint, 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 appeals. 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 appellate briefing is abandoned for pro se

litigants). In any event, because all of Ninying’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 Marcus 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.”).
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Threadbare 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, it 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 brought in the name 

of the city 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 complaint, 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 to 
4

credit conclusory allegations or legal conclusions couched as factual . . . allegations.” (internal 

quotation marks omitted)).

Third, 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 

indirectly 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). Ninying 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 origin nor alleged that he faced discrimination because of it.

The 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 the EEOC Intake Questionnaire attached to his amended complaint. He alleged that he 

was denied 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).
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In order to plead a prima facie claim of retaliation under both Title VII and the ADEA, a 

plaintiff must allege that (1) he participated in a protected activity; (2) the employer knew of his 

protected activity; (3) he was subjected to an adverse employment action; and (4) there was a 

causal connection between the participation in the protected activity 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 fails 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 unlike other Title VII claims, Title VII retaliation claims must be 

proved according to “traditional principles” of but-for causation). Nor did Ninying’s allegation 

that he was retaliated against in 2015 for filing a 2012 EEOC complaint allege the requisite

causation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (per curiam) (“Action 

taken . . . 20 months later suggests, by itself, no causality 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