12-2955-cv

Brown v. Daikin America Inc.

United States Court of Appeals 

FOR THE SECOND CIRCUIT

______________ 

August Term, 2012

(Argued: March 5, 2013 Decided: June 27, 2014)

Docket No. 12-2955-cv

______________ 

TODD BROWN,

Plaintiff-Appellant,

–v.–

DAIKIN AMERICA INC., DAIKIN INDUSTRIES LTD.,

Defendants-Appellees.

______________ 

B e f o r e: 

LYNCH, LOHIER, and CARNEY, Circuit Judges.

______________ 

Appeal from a final judgment of the United States District Court for the 

Southern District of New York (Seibel, J.) dismissing plaintiff Todd Brown’s 

original Complaint against defendant Daikin Industries Ltd. (‚DIL‛) and 

Brown’s Amended Complaint against defendant Daikin America Inc. (‚Daikin 
2

America‛) pursuant to Federal Rule of Civil Procedure 12(b)(6). Brown, a white 

male of United States national origin, alleges that DIL and Daikin America (DIL’s

wholly-owned subsidiary) discriminated against him on the basis of his race and 

national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000e, et seq., and the New York State Human Rights Law (‚NYSHRL‛), N.Y. 

Exec. Law § 290, et seq., when they terminated his employment as a part of a 

workforce reduction at Daikin America. Brown claims that Daikin America, 

acting at DIL’s direction, wrongfully failed to consider for termination those 

employees of Japanese national origin who previously worked for DIL and 

would likely return to DIL in the future. We conclude that Brown has 

sufficiently alleged that DIL and Daikin America are a ‚single integrated 

enterprise‛ for purposes of Title VII and the NYSHRL, and that Brown has stated 

a plausible discrimination claim against both entities as his employer. We 

therefore VACATE the District Court’s judgment dismissing those claims and 

REMAND for further proceedings consistent with this opinion. Because Brown

has not alleged, however, the existence of an express written policy limiting

Daikin America or DIL’s authority to terminate his employment without cause, 

Brown failed to state a claim for breach of implied contract. We therefore 

AFFIRM the District Court’s judgment as to that claim.

AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.

______________ 

PHILIP P. KALODNER, ESQ., Gladwyne, Pennsylvania, for 

Plaintiff-Appellant. 

JEROME P. COLEMAN (Adriana S. Kosovych, on the brief), 

Putney, Twombly, Hall & Hirson LLP, New York, 

New York, for Defendants-Appellees.

______________ 
3

SUSAN L. CARNEY, Circuit Judge:

This case involves claims of race and national origin discrimination arising 

from the termination of an individual’s employment with the New York-based 

wholly-owned subsidiary of a Japanese corporation. The District Court 

dismissed the actions against the corporate parent and subsidiary for failure to 

state a claim. We conclude that, under the standards articulated in Cook v. 

Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995), the plaintiff, Todd Brown, 

sufficiently alleged that the corporate parent was part of a ‚single integrated 

enterprise‛ with its American subsidiary to be properly named as a co-defendant 

in a discriminatory discharge suit under Title VII and the New York State 

Human Rights Law. We also conclude that Brown plausibly alleged a claim of

race or national origin discrimination against both the corporate parent and the 

subsidiary. On these counts, we VACATE the judgment of the District Court and 

REMAND for further proceedings consistent with this decision. 

We agree with the District Court, however, that Brown’s claim for breach 

of contract does not survive defendants’ motions to dismiss because he failed to 

allege that either defendant maintained a written policy of terminating 
4

employees only for cause. Accordingly, we AFFIRM the judgment of the District 

Court dismissing Brown’s contract claim.

BACKGROUND

We recite the facts as alleged in Brown’s Complaint and Amended 

Complaint, noting any relevant differences.1 We accept these facts as true for 

purposes of reviewing the District Court’s grant of defendants’ motions to dismiss. 

See Gatt Commc’ns, Inc. v. PMC Assocs. L.L.C., 711 F.3d 68, 74 (2d Cir. 2013).

Brown — who is white and of United States national origin — is a former 

employee of Daikin America, Inc. (‚Daikin America‛), a Delaware corporation 

that is headquartered in Rockland County, New York, and engaged in the 

manufacture and sale of chemical products. Daikin America is a wholly-owned 

subsidiary of Daikin Industries Ltd. (‚DIL‛), a Japanese corporation based in

 

1 After the District Court dismissed with prejudice Brown’s claims against DIL, Brown 

filed an Amended Complaint that included claims against only Daikin America. For purposes 

of evaluating the claims against DIL, we consider the allegations as pled in the initial 

Complaint. See In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir. 2000) (‚We see no 

reason to require repleading of a claim or defense that explicitly has been denied.‛). In 

evaluating Brown’s claims against Daikin America, we consider the allegations pled in the 

Amended Complaint along with those allegations from the original Complaint specifically 

incorporated by the District Court as a result of its finding that Brown manipulated some of the 

allegations in response to Daikin America’s motion to dismiss. 
5

Osaka, Japan.

2

 Brown worked in Daikin America’s New Business Development 

Group (‚the Group‛) from approximately 2001 until 2009, when he was 

discharged as part of a company-wide reduction in force. During his time at 

Daikin America, Brown’s performance reviews were consistently positive. 

Brown is fluent in Japanese and familiar with Japanese business culture. Before 

beginning work at Daikin America, he worked for a Japanese company for six 

years, during which he spent two years living and working in Japan. 

In February 2009, when Brown’s employment with Daikin America ended, 

the Group consisted of six employees, three of whom were white Americans, and 

three of whom were Japanese citizens of Japanese national origin. Each of the 

Japanese employees in the Group previously worked for DIL in Japan, but was 

assigned to Daikin America ‚to act as *Daikin America’s+ employee[ ]‛ while in 

the United States. Complaint (‚Compl.‛) ¶¶ 8, 21. Such inter-company 

‚rotational‛ assignments lasted a period of years.

3

 As a result of the 2009 

 

2 DIL owns Daikin Holdings (USA), Inc., which in turn owns Daikin America. 

3 As noted by the District Court, the Amended Complaint does not contain an allegation 

to this effect. Brown concedes, however, for purposes of this appeal, that we may read both the 

Complaint and the Amended Complaint as alleging the existence of a rotational system in 
6

workforce reduction, the employment of Brown and one other white American 

in the Group was terminated. The remaining white American employee was 

transferred out of the Group, leaving three Japanese citizens employed in the 

Group.

4

 During the same reduction effort, Daikin America also terminated 

employees in three other business groups. In total, seven American employees

(six of whom were white and one of whom was black) lost their jobs in the 

workforce reduction, but no Japanese employees were terminated. 

Brown alleges that, for discriminatory reasons, Daikin America did not 

consider terminating any of the Japanese rotational employees or any employees 

of Japanese national origin who had been hired directly by Daikin America.5 

Brown further alleges that DIL and Daikin America maintained a policy of 

 

which Japanese employees who had previously worked for DIL came to the United States to 

work for Daikin America, with the expectation that the employees would later return to DIL. 

4 The other American in the Group who lost his job was Frank Plahutnik, Jr. As we 

discuss below, Plahutnik also sued Daikin America under Title VII to protest his discharge. 

Plahutnik’s case was assigned to Judge Seibel, as a case related to Brown’s action. See Plahutnik 

v. Daikin Am., Inc., 912 F. Supp. 2d 96 (S.D.N.Y. 2012). 

5 Although the original Complaint alleges that Daikin America did not consider 

terminating the rotational Japanese employees because only DIL had the power to reassign or 

discharge them, the Amended Complaint charges more summarily that discriminatory reasons 

lay behind Daikin America’s failure to consider Japanese employees for termination. See infra 

pp. 8-9.
7

terminating employees only for cause, and that he accepted and remained at his 

job at Daikin America in part because of this policy. 

After exhausting his administrative remedies with the Equal Employment 

Opportunity Commission, Brown filed a complaint against DIL and Daikin 

America in June 2010. In it, Brown contended that DIL and Daikin America 

violated Title VII of the Civil Rights Act of 1964 (‚Title VII‛), 42 U.S.C. 

§ 2000e, et seq., and the New York State Human Rights Law (‚NYSHRL‛), N.Y. 

Exec. Law § 290, et seq., by discriminating against him on the basis of his race or 

national origin. In particular, he alleged that defendants terminated his 

employment without considering similar action against Japanese employees. He 

also alleged, in a separate count, that defendants violated an implied term of his 

employment contract — that he would be terminated only for cause. 

Daikin America filed an answer to Brown’s Complaint and DIL moved to 

dismiss under Federal Rule of Civil Procedure 12(b)(6). The District Court 

granted DIL’s motion to dismiss, reasoning that DIL was not part of a ‚single

integrated enterprise‛ with Daikin America for purposes of determining what 

entity or entities were Brown’s ‚employer‛ under Title VII and the NYSHRL. 
8

The District Court ruled further that Brown did not plausibly allege that DIL had 

any input into the decision to terminate his employment. Brown v. Daikin Am., 

Inc., No. 10 Civ. 4688 (CS), 2011 WL 10842873, at *5-8 (S.D.N.Y. Aug. 19, 2011). 

The court observed that even if DIL had some control over the decision to 

terminate, the Complaint’s allegations supported only ‚the mere possibility of 

misconduct‛ by DIL, rather than stating a plausible claim of discrimination: the 

preferential treatment of Japanese employees was just as likely to have been 

based on their rotational status as their national origin. Id. at *10 (internal 

quotation marks omitted). Finally, the District Court dismissed Brown’s breach 

of contract claim because the Complaint did not allege that DIL had violated a 

written policy limiting its right to discharge its employees. Id.

With the District Court’s leave, Brown filed an Amended Complaint

naming Daikin America as the sole defendant. The Amended Complaint 

remained in all but one material respect the same as the original Complaint: its 

factual narrative omitted any reference to the rotational status of the Japanese 

employees. 
9

Daikin America moved to dismiss the Amended Complaint, and the 

District Court granted the motion in a bench opinion issued on June 22, 2012. 

Disapproving as ‚manipulative‛ Brown’s omission from the Amended 

Complaint of his earlier allegations about the employee rotational program, the 

District Court chose to include those allegations in its analysis of the Amended 

Complaint for purposes of deciding the motion to dismiss. In light of these 

allegations, the District Court ruled that Brown had not plausibly alleged that his 

discharge occurred under circumstances giving rise to an inference of 

discrimination. The court explained that Brown was not similarly situated to the 

Japanese employees assigned to work at Daikin America because, unlike those 

colleagues, he was not a rotational employee. Because Brown had failed to allege 

that he was treated differently than Japanese employees who were similarly 

situated, he had failed to state claims cognizable under Title VII and the 

NYSHRL. The District Court dismissed Brown’s breach of contract claim against 

Daikin America for the same reasons that it gave in support of its earlier 

dismissal of the parallel claim against DIL. 
10

Brown now timely appeals from the judgment entered after dismissal with 

prejudice of both complaints.6

DISCUSSION

We review de novo the grant of a motion to dismiss pursuant to Federal 

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can 

be granted. Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007). A complaint must be 

dismissed if it does not 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). ‚A 

claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.‛ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). ‚Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

 

6 Brown subsequently filed a Rule 60(b) motion in the District Court, seeking 

reconsideration of the language in the court’s June 22, 2012 bench opinion, which Brown 

contends ‚unfairly accus*ed+ him of having done a ‘bait and switch[,]’ of ‘having blatantly 

changed his statement of the facts’ and of setting forth ‘manipulated allegations’ in his 

Amended Complaint.‛ Brown did not seek reconsideration, however, of the court’s ruling that 

the Amended Complaint failed to state a claim. The District Court denied Brown’s Rule 60(b) 

motion by order dated July 18, 2012. 

By letter dated December 13, 2012, Brown requested leave to file a second Rule 60(b) 

motion, arguing that the District Court had filed a ‚directly contrary and inconsistent decision‛ 

in the case brought by Brown’s colleague, Plahutnik. In an order dated February 28, 2013, the 

District Court responded that it would ‚entertain the motion if the case is remanded to *it+,‛ as 

the motion ‚raises a substantial issue.‛ 
11

statements, do not suffice,‛ id., and we ‚are not bound to accept as true a legal 

conclusion couched as a factual allegation,‛ Twombly, 550 U.S. at 555 (internal 

quotation marks omitted).

I. Title VII and NYSHRL Claims

Title VII makes it unlawful for an employer ‚to discharge any individual, 

or otherwise to discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s race . . . or national origin.‛ 42 U.S.C. § 2000e-2(a)(1). The NYSHRL 

mirrors these federal obligations.7 

Brown’s claims against DIL turn at the threshold, however, on whether 

DIL may be held liable as an ‚employer‛ under the relevant provisions of Title 

VII and the NYSHRL. Accordingly, we turn first to this question, which we 

answer in the affirmative. We then address whether, in the Complaint and 

Amended Complaint considered together, Brown has stated a plausible claim of 

discrimination against DIL and Daikin America.

 

7 ‚*B+ecause New York courts rely on federal law when determining claims under the 

New York *State+ Human Rights Law,‛ we analyze these claims in tandem. Hicks v. Baines, 593 

F.3d 159, 164 (2d Cir. 2010) (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177 (2d Cir. 1996)).
12

A. DIL’s liability as Brown’s “employer”

‚*T+he existence of an employer-employee relationship is a primary 

element of [a] Title VII claim[ ].‛ See Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 

370 (2d Cir. 2006); see also 42 U.S.C. § 2000e(b) (defining an ‚employer‛ as ‚a 

person engaged in an industry affecting commerce who has fifteen or more 

employees,‛ as well as ‚any agent of such a person‛). An employer-employee 

relationship is also required to sustain analogous claims under the NYSHRL. See

Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000). 

Although Brown acknowledges that Daikin America — not DIL — is his direct 

employer, he contends that DIL also should be considered his employer for 

purposes of Title VII and NYSHRL liability because DIL and Daikin America 

constitute a ‚single integrated enterprise.‛ Appellant’s Br. at 34. We agree. 

‚To prevail in an employment action against a defendant who is not the 

plaintiff’s direct employer, the plaintiff must establish that the defendant is part 

of an ‘integrated enterprise’ with the employer, thus making one liable for the 

illegal acts of the other.‛ Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d 

Cir. 2000). In essence, a court must consider whether ‚an employee, formally
13

employed by one entity, . . . has been assigned to work in circumstances that 

justify the conclusion that the employee is at the same time constructively 

employed by another entity.‛ Arculeo v. On-Site Sales & Mktg., L.L.C., 425 F.3d 

193, 198 (2d Cir. 2005). Whether two related entities are sufficiently integrated to 

be treated as a single employer is generally a question of fact not suitable to 

resolution on a motion to dismiss. See, e.g., Knowlton v. Teltrust Phones, Inc., 189 

F.3d 1177, 1184 (10th Cir. 1999); Salemi v. Boccador, Inc., No. 02 Civ. 06648 (GEL), 

2004 WL 943869, at *4 (S.D.N.Y. Apr. 29, 2004). 

In Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995), we

adopted a four-part ‚single-employer‛ test to determine when, for Title VII 

purposes, a parent company such as DIL may be considered the employer of its 

subsidiary’s employees. Id. at 1241. Under this test, ‚[a] parent and subsidiary 

cannot be found to represent a single, integrated enterprise in the absence of 

evidence of (1) interrelation of operations, (2) centralized control of labor 

relations, (3) common management, and (4) common ownership or financial 

control.‛ Id. at 1240 (quoting Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th 

Cir. 1994)). ‚Although no one factor is determinative . . . control of labor 
14

relations is the central concern.‛ Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996) 

(citations omitted). 

Here, the District Court ruled that Brown sufficiently alleged that DIL and 

Daikin America maintained interrelated operations and were under common 

ownership.

8 The court nonetheless held that Brown failed adequately to allege 

that the two entities constituted a single integrated enterprise because he did not 

plausibly allege centralized control of labor relations and common management. 

Accepting Brown’s well-pled allegations as true, we conclude that the District 

Court erred in this respect. 

To satisfy the single-employer test, a plaintiff need not allege that the 

parent exercises ‚total control or ultimate authority over hiring decisions,‛ so 

long as he alleges that there is ‚an amount of participation *by the parent+ that is 

 

8

In finding Brown’s allegation of interrelated operations to be sufficient, the District 

Court relied on the Complaint’s allegations that ‚DIL closely directed the operations of . . . 

[Daikin America] and its employees, . . . the approval of DIL was required as to all significant 

actions by *Daikin America+ and its employees,‛ and DIL ‚closely supervised‛ Daikin 

America’s New Business Development Group ‚by e-mail, by telephone conference calls, in 

visits to [Daikin America] by DIL executives and in required visits by [Daikin America] 

employees . . . to DIL in Japan.‛ Brown, 2011 WL 10842873, at *6 (quoting Compl. ¶¶ 5, 8-9, 12). 

The court further explained that ‚the very system of assigning employees from one company to 

work for a period of years at another company suggests a significant degree of interrelated 

operations.‛ Id. Finally, the District Court found that ‚there is no dispute as to common 

ownership, because both Plaintiff and Defendants acknowledge that [Daikin America] is wholly 

owned by DIL.‛ Id. at *7. We agree with the District Court’s assessment of these two factors. 
15

sufficient and necessary to the total employment process.‛ Cook, 69 F.3d at 1241

(internal quotation marks omitted). In determining whether a plaintiff 

adequately alleges centralized control over labor relations — the most important 

prong in the four-part test — the central question is ‚*w+hat entity made the final 

decisions regarding employment matters related to the person claiming 

discrimination?‛ Id. at 1240 (citations omitted). For example, in Cook our Court

found that a parent corporation had the requisite degree of control over labor 

relations to be held liable along with its subsidiary as the plaintiff’s employer

where (a) the parent processed applications for employment for the subsidiary 

and approved personnel status reports; (b) the subsidiary ‚cleared all major 

employment decisions‛ with the parent; and (c) the plaintiff was hired and fired 

by employees of the parent. Id. at 1241. 

Similarly, in Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 

2000) (Sotomayor, J.), we found a genuine issue of material fact regarding 

whether two entities constituted an integrated enterprise sufficient to hold both 

liable as the plaintiff’s employer under the NYSHRL and the Americans with 

Disabilities Act, 42 U.S.C. § 12101, et seq. There, the plaintiff filed disability 
16

discrimination claims against his former employer, Sony Pictures Entertainment, 

Inc. (‚SPE‛) — a subsidiary of the parent corporation — and SPE’s sibling 

company, Columbia Pictures Industries, Inc. (‚CPI‛), which was also a

subsidiary of the parent. To support his claim that the two siblings comprised an 

‚integrated enterprise,‛ the plaintiff produced ‚numerous documents, including 

disability forms and payroll authorizations,‛ listing CPI as his employer. Id. at 

341. Although the record contained evidence reflecting that the siblings 

maintained separate human resources departments, the plaintiff also produced 

pay stubs that showed his earnings as being ‚paid on behalf of Columbia 

Pictures Industries‛ through ‚SPE Corporate Services, Inc.‛ Id. (internal 

quotation marks omitted). Citing Cook, we held that, under the circumstances, ‚a 

reasonable jury could conclude that CPI exercised sufficient control over the 

terms and conditions of *plaintiff’s+ employment to qualify as his ‘employer’ for 

purposes of a discrimination claim.‛

9

Id.

 

9 Although Parker involved sibling corporations, its reasoning applies equally to cases 

involving a parent and subsidiary. See Arculeo, 425 F.3d at 198 (explaining that ‚*a+ single 

employer situation exists where two nominally separate entities are actually part of a single 

integrated enterprise,‛ and that examples of this situation include ‚parent and wholly-owned 

subsidiary corporations, or separate corporations under common ownership and management‛ 

(internal quotation marks omitted)). 
17

Here, Brown alleged that DIL ‚closely directed the operations of its wholly 

owned subsidiary, Daikin America‛ and that DIL’s approval ‚was required as to 

all significant actions by Daikin America.‛ Compl. ¶ 5. Brown charged that DIL

‚immuniz[ed]‛ Japanese rotational employees from discharge by directing 

Daikin America to discharge only employees who were not Japanese, id. ¶ 39, 

and by prohibiting Daikin America from reassigning or discharging Japanese 

rotational employees, id. ¶ 25. Taken together, these allegations sufficiently 

suggest that DIL exercised centralized control over Daikin America’s decisions

about which employees to terminate in the course of the workforce reduction, 

and that DIL, by protecting Japanese employees from discharge, effectively 

ensured that employees of other races or national origins, like Brown, would be

terminated.

We recognize that Brown does not plead facts suggesting that DIL had 

significant responsibility for other aspects of Daikin America’s labor relations. 

Cf. Cook, 69 F.3d at 1241. For instance, Brown does not allege that DIL 

participated in the decision to hire him or expressly directed Daikin to end his 

employment. Nor, for that matter, does he allege common management. 
18

Nonetheless, at this early stage in the litigation, the control that Brown alleged 

DIL to have exercised over Daikin America’s employment actions — lying at the 

core of Brown’s charges of discrimination — is adequate to sustain the action 

against DIL. 

Because Brown has pleaded facts that, if true, demonstrate that Daikin

America and DIL conducted interrelated operations, had common ownership, 

and were subject to centralized control of labor relations, we conclude that he has 

plausibly alleged that DIL and Daikin America both were his employer for 

purposes of his Title VII and NYSHRL claims. 

B. Plausible claim of race or national origin discrimination

We next address defendants’ contention that Brown has failed to state a 

claim of race or national origin discrimination. It has been suggested that 

whether a Title VII plaintiff must plead a prima facie case under the framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive a 

motion to dismiss, or whether the plaintiff must simply allege facts sufficient to 

raise a right to relief above the speculative level, is not an entirely settled 
19

question in our Circuit.10 We are skeptical of these suggestions because the 

Supreme Court held in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), that a 

that a plaintiff need not plead facts establishing a prima facie case under 

McDonnell Douglas to survive a motion to dismiss, id. at 515, and went out of its 

way in Twombly to reaffirm that holding, 550 U.S. 544, 569-70. Nevertheless, we 

need not undertake to resolve the question here because Brown’s discrimination 

claim is sufficient under either standard: it is facially plausible, gives defendants 

 

10 Before its decisions in Twombly and Iqbal, the Supreme Court held that Title VII 

plaintiffs need not plead facts establishing a prima facie case of discrimination under McDonnell 

Douglas because ‚the ordinary rules for assessing the sufficiency of a complaint apply.‛ 

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508, 511 (2002). When Swierkiewicz was decided, 

however, the adequacy of pleadings was governed by the ‚no-set-of-facts‛ test articulated in 

Conley v. Gibson, 355 U.S. 41 (1957) — a test that was ‚retired‛ by Twombly and Iqbal. Iqbal, 556 

U.S. at 670. The Supreme Court nevertheless reaffirmed Swierkiewicz in Twombly, explaining 

that ‚Swierkiewicz did not change the law of pleading, but simply re-emphasized . . . [that] a 

heightened pleading standard for Title VII cases was contrary to the Federal Rules’ structure of 

liberal pleading requirements.‛ 550 U.S. at 569-70. 

Although this Court has not addressed the issue in a published opinion since Iqbal, we 

have applied Swierkiewicz in a summary order. See Chepak v. Metro. Hosp., -- F. App’x --, 2014 

WL 552682, at *1 (2d Cir. Feb. 13, 2014) (explaining that a Title VII complaint ‚need not allege 

specific facts establishing a prima facie case of discrimination under McDonnell Douglas . . . . At 

the pleading stage, we consider only whether the complaint includes factual allegations 

sufficient ‘to raise a right to relief above the speculative level’‛ (citations omitted)). Courts in 

our Circuit have reconciled Swierkiewicz, Twombly, and Iqbal by concluding that, to survive a 

motion to dismiss, a Title VII plaintiff’s complaint must be facially plausible and allege 

sufficient facts to give the defendant fair notice of the basis for the claim; it need not, however, 

make out a prima facie case. See Mohawk v. William Floyd Sch. Dist., No. 13 Civ. 2518 (JS) (GRB), 

2014 WL 838162, at *2 (E.D.N.Y. Mar. 3, 2014) (collecting cases). Nonetheless, some courts have 

questioned the continuing vitality of Swierkiewicz. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 

203, 211 (3d Cir. 2009).
20

fair notice of the basis for his claim, and alleges facts sufficient to establish a

prima facie case under McDonnell Douglas.

To state a prima facie case of discriminatory discharge under Title VII, a 

plaintiff must allege that: (1) he falls within a protected group; (2) he held a 

position for which he was qualified; (3) he was discharged; and (4) ‚the 

discharge occurred under circumstances giving rise to an inference of 

discrimination.‛ Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001)

(internal quotation marks omitted). A plaintiff may demonstrate circumstances 

giving rise to an inference of discrimination by alleging that he was treated less 

favorably than similarly situated employees of other races or national origins. 

See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000).

Here, defendants do not dispute that Brown adequately alleged the 

following: that he is a member of a protected class, was qualified to hold his job,

and suffered an adverse employment action when defendants terminated his 

employment. Instead, defendants argue that Brown’s allegations do not support

an inference of discrimination because the Japanese rotational employees at 

Daikin America were not ‚similarly situated‛ to Brown and the other American 
21

employees. Therefore, defendants argue, the companies had no duty to consider 

the Japanese employees for termination as part of the workforce reduction, and 

Brown has not provided a basis for inferring that his termination was 

discriminatory. We are not persuaded.

To establish an inference of discrimination, a plaintiff must allege that ‚she 

was similarly situated in all material respects to the individuals with whom she 

seeks to compare herself.‛ Id. (internal quotation marks omitted). What will 

constitute ‚all material respects‛ will vary from case to case, of course. We have 

said that the judgment rests on ‚whether the plaintiff and those [she] maintains 

were similarly situated were subject to the same workplace standards.‛ Id. at 40. 

The plaintiff’s and comparator’s circumstances must bear a ‚reasonably close 

resemblance,‛ but need not be ‚identical.‛ Id. Ordinarily, ‚*w+hether two 

employees are similarly situated . . . presents a question of fact,‛ rather than a 

legal question to be resolved on a motion to dismiss. Id. at 39. 

Defendants first argue that the Japanese employees were not similarly 

situated to Brown because they were employed by DIL, and Brown was 

employed by Daikin America. As we have said above, however, for purposes of 
22

the workforce reduction, DIL and Daikin America constituted a single integrated 

enterprise. Therefore, Brown has adequately alleged that he and the Japanese 

employees had a common employer. See Compl. ¶ 8 (alleging that the Japanese 

rotational employees were assigned ‚for a period of years to Daikin America to 

act as its employees‛ (emphasis added)); Am. Compl. ¶ 21 (alleging that Daikin 

America ‚did not terminate any of its employees of the Japanese race and/or of 

Japanese national origin‛ (emphasis added)). 

Defendants next argue that Brown failed to allege plausibly that he and the 

Japanese employees were similarly situated because he did not plead any facts 

about the Japanese employees’ ‚job function, experience, qualifications, [or] rate 

of pay.‛ Appellees’ Br. at 20. Employees may be similarly situated, however, if 

they are ‚subject to the same standards governing performance evaluation and 

discipline.‛ Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999)

(internal quotation marks omitted). Here, Brown alleges that he worked in the 

New Business Development Group with three Japanese employees, two of 

whom reported to the same supervisor as he did. Drawing all reasonable 

inferences in Brown’s favor, as we must, both Brown and the Japanese 
23

employees in the Group are plausibly alleged to be subject to the same 

performance evaluation and disciplinary standards, and therefore similarly 

situated in their employment circumstances.

11

 

Finally, defendants argue that even if Brown was similarly situated to the 

Japanese employees, he fails to state a claim because there were other plausible, 

non-discriminatory reasons for the allegedly disparate treatment. This argument

— in some ways a repackaging of defendants’ first argument — also fails. That 

there may be other explanations for the defendants’ employment decisions does 

not render Brown’s allegations of discrimination inadequate as a matter of law. 

Whether there existed non-pretextual, non-discriminatory explanations for the 

defendants’ employment decisions — a question as to which the defendants bear 

the burden of production, see McDonnell Douglas, 411 U.S. at 802-03 — is not 

properly decided on a motion to dismiss for failure to state a claim. Cf. Plahutnik,

912 F. Supp. 2d at 105 (denying Daikin America’s motion for summary judgment 

because ‚that Japanese rotational employees were not considered for downsizing 

 

11 The District Court further concluded that Brown’s allegations in this respect fell short 

because Brown conceded in his Complaint that employment and termination decisions for the 

assigned Japanese employees could be made only by DIL. Brown, 2011 WL 10842873, at *9; see 

also Compl. ¶ 25. Yet because we hold that DIL and Daikin America constitute a single 

employer for purposes of Brown’s discrimination claims, this concession is irrelevant. 
24

is enough to meet Plaintiff’s de minimis burden . . . of raising an inference of 

discrimination‛).12 

We conclude, therefore, that Brown has stated a plausible claim of 

discrimination against both DIL and Daikin America. Accordingly, we vacate 

the District Court’s dismissal of Brown’s Title VII claim against DIL and Daikin 

America, and remand for proceedings consistent with this opinion. For the same 

reasons, we also vacate and remand the District Court’s dismissal of Brown’s 

NYSHRL claim against both defendants.

II. Breach of Implied Contract

Finally, we briefly address Brown’s claim that Daikin America and DIL 

breached an implied term of his employment contract by terminating his 

employment without cause. In this regard, Brown alleges that it was the policy 

of both Daikin America and DIL not to terminate employees for economic 

 

12 The plaintiff in Plahutnik was the other non-Japanese American in the Group whose 

employment was terminated at the same time as Brown’s. 912 F. Supp. 2d at 98. In denying 

Daikin America’s motion for summary judgment in that case, the District Court concluded that 

Plahutnik had raised a genuine issue of material fact as to whether Daikin America had 

discriminated against him by failing to consider Japanese rotational employees for termination. 

Id. at 105. Brown’s factual allegations are materially identical to the allegations of Plahutnik, 

and yet the District Court ruled that Plahutnik was able to survive summary judgment on this 

issue, while Brown’s complaints required dismissal for failure to state a claim. As the District 

Court appeared to recognize, see supra note 6, these decisions are difficult to reconcile. 
25

reasons, but only ‚for cause,‛ and that he accepted and remained at his job in 

part in reliance on this policy. 

Under New York law, ‚‘employment for an indefinite or unspecified term’ 

is presumed to be ‘at will and . . . freely termina[ble] by either party at any time 

without cause or notice.’‛ Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 

137 (2d Cir. 2007) (quoting Horn v. N.Y. Times Co., 100 N.Y.2d 85, 91 (2003))

(alterations in original). An employee may rebut the presumption of at-will 

employment, however, by demonstrating an ‚express limitation in the individual 

contract of employment curtailing an employer’s right to terminate at will.‛ 

Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 85 (2d Cir. 2001) (internal quotation 

marks omitted). As we have observed, ‚[t]he New York Court of Appeals has 

admonished that this is a ‘difficult pleading burden’ and that ‘*r+outinely issued 

employee manuals, handbooks and policy statements should not lightly be 

converted into binding employment agreements.’‛ Id. (internal citations,

footnote, and alteration omitted).

Here, we see no basis for concluding that the employment relationship 

between Brown and defendants was anything other than at will. Brown’s 
26

employment was not governed by a written contract. Brown did not allege that 

Daikin America or DIL had an express written policy limiting their rights to 

discharge employees. Rather, Brown asserts merely that he was ‚reassured on 

several occasions by his superiors that the policy of Daikin America and DIL was 

not to terminate on the basis of . . . financial difficulties, and that he should not 

fear termination on such basis.‛ Compl. ¶ 19; see also Am. Compl. ¶ 16. This

allegation is insufficient to establish an implied contract that supervenes New 

York’s presumption of at-will employment. 

Accordingly, the District Court properly dismissed his breach of contract 

claim for failure to state a claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the District Court’s dismissal of 

Brown’s breach of contract claim, VACATE the District Court’s judgment 

dismissing Brown’s Title VII and NYSHRL claims, and REMAND for further 

proceedings consistent with this opinion.