15-109 Barone v. S&N Auerbach Mgmt.



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 30 th day of March, two thousand sixteen. 3 4 PRESENT: 5 DENNIS JACOBS, 6 PETER W. HALL, 7 GERARD E. LYNCH, 8 Circuit Judges. 9

_____________________________________ 10 11 Michael Barone, 12 13 Plaintiff-Appellant, 14 15 v. 15-109 16 17 S&N Auerbach Management, Inc., 18 19 Defendant-Appellee. 20

_____________________________________ 21 22 FOR PLAINTIFF-APPELLANT: Michael Barone, pro se, Lake Grove, 23 New York. 24 25 FOR DEFENDANT-APPELLEE: Timothy J. Domanick, Mark S. 26 Mancher, Jackson Lewis P.C., 27 Melville, New York. 28 292 Appeal from the judgment of the United States District Court for the Eastern District of 1 New York (Feuerstein, J.). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court be AFFIRMED

. 4 Michael Barone, pro se, appeals from a dist rict court judgment gr anting the defendant’s 5 motion for judgment on the pleadings and dismissing his complaint for failure to state a claim upon 6 which relief can be granted. 1 Barone sued his former employer under the Age Discrimination in 7 Employment Act (“ADEA”) and the New York State Human Rights Law (“NYSHRL”). 2 We 8 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the 9 issues on appeal. 10

We review de novo a district court’s dismissal of a complaint for failure to state a claim. 11 Littlejohn v. City of New York, 795 F.3d 297, 3 06 (2d Cir. 2015); see Vega v. Hempstead Union 12 Free School Dist., 801 F.3d 72, 78 (2d Cir. 2015) (s ame for Fed. R. Civ. P. 12(c) motion). We 13 “accept[] all factual allegations in the complaint as true, and draw[] all reasonable inferences in the 14 plaintiff’s favor.” Chambers v. Time Warner , Inc., 282 F.3d 147, 152 (2d Cir. 2002); see Vega, 15 801 F.3d at 78 (same for Fed. R. Civ. P. 12(c) mo tion). The complaint must plead “enough facts 16

to state a claim to relief that is plausible on its face,” Bell At l. Corp. v. Twombly, 550 U.S. 544, 17

1 At the time the complaint was filed, Barone wa s represented by counsel. Counsel subsequently withdrew from the representation.

2 Barone’s appellate brief raises arguments ba sed on the New York City Human Rights Law (“NYCHRL”). However, the complaint does not a ssert any such claim; and in any event, the complaint does not allege any “act[] occurring within the boundaries of New York City,” which is necessary for application of the NYCHRL. Shah v. Wilco Sys., Inc., 806 N.Y.S.2d 553, 558 (App. Div. 2005) (citing, e.g., N.Y. Gen. Mun. Law § 239-s; N.Y.C. Admin. Code § 2-201).3 570 (2007), and allow us “to draw th e reasonable inference that th e defendant is liable for the 1 misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 Under the ADEA, a plaintiff must allege th at age was the “but fo r” cause—not merely a 3 motivating factor—of the adverse employment ac tion. Vega, 801 F.3d at 86 (citing Gross v. FBL 4 Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). Theref ore, while an ADEA plaintiff need not plead 5 every element of a prima faci e case to survive a motion to dismiss (or for judgment on the 6 pleadings), the plaintiff must allege facts to plau sibly suggest that (1) his employer took an adverse 7 action against him and (2) age was the “but for” cau se of that adverse action. See id. We have 8 assumed without deciding that “but for” causa tion is also required under the NYSHRL. See 9 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d Cir. 2010). The issue has not been 10 definitively resolved in the New York courts. See, e.g., DeKenipp v. State, 949 N.Y.S.2d 279, 11 282 (App. Div. 2012). 12 Upon de novo review of the record and relevant case law, we conclude that the district 13 court properly dismissed the complaint for failure to state a claim. Barone fails to allege facts 14 “directly show[ing] discrimination or . . . giving rise to a plau sible inference” that he was 15 terminated because of his age; therefore, he does not plausibly plead that his age was the “but-for” 16 cause or a motivating factor of his termination. See Vega, 801 F.3d at 87. Barone’s complaint 17 was filed with the assistance of counsel, so the dist rict court did not abuse its discretion in granting 18 dismissal with prejudice. Cf. J.S. v. T’Kach, 714 F.3d 99, 103 (2d Ci r. 2013) (“[D]istrict courts 19 generally should not dismiss a pro se complaint w ithout granting the plain tiff leave to amend.”). 20 We therefore affirm, for substantially the reasons set forth in the district court’s well-reasoned 21 opinion. 224 We have considered all of Barone’s remaining arguments and find them to be without 1 merit. Accordingly, we AFFIRM the judgment of the district court. 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4