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### 14-2930-cv Bohnet v. Valley Stream Union Free School District 13



## 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 St ates 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 27 th day of February, two thousand fifteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

_____________________________________ Lynn L. Bohnet, Plaintiff-Appellant , v. 14-2930-cv Valley Stream Union Free School District 13, Elizabeth Lison, Christine Zerillo, Frank Huplonsky, Defendants-Appellees .

_____________________________________ FOR PLAINTIFF-APPELLANT: M ATTHEW W EINICK , Famighetti & Weinick, PLLC, Melville, NY. FOR DEFENDANTS-APPELLEES: J OSEPH W. C ARBONARO , Frazer & Feldman, LLP, Garden City, NY.2 Appeal from an order of the United States Di strict Court for the Eastern District of New York (Hurley, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Lynn L. Bohnet (“Bohnet”), appe als from a judgment of the district court dismissing her claims against her employer, Va lley Stream Union Free School District 13 and individual defendants (“ Defendants”), alleging, inter alia , age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. § 1983 and New York
State Human Rights Law (“NYSHRL”). Bohnet also appeal s the district court’s denial of a motion for leave to amend the complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. This Court reviews de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), “construing the co mplaint liberally, accepting all factua l allegations in the complaint as true, and drawing all reasonable infe rences in the plaintiff’s favor.” Leibowitz v. Cornell Univ. , 445 F.3d 586, 590 (2d Cir. 2006). A plain tiff must allege sufficient fact s to state a claim of relief that is “plausible on its face.” Bell Atl. Corp. v Twombly , 550 U.S. 544, 570 (2007). Such factual allegations must be “more than labels and conclu sions, and a formulaic rec itation of the elements of a cause of action.” Id. at 555. When a complaint pleads facts that are “merely consistent with” a defendant’s liability, the complaint “stops short of the line between possibility and plausibility of entitlement to relief.” Id . at 557. (internal quotation marks a nd brackets omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n ]—that the pleader is entitled to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009) (internal quotation marks omitted).3 Under the ADEA, an employer may not “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). An ADEA plaintiff “must prove that age was the ‘but-for’ cause of the employer's adverse decision,” rather than a motivating factor for the decision. Gross v. FBL Fin. Serv. , 557 U.S. 167, 176 (2009). On review of the record, and drawing all infe rences in Bohnet’s favor , we conclude that the district court fully considered whether th e complaint pleaded “sufficient facts to make plausible the conclusion that ‘but fo r’ her age [Bohnet] would have been hired,” and it correctly determined that the complaint lacked the requisite specificity to withstand a motion to dismiss. Bohnet v. Valley Stream Union Free Sch. Dist. 13 , No. 12-CV-1989 DRH ARL, 2014 WL 3400462, at *4 (E.D.N.Y. July 14, 2014) (emphasis adde d). We agree with the district court, for the reasons set forth in its thorough memorandum of decision, that absent greater specificity, Bohnet’s factual allegations of age discrimina tion both in her original and proposed amended complaint are conclusory and “stop[] short of the line between possibi lity and plausibility.” Twombly , 550 U.S. at 557. The facts alleged do not provide a sufficient basis to conclude that but for her age, Bohnet would have been hired for the positions for which she applied. We have considered all of Bohnet’s remaini ng arguments, and find them to be without merit. Accordingly, we AFFIRM the district court’s grant of De fendants’ motion to dismiss and its denial of Bohnet’s motion for leave to amend the complaint.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk