1 16-2671-cv Tiffany v. Dzwonczyk, et al. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 18 th day of August, two thousand seventeen. PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges , JOAN M. AZRACK, District Judge

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---------------------------- ---------------------------- -------------- RANDALL SCOTT TIFFANY, Plaintiff-Appellant , v. No. 16-2671-cv PHILIP J. DZWONCZYK, MEDICAL DIRECTOR, ACTING ADMINISTRATOR, BONNIE NORTON, DIRECTOR HUMAN RESOURCES, SUSAN PARKER, NUTRITIONAL SERVICES ADMINISTRATOR 2, DEBORAH MURPHY, Defendants-Appellees , CYNTHIA FAIRCHILD, NEW YORK STATE VETERANS HOME, Defendants

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---------------------------- ---------------------------- -------------- FOR APPELLANT: Randall Scott Tiffany, pro se , McDonough, New York.

* Judge Joan M. Azrack, of the United States District Court fo r the Eastern District of New York, sitting by designation.2 FOR APPELLEES: Laura Etlinger, Assistant Solicitor General (Andrea Oser, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, on the brief ), for Eric T. Schneide rman, Attorney General of the State of New York, Albany, New York. Appeal from a judgment of the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the July 5, 2016 judgment of the district court is AFFIRMED. Plaintiff Randall Tiffany, pro se , sued his former employer, the New York State Veterans Home, as well as former supervis ors and a co-worker under the Family and Medical Leave Act of 1993 (“ FMLA”), 29 U.S.C. §§ 2601 et seq. , and Title VII of the Civil Rights Act of 1964 (“Title VII” ), as amended, 42 U.S.C. §§ 2000e et seq . He here appeals the district court’s sua sponte dismissal of his Title VII hostile work environment claim and its grant of defendants’ unopposed motion to dismiss his FMLA retaliation claim. We assume the parties’ familiarity with the underlying fact s and the procedural history of this case, which we reference only as necessary to explain our decision to affirm. We review de novo the dismissal of a complaint, ac cepting the alleged facts as true and drawing all reasonable infe rences in plaintiff’s favor. See Barrows v. Burwell , 777 F.3d 106, 111 (2d Cir. 2015). Nevertheless, “b ald assertions and conclusions of law will not suffice” to avoid dismissal, Spool v. World Child Int’l Adoption Agency , 520 F.3d 178, 183 (2d Cir. 2008) (internal qu otation marks omitted), nor will factual “allegations that are wholly conclusory,” Krys v. Pigott , 749 F.3d 117, 128 (2d Cir. 2014). Rather, a complaint3 must plead sufficient “factual content” to a llow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
1. FMLA Retaliation To state an FMLA retaliation claim, a plai ntiff must plausibly plead that “(1) he exercised rights protected under the FMLA, (2 ) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7 , 691 F.3d 134, 147 (2d Cir. 2012) (internal quotation marks omitted). An inference of retaliatory intent can be drawn from temporal proximity between the exercise of FMLA ri ghts and the adverse action. See id. at 152. The complaint here fails to a llege sufficient facts to admit an inference of retaliatory intent. Allegations that Tiffany was terminated in October 2014, more than a year after returning from FMLA leave and after a year of unauthorized leav e, fail to admit an inference of retaliatory intent based on temporal proximity. See Bucalo v. Shelter Island Union Free Sch. Dist. , 691 F.3d 119, 131 (2d Cir. 2012) (“While we have not drawn a bright line to define the outer limits beyond which a temporal relatio nship is too attenuated to establish a causal relationshi p between a protected activity and an allegedly retaliatory action, courts in this circuit have typically measured that gap as a matter of months, not years.” (internal quotation marks omitted)). Tiffa ny argues that complaints he made to the Inspector General and Governor in June and August 2013 give rise to an inference of retaliation. But these complaints were also too temporally removed from his termination4 over a year later to admit such an inference. In any even t, none of those complaints concerned FMLA leave, but onl y alleged “corrupt and illega l” acts, including nepotism and favoritism. Accordingly, we conclude that Tiffany’ s FMLA retaliation claim was correctly dismissed.
2. Hostile Work Environment We reach the same conclusion as to dism issal of Tiffany’s Title VII hostile work environment claim. “It is axio matic that mistreatment at work . . . is actionable under Title VII only when it occurs because of an employee’ s sex, or other protected characteristic.” Patane v. Clark , 508 F.3d 106, 112 (2d Cir. 2007) (alteration in original) (internal quotation marks omitted). Failure to alle ge membership in a protected class or a relationship between adverse ac tions and protected class stat us warrants dismissal. See id.
at 113. Although Tiffany frames his hostile work envi ronment claim as arising under Title VII, he fails to allege any facts suggesting a relationship between the adverse actions and his membership in a Title VII protected class. In his brief, Tiffany makes the conclusory assertion, unsupported by complaint alle gations, that a court can infer that age discrimination prompted his ho stile work environment. This argument fails because Tiffany explicitly brought his ac tion under Title VII, which co vers discrimination on the basis of race, color, sex, religion, and national origin, not age. See General Dynamics Land Sys., Inc. v. Cline , 540 U.S. 581, 586 (2004) (“Co ngress chose not to include age within discrimination forbi dden by Title VII.”). Moreover, the complaint makes no5 reference to Tiffany’s age.
3. Conclusion We have considered Tiffany’s remaining ar guments 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