In Marcus v. Leviton Mfg. Co., No. 15CV656SJFGRB, 2016 WL 74415 (E.D.N.Y. Jan. 6, 2016), the Eastern District of New York dismissed plaintiff’s age discrimination case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Although this plaintiff loses, Judge Feuerstein’s decision is instructive regarding what judges look for when evaluating complaints for compliance with federal pleading standards.
that although he was terminated for using profanity, the reason for his termination was a pretext for discriminating against him based upon his age. He claims that his colleagues, Randal and Kleinman, were not terminated despite using profanity, and that Randal “worked under the same vice president as [P]laintiff,” “was similarly situated to [P]laintiff[,] and was subject to the same evaluations and standards as [P]laintiff and every other employee as all received the same employee manual.” Regarding Kleinman, Plaintiff states that Kleinman was “not … considerably younger” than Plaintiff.
These allegations, held the court, were insufficient:
As Defendant correctly argues, Plaintiff has not identified: 1) how he and Randal are similarly situated, such as Randal’s job title, term of employment, or job responsibilities; 2) the profanity that Randal allegedly used; 3) the circumstances in which she used the profanity; or 4) whether Leviton’s management had any knowledge of Randal’s alleged use of profanity. Although Plaintiff asserts that Defendant has been “terminating older employees and keeping younger ones” over the past three (3) years, he has not provided factual support for the allegation, such as the ages of the older employees, the reasons for their termination, and whether they were similarly situated to him. Plaintiff’s final allegation that “[u]pon information and belief,” he was replaced by a younger employee, is equally unsupported by fact. Plaintiff has not provided information regarding the circumstances in which the new employee was hired, the new employee’s job responsibilities, the new employee’s age, and whether the new employee is similarly situated to him.
Plaintiff’s allegations do not include sufficient factual content for the Court to draw the reasonable inference that Defendant is liable for discriminating against Plaintiff based upon his age.