The Court of Appeals has held that a plaintiff failed to plausibly plead age discrimination and retaliation even though he was terminated five months after he reported that a supervisor made negative comments about his age.
The case is Lively v. WAFRA Investment Advisory Group, issued on July 23. Plaintiff worked for this company for 21 years and was a "top performer." He alleges that a supervisor, Al-Mubaraki told company executives and others that plaintiff was "too old and that he would seek to replace Lively (and them) with younger employees." Plaintiff also alleges that this supervisor told plaintiff's son that the company "needed to replace older employees like his father with younger employees like Lively's son." The first comment took place after June 2017. The second comment happened in November 2017. In November 2017, plaintiff reported these comments about "the discriminatory pattern that was emerging" and specifically reported his supervisor's age-related comments. The HR Director expressed frustration that Al-Mubaraki continued to engage in inappropriate conduct. Another company executive told plaintiff that Al-Mubaraki's comments were intended as a joke. Plaintiff was fired in On May 1, 2018 after the company determined that he had sexually harassed a female subordinate. Plaintiff alleges this justification is false and that the female subordinate had in fact solicited plaintiff's involvement in her personal and professional life and plaintiff had no reason to know their interactions were unwelcome.
This case was dismissed under Rule 12(c), or judgment on the pleadings, which happens after the defendant files its answer. The Court of Appeals (Nardini, Park and Walker) provides a brief detour about the reasons behind Rule 12(c) (as opposed to the more common Rule 12(b)(6), where the defendant seeks to dismiss the case in lieu of an answer). The Court cites a D.C. Circuit case for the proposition that "[J]udgment on the pleadings is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial.” In other words, the Second Circuit says, "a court may consider undisputed allegations of fact on a Rule 12(c) motion under the same standard as Rule 12(b)(6), but it may not use a motion for judgment on the pleadings to weigh disputed factual allegations."
On the discrimination claim, after noting the plaintiff must prove that age was the "but-for" cause of the adverse decision, citing recent Supreme Court authority, Comcast Corp. v. National Assn. of African Am.-Owned Media, 140 S.Ct. 1009 (2020), the Second Circuit states that "the 'but-for causation standard applies not only at trial but at the pleading stage as well." A footnote in this opinion suggests the Second Circuit's analysis in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), which offers a generous legal standard for plaintiffs on a Rule 12(b)(6) motion, may not survive the Supreme Court's analysis in Comcast.
The age-related comments lie at the heart of the case. But these are "stray remarks," the Court of Appeals holds, for the following reasons:
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. Al-Mubaraki’s comments were separated by several months and occurred five and ten months before Lively’s termination."
Second, "Lively has alleged no facts concerning 'other indicia of discrimination' that would make Al-Mubaraki’s remarks 'bear a more ominous significance.' To the contrary, the complaint alleges that Lively was promoted and received positive feedback from Al-Mubaraki after Al-Mubaraki made the discriminatory remarks."
Third, "Lively [does not] allege that Al-Mubaraki played any role, much less 'a substantial role[,] in the decision to terminate.' Instead, the complaint states that WAFRA’s HR Director and Chief Administrative Officer handled his termination." This third factor is a way for plaintiffs to distinguish this case from their own cases.
Fourth, "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. 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. 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."
The retaliation claim is also gone. The Court of Appeals holds that plaintiff has not plausibly plead that his protected activity was the "but for" cause of his termination. Borrowing from Title VII caselaw, the Court states that "ADEA retaliation claims likewise require 'proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.'”
The Court holds that plaintiff "has alleged no facts suggesting that the reporting of Al-Mubaraki's comments was the 'reason' for his termination. 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.’”
What about temporal proximity? Isn't that enough to satisfy the pleading burden? The Court of Appeals holds that plaintiff has not alleged temporal proximity between his reports and his termination sufficient to raise a plausible inference of causation." For that holding, the Court cites Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018), which stated in turn:
Relying on Grant v. Bethlehem Steel Corporation, 622 F.2d 43 (2d Cir. 1980), Duplan contends that the more than two-year delay between his first EEOC charge and these alleged adverse employment actions does not break the chain of causation because the City retaliated against him at the "first available opportunity" to do so in that particular manner. Appellant's Br. at 26. Even assuming that Grant establishes the principle that causation can be shown on that theory, however, it would be difficult to apply it to the facts that Duplan has alleged. In part, that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he was denied. It is also unclear how we could apply a "first available opportunity" theory to what Duplan alleges to be a persistent pattern of denying his applications for new positions when he has only exhausted the last denial in that chain.