ADEA Age Discrimination Claim Dismissal (Judgment on the Pleadings) Affirmed, Notwithstanding Ageist Comments

In Lively v. WAFRA Investment Advisory Group, Inc., 2021 WL 3118943 (2d Cir. July 23, 2021), the U.S. Court of Appeals for the Second Circuit affirmed the district court’s award to defendant of judgment on the pleadings, under Federal Rule of Civil Procedure 12(c), of plaintiff’s age discrimination and retaliation claims asserted under the Age Discrimination in Employment Act (ADEA).

Defendant asserts that it terminated plaintiff for violating its company policies prohibiting sexual harassment in the workplace. Plaintiff sued, asserting age discrimination and retaliation, and that defendant’s sexual harassment rationale was merely a pretext to fire him for being an older worker.

After reviewing the legal standards governing defendant’s motion, the court applied them to the facts.

As to plaintiff’s discrimination claim, the court agreed with the district court that plaintiff “failed to plausibly allege that his age was the but-for cause of his termination.”

Initially, the court explained:

[W]e do not credit Lively’s vague and conclusory allegation that he was victim to a “campaign to purge [WAFRA] of elder workers.” Compl. ¶ 17. Although Lively provides the names and positions of several executives who were fired or otherwise forced out, he offers no details that would support any inference of age discrimination, such as the executives’ ages or the dates and stated reasons for their terminations. This vague allegation thus lacks facial plausibility. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

Next, the court turned to plaintiff’s allegations arising from alleged age-related comments by plaintiff’s supervisor, Al-Mubaraki, that (in sum and substance) plaintiff was “too old” and that he would seek to replace plaintiff with a younger counterpart.

The court held:

To state a claim that his termination occurred “because of [his] age,” 29 U.S.C. § 623(a)(1), Lively must plead facts plausibly suggesting “that age was the ‘reason’ that [WAFRA] decided to act,” Gross, 557 U.S. at 176, 129 S.Ct. 2343. Stray age-related remarks are insufficient to raise an inference of discriminatory motive unless they “(1) [were] made repeatedly, (2) drew a direct link between [discriminatory] stereotypes and the adverse employment decision, and (3) were made by supervisors who played a substantial role in the decision to terminate.” Naumovski v. Norris, 934 F.3d 200, 216 n.47 (2d Cir. 2019) (cleaned up).

Here, the complaint fails to allege a “but-for” causal connection between Al-Mubaraki’s comments and Lively’s termination. First, Al-Mubaraki made only two remarks, and Lively provides details for only one of those remarks. More significantly, Lively has failed to raise a reasonable inference that there is “a direct link” between the age-related remarks and his termination. Id. Al-Mubaraki’s comments were separated by several months and occurred five and ten months before Lively’s termination. As the district court explained, “[t]he gap between [Al-Mubaraki’s] alleged comment[s] and the subsequent termination is significant because stray remarks are rarely given great weight, particularly if they were made temporally remote from the date of the decision.” Lively, 2020 WL 4038350, at *5 (cleaned up); see also Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (explaining that stray remarks, “without more,” “do not constitute sufficient evidence to make out a case of employment discrimination”). Moreover, Lively has alleged no facts concerning “other indicia of discrimination” that would make Al-Mubaraki’s remarks “bear a more ominous significance.” Lenzi v. Systemax, Inc., 944 F.3d 97, 112 (2d Cir. 2019) (internal quotation marks omitted). To the contrary, the complaint alleges that Lively was promoted and received positive feedback from Al-Mubaraki after Al-Mubaraki made the discriminatory remarks.

Nor does Lively allege that Al-Mubaraki played any role, much less “a substantial role[,] in the decision to terminate.” Naumovski, 934 F.3d at 216 n.47 (internal quotation marks omitted). Instead, the complaint states that WAFRA’s HR Director and Chief Administrative Officer handled his termination. “[R]emarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark.” Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 115 (2d Cir. 2007), abrogated on other grounds by Gross, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119.

Finally, Lively’s own complaint describes the stated reason for his termination—i.e., “violating company policies and the code of ethics prohibiting sex discrimination and harassment in the workplace.” Even without considering the truth of the allegations contained in Kraut’s EEOC and federal court complaints, the district court could properly have taken judicial notice of the fact that those complaints had been filed. See Lively, 2020 WL 4038350, at *3. Moreover, Lively’s termination letter, which was attached as an exhibit to Defendants’ answer, was also within the universe of materials the district court could consider on a Rule 12(c) motion as a document incorporated by reference into the complaint. See Chambers, 282 F.3d at 152–53. In light of that factual context, Lively’s conclusory narrative that the sexual harassment allegation “was nothing more than a pretext to fire him for being an older worker” is implausible.

[Citations omitted; cleaned up.]

Based on this, the court affirmed the district court’s dismissal of plaintiff’s age discrimination claim.

Notably, the court did so, notwithstanding its determination that the district court misapplied the Rule 12(c) standard by considering the answer’s factual allegations and weighing their relative plausibility against the allegations in the complaint and by relying on documents attached to defendants’ answer without converting their motion to a motion for summary judgment.

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