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16-2671-cv 

Tiffany v. Dzwonczyk, et al.

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 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 18th 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 for the Eastern District of New 

York, sitting by designation. 
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FOR APPELLEES: Laura Etlinger, Assistant Solicitor General 

(Andrea Oser, Deputy Solicitor General, 

Barbara D. Underwood, Solicitor General, on 

the brief), for Eric T. Schneiderman, 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 ORDERED, 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 supervisors 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 facts 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, accepting the alleged facts as true 

and drawing all reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777 

F.3d 106, 111 (2d Cir. 2015). Nevertheless, “bald 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 quotation marks omitted), nor will factual “allegations that are 

wholly conclusory,” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). Rather, a complaint 
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must plead sufficient “factual content” to allow 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 plaintiff 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 rights and the adverse action. See id. at 152. 

The complaint here fails to allege 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 leave, 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 relationship is too attenuated 

to establish a causal relationship 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)). Tiffany 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 termination 
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over a year later to admit such an inference. In any event, none of those complaints 

concerned FMLA leave, but only alleged “corrupt and illegal” 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 dismissal of Tiffany’s Title VII hostile work 

environment claim. “It is axiomatic 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 allege membership in a protected class or a 

relationship between adverse actions and protected class status warrants dismissal. See id.

at 113. 

Although Tiffany frames his hostile work environment 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 allegations, that a court can infer that age 

discrimination prompted his hostile work environment. This argument fails because 

Tiffany explicitly brought his action under Title VII, which covers 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) (“Congress chose not to include age 

within discrimination forbidden by Title VII.”). Moreover, the complaint makes no 
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reference to Tiffany’s age. 

3. Conclusion 

We have considered Tiffany’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