ADEA Retaliation Claim Dismissal (Judgment on the Pleadings) Affirmed

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).

I discussed the court’s assessment of plaintiff’s discrimination claim in another blog post.

As to plaintiff’s retaliation claim, the court explained:

Lively’s retaliation claim fails for similar reasons. He alleges, in essence, that he complained to WAFRA about Al-Mubaraki’s comments but received no response and was terminated five months later in retaliation. Even if true, Lively has failed to plead but-for causation, which requires “that the adverse action would not have occurred in the absence of the retaliatory motive.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega, 801 F.3d at 90). “Causation may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity.” Id.

Here, Lively has alleged no facts suggesting that the reporting of Al-Mubaraki’s comments was the “reason” for his termination. Nassar, 570 U.S. at 352, 133 S.Ct. 2517. He alleges no evidence (direct or circumstantial) of retaliatory motive based on his reporting of Al-Mubaraki’s comments. Instead, he “has simply asserted in conclusory fashion that ‘as a result of reporting Al-Mubaraki’s misconduct WAFRA seized the opportunity to terminate Lively based on the basis of a false accusation of sex discrimination and harassment.’ ” Lively, 2020 WL 4038350, at *6 (quoting Compl. ¶ 21) (alterations omitted). Nor has Lively alleged temporal proximity between his reports and his termination sufficient to raise a plausible inference of causation. See Duplan, 888 F.3d at 625. Thus, Lively has failed to plead a plausible claim of retaliation under the ADEA, and we affirm the district court’s dismissal of that claim.

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