Barone v. S&N Auerbach Management, Inc.
OPINION & ORDER granting 32 Motion for Judgment on the Pleadings. SO ORDERED that deft's motion seeking judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is granted and the complaint is dismissed in its entirety with prejudice for failure to state a claim for relief. The Clerk of the Court shall enter judgment in favor of deft and close this case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 12/8/2014. (Florio, Lisa)
IN CLERK'S OFFICE
US DISTRICT COURT E D N V
UNITED STATES DISTRICT COURT
DEC 08 2014
lONG lSI.J\ND OFFICE
OPINION & ORDER
S&N AUERBACH MANAGEMENT, INC.,
On December 12, 2012, plaintiff Michael Barone ("plaintiff'') commenced this employment
discrimination action against defendant S&N Auerbach Management, Inc. ("defendant"), alleging
that defendant discriminated against him because of his age in violation of the Age Discrimination
in Employment Act ("ADEA''), 29 U.S.C. §§ 621, et seq., and the New York State Human Rights
Law ("NYSHRL''), N.Y. Exec. Law§§ 290, et seq. Defendant now moves pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure for judgment on the pleadings. For the reasons stated
herein, defendant's motion is granted.
Plaintiff is a sixty (60) year old man who was employed by defendant as a Superintendent
from 1973 until 1982, and as a General Manager from 1982 until his employment was terminated
on or about May 9, 2012. (Complaint ["Compl."], ~~ 6, II, 13). According to plaintiff, during the
The facts are taken from the complaint and are assumed to be true for purposes of this
motion only. They do not constitute findings of fact by the Court.
course of his employment he "maintained an excellent work record[,]" (Compl., 'lfl2), and "never
received any written or verbal warnings, was never given any negative feedback regarding his work
performance, [and] was never given any unsatisfactory reviews." (Compl., 'lfl6).
Plaintiff alleges that "occasionally" during the course of his employment, with the
permission and consent of defendant's owner, (Compl., 'll'lfl7, 18), he would hire defendant's
employees to work on his own personal renovations, and that "he was never reprimanded for doing
so[.]" (Compl., 'lfl8). 2
In or about April2012, plaintiff hired several of defendant's employees to complete
renovations at the home of one of his relatives. (Compl., 'lfl9). According to plaintiff, he told
those employees "to perform the work after work hours and on weekends[,]" and defendant was
aware of that project "and even allowed Plaintiff to order supplies through [it]." (Compl., 'll'lfl9,
On or about May 7 and 8, 2012, two (2) of defendant's employees were unable to perform
scheduled work for defendant in Suffolk County due to rain. (Compl., 'lf21). Plaintiff asked those
employees "to stop at his relative's home on their way back to the office since they were unable to
complete their work task[,]" and those employees "spent approximately two (2) hours cleaning at
[his] relative's home" on each of those days. (Compl., 'lf22).
On or about May 9, 2012, defendant terminated plaintiff's employment "for allegedly using
In his affidavit in opposition to defendant's motion, plaintiff avers, inter alia, that Harvey
Auerbach ("Harvey"), defendant's principal at all relevant times, allowed him ''to use employees
on company time for [his] personal use if needed, as it was a rule by  Harvey  that if any
employee needed help with anything on company time, to help each other, even if it was a nonrelated work issue * * *.'' (Plf. Aff., 'lfl7).
company employees." (Compl., '1[23). 3 Plaintiff alleges that "[s]ubsequent to [his] termination,
[defendant] hired a thirty (30) year old male to perform most, if not all of[his] job duties, at a
substantially reduced salary." (Compl., '1[24; see also id., '1[30).4
On December 12, 2012, plaintiff, by counsel, filed a complaint against defendant alleging
that defendant discriminated against him because of his age in violation of the ADEA (first cause
of action) and the NYSHRL (second cause of action) and seeking, inter alia, an award of back pay;
front pay; prejudgment interest; lost fringe benefits; compensatory, liquidated and punitive
damages; costs; and attorney's fees. 5
Defendant now moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for
judgment on the pleadings.
In his affidavit in opposition to defendant's motion, plaintiff avers: (1) that his
employment was terminated by Steven Auerbach ("Steven"), Harvey's son, "for using employees
on company time for [his] personal use and for theft of materials for [his] personal use without
paying for such[,]" (Plf. Aff., '1[19); and (2) that Steven also did not like him and did not want him
"as a 'wedge between him and his sister Nancy[,]"' ili!,., '1[30; see also '11'1!31-32).
In his affidavit in opposition to defendant's motion, plaintiff avers that prior to
terminating his employment, Steven had hired that employee, Dan Wilkens ("Wilkens"), "who was
in his early thirties[,] to work at his Townhouses in Coram, New York." (Plf. Aff., '1[18; ~also
s At the time plaintiff commenced this action, he was represented by counsel. However,
by order dated November 12, 2013, the Honorable William D. Wall, former United States
Magistrate Judge, granted the motion of plaintiff's counsel to withdraw. Accordingly, plaintiff is
now proceeding pro se in this action.
Standard of Review
In deciding a Rule 12(c) motion, the same standard as applicable to a motion to dismiss
under Rule 12(b)(6) is employed. See Alcantara v. Bakerv and Confectionerv Unjon and Indus.
Int'l Pension Fund Pension Plan, 751 F.3d 71, 75 (2d Cir. 2014); Hogan v. Fischer, 738 F.3d 509,
514-15 (2d Cir. 2013). Thus, the standard of review on a motion made pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure is that a plaintiff plead sufficient facts "to state a claim for
relief that is plausible on its face." Bell Atlantic Corn. v. Twombly. 550 U.S. 544, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007); §llll also Hogan, 738 F.3d at 514; In re Thelen LLP, 736 F.3d 213,
218 (2d Cir. 2013). "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." Ashcrofty. Iqbal, 556 U.S. 662,678,129 S. Ct. 1937,1949, 173 L. Ed. 2d 868 (2009).
The plausibility standard requires "more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937; ~also Pension Benefit Guar. Corn. ex rei.
St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705,730
(2d Cir. 2013).
"A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action wiii not do.'"
556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly, 550
U.S. at 555, 127 S. Ct. !955). "Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement."' Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct.
1955). "Factual allegations must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in fact)."
Twombly, 550 U.S. 544, 127 S. Ct. at 1959.
In deciding a motion pursuant to Rule 12(b)(6) or Rule 12(c), the Court must liberally
construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff. Seeln re September 11 Litig., 751 F.3d 86,90 (2d Cir. 2014),
cert. denied sub nom Cedar & Washington Assocs. LLC v. Port Auth. ofN.Y. and N.J., No. 14239, 14A25, 2014 WL 6724336 (Dec. I, 2014); Aegis Ins. Servs .. Inc. v. 7 World Trade Co.. L.P.,
737 F.3d 166, 176 (2d Cir. 2013); Butnjck v. General Motors Corn., 472 F. App'x 80, 82 (2d Cir.
July 11, 2012) (summary order). However, this tenet "is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937; see also Mirabilio v. Regional Sch. Dist.
!Q, 761 F .3d 212, 213 (2d Cir. 20 14). "While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations." .!gMl, 556 U.S. at 679, 129 S. Ct. 1937.
"In keeping with these principles a court considering a motion to dismiss [or for judgment on the
pleadings] can choose to begin by identifYing pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth." Id.; ~also Dejesus v. HF Mgmt. Serys..
LLC, 726 F.3d 85, 87-88 (2d Cir. 2013), cert. denied, 134 S. Ct. 918, 187 L. Ed. 2d 781 (2014).
Nonetheless, a plaintiff is not required to plead "specific evidence or extra facts beyond
what is needed to make the claim plausible." Arista Records. LLC v. Doe 3, 604 F.3d 110, 120-1
(2d Cir. 2010); ~also Pension Benefit, 712 F.3d at 729-30. "When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief." Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.
The Court must limit itself to the facts alleged in the complaint, which are accepted as true;
to any documents attached to the complaint as exhibits or incorporated by reference therein; to
matters of which judicial notice may be taken; or to documents upon the terms and effect of which
the complaint "relies heavily" and which are, thus, rendered "integral" to the complaint. Chambers
v. Time Warner. Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also In re Thelen, 736 F.3d at 218.
Accordingly, plaintiff's "Response to Defendant's First Set oflnterrogatories" has been excluded
from the Court's consideration of defendant's motion for judgment on the pleadings.
Age Discrimination Claims
Age discrimination claims under the ADEA and NYSHRL are analyzed under the same
standards. Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001); see also
Tomassi v. Insignia Fin. Gro .. Inc., 478 F.3d Ill, 114 n. 3 (2d Cir. 2007).
"A prima facie case of age discrimination requires that plaintiffs demonstrate membership
in a protected class, qualification for their position, an adverse employment action, and
circumstances that support an inference of age discrimination." Kassner v. 2"" Ave. Delicatessen
Inc., 496 F.3d 229, 238 (2d Cir. 2007); see also Bucalo v. Shelter Island Union Free Sch. Dist., 691
F.3d 119, 129 (2d Cir. 2012). For purposes of this motion, only the last element, i.e., whether
plaintiff's employment was terminated under circumstances supporting an inference of age
discrimination, is at issue.
"The sine qua non of a
* * * discriminatory action claim * * * is that the discrimination
must be because of[a protected characteristic]." Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)
(emphasis in original) (quotations and citation omitted); see also Gross v. FBL Fin. Servs.. Inc.,
557 U.S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)("To establish a disparate treatment
claim under* * *the ADEA, * * *a plaintiff must prove that age was the 'but-for' cause of the
employer's adverse decision.") "[W]hile a discrimination complaint need not allege facts
establishing each element of a prima face case of discrimination to survive a motion to dismiss, • •
* it must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the
line from conceivable to plausible to proceed* * *." Equal Emp't OPPortunity Comm'n v. Port
Auth. ofN.Y. and N.J., 768 F.3d 247,254 (2d Cir. 2014) (alterations, quotations and citations
omitted); see also Maldonado v. George Weston Bak;eries, 441 F. App'x 808, 808-09 (2d Cir. Dec.
19, 2011) (summary order) (holding that although a plaintiff is not required "to plead specific facts
to show a prima facie case of discrimination[,] * * * dismissal is nevertheless appropriate where
the plaintiff failed to allege even the basic elements of a discriminatory action claim."); Patane, 508
F.3d at 112 n. 3 (affirming dismissal where the plaintiff"failed to allege even the basic elements of
a discriminatory action claim.")
The complaint alleges that defendant terminated plaintiff's employment "for allegedly
using company employees[,]" (Compl., ~ 23), after he twice directed two (2) of its employees to
the home of one of his relatives to clean. The sole allegation upon which plaintiff bases his claim
of age discrimination is that defendant subsequently "hired a thirty (30) year old male to perform
most, if not all of [his] job duties, at a substantially reduced salary." (Compl.,~ 24; see also ilL~
30). That allegation, alone, is insufficient to support an inference of age discrimination. See, ll..&.
Fagan v. New York State Electric & Gas Corn., 186 F.3d 127, 134 (2d Cir. 1999) ("The
replacement of an older worker with a younger worker or workers does not itself prove unlawful
discrimination."); Foster v. Humane Soc'y of Rochester and Monroe Cnty.. Inc., 724 F. Supp. 2d
382,391 (W.D.N.Y. 2010) (finding that an allegation that the plaintiff was replaced by a woman in
her early thirties, alone, "is not enough to give rise to an age discrimination claim."); Gundlach v.
lnt'l Bus. Machines Com., No. 11-cv-846, 2012 WL 1520919, at* 6 (S.D.N.Y. May 1, 2012),
aff'd on other grounds- F. App'x - , 2014 WL 5740944 (2d Cir. Nov. 6, 2014). (finding that an
allegation that the plaintiff's work was divided among other personnel, at least one of whom was
considerably younger than the plaintiff, after his employment was terminated was insufficient to
state a plausible claim of age discrimination); Nance v. Citv of New York, No. 09-cv-2786, 2011
WL 2837491, at* 4 (E.D.N.Y. July 14, 2011) ("[A]n allegation that plaintiff was replaced by a
younger employee is not sufficient, without more, to survive a motion to dismiss."); Zucker v. Five
Towns College, No. 09-cv-4884, 2010 WL 3310698, at* 2 (E.D.N.Y. Aug. 18, 2010) ("[W]ithout
actual facts suggesting discriminatory animus[,] * * * allegations that [the plaintiff] performed his
job satisfactory [sic], and that the [defendant] then fired him and replaced him with someone
younger, by themselves, fail to raise his right to relief above [a] speculative level." (fifth brackets
in original; quotations and citation omitted)); Liburd v. Bronx Lebanon Hosp. Ctr., No. 07 Civ.
11316,2008 WL 3861352, at* 6 (S.D.N.Y. Aug. 19, 2008) (finding that an allegation that the
plaintiff was replaced by a younger employee, "without more, is not enough to survive a motion to
dismiss.") "If it were, then any time an ADEA-covered employer terminated an employee over age
forty, the employer would be unable to replace that employee with someone younger, without
exposing itself to potential liability for age discrimination. That is not the law." Foster, 724 F.
Supp. 2d at 391.
In his opposition to defendant's motion, plaintiff contends, inter alia, that defendant's
allegations that he used its employees on company time and stole company materials for his own
personal use are false and unsubstantiated and that he has witnesses who indicate that there was
always some personal animosity between Steven and himself. However, both the complaint and
plaintiff's opposition to defendant's motion are bereft of any factual allegation from which it may
reasonably be inferred that either Steven's animosity towards plaintiff, or his decision to terminate
plaintiff's employment, was because of plaintiff's age. Accordingly, defendant's motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is
granted and the complaint is dismissed in its entirety with prejudice for failure to state a claim for
For the reasons stated herein, defendant's motion seeking judgment on the pleadings
pursuant to Rule 12(c} of the Federal Rules of Civil Procedure is granted and the complaint is
dismissed in its entirety with prejudice for failure to state a claim for relief. The Clerk of the Court
shall enter judgment in favor of defendant and close this case.
s/ Sandra J. Feuerstein
SANDRA J. FEUERSTEIN
United States District Judge
Dated: December 8, 2014
Central Islip, N.Y.
To the extent plaintiff contends that he has plausible causes of action for defamation and
violations of the New York City Human Rights Law ("NYCHRL"), the complaint, which was
drafted by his former counsel, does not assert such causes of action. To the extent plaintiff seeks
leave to amend his complaint to assert such causes of action, since the sole federal cause of action
is dismissed with prejudice, I decline to exercise supplemental jurisdiction over any such state law
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?