Marcus v. Leviton Manufacturing Company, Inc. et al

Filing 30

ORDER granting 14 Motion to Dismiss for Failure to State a Claim. SO ORDERED that Defts motion to dismiss pursuant to Rule 12(b)(6) is granted, the action is dismissed with prejudice. Ordered by Judge Sandra J. Feuerstein on 1/6/2016. (Florio, Lisa)

FILED 
CLERK 

1/6/2016 4:43 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
MARC MARCUS,
Plaintiff,
-against-

ORDER
15-CV-656 (SJF) (GRB)

LEVITON MANUFACTURING CO., INC.,
JOHN DOE #1-5 and XYZ CORP. #1-5,
Defendants.
----------------------------------------------------------X 
FEUERSTEIN, J.
Plaintiff, Marc Marcus (“Marcus” or “Plaintiff”), filed this action against his former
employer, Leviton Manufacturing Company, Inc. (“Leviton” or “Defendant”), alleging: i) age
discrimination; ii) breach of contract; iii) hostile work environment; iv) retaliation; and v)
“discriminatory employment practices.” [DE 26, Am. Compl., at ¶ 53]. Defendant has moved
for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant’s motion to
dismiss is granted, and the action is dismissed with prejudice.
I.

BACKGROUND
A.

Facts1

Plaintiff worked at Leviton from January 2002 through May 22, 2014, when Leviton

1

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), the Court
limits “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].” Roth v. CitiMortgage Inc., No. 12-cv-2446, 2013 WL 5205775, at *3 (E.D.N.Y. Sept. 11,
2013), aff’d, 756 F.3d 178 (2d Cir. 2014); see also Kleinman v. Elan Corp., 706 F.3d 145, 147 (2d Cir. 2013).
This Court takes judicial notice of Plaintiff’s EEOC Charge of Discrimination (“EEOC Charge”) and the
EEOC’s Notice of Charge of Discrimination that directly stems from Plaintiff’s EEOC Charge referenced in his
amended complaint. [DE 15-1, Greenhaus Aff., Ex. B; DE 26, Am. Compl., at ¶ 2]. The Court also takes judicial
notice of Defendant’s employee handbook referenced in the amended complaint. [DE 15-1, Greenhaus Aff., Ex. D;
DE 26, Am. Compl., at ¶¶ 34-35].

terminated his employment. [DE 26, Am. Compl., at ¶¶ 10, 15]. He was initially hired as a
training architect and later served as a senior manager of education and training. Id. at ¶¶ 10, 16.
While employed at Leviton, Plaintiff complained “to various individuals” that two (2)
employees, Peter Kleinman (“Kleinman”) and Patricia Fellman (“Fellman”), were engaging in
“inappropriate relations.” Id. at ¶ 38. Plaintiff alleges that “as a result of the inappropriate
relations,” Fellman received “preferential treatment included [sic] but . . . not limited to being
allowed inordinate amount of time off, not being accountable for her time and being placed in
charge of keeping attendance.” Id. at ¶¶ 39, 41. Plaintiff asserts that “sex was a factor in how
[Fellman] was treated as an employee and how other employees who did not engage in illicit
sexual behavior with Mr. Kleinman were treated worse, not only the work environment but
employee reviews and evaluations were all effected [sic].” Id. at ¶ 41. According to Plaintiff,
the “preferential treatment” was “unfair to the other employees, [P]laintiff among them.” [DE
26, Am. Compl., at ¶ 40].
On May 22, 2014, Leviton terminated Plaintiff’s employment. Id. at ¶ 15. Although
“[t]he reason given for his termination was ‘yelling and using profanity,’” id. at ¶ 17, Plaintiff
claims that “in all the years [P]laintiff worked for [D]efendant, [P]laintiff never heard or
witnessed anyone being terminated for using profanity [sic] yet, witnessed other employees
yelling and using profanity.” Id. at ¶ 19. He alleges that Pamela Randal (“Randal”), who was
“substantially younger than [P]laintiff[,] . . . used profanity and was not terminated.” Id. at ¶ 20;
see id. at ¶ 22. Randal “worked under the same vice president as [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.” Id. at ¶¶ 22-23. Although Kleinman was “not . . . considerably
younger than [P]laintiff,” Kleinman also used profanity and was not terminated. [DE 26, Am.

2

Compl., at ¶ 20]. Plaintiff claims that “other than one time,” he has “never” used profanity or
yelled in the office. Id. at ¶ 21.
Plaintiff also claims that “over the previous three [3] years, [D]efendant was making
attempts to become ‘younger,’” by terminating older employees and retaining younger ones.” Id.
at ¶ 28. Plaintiff was fifty-eight (58) years old when he was terminated and claims that he was
terminated “because of his age.” Id. at ¶ 27. “Upon [his] information and belief, [P]laintiff was
replaced with a younger individual” after he was terminated. Id. at ¶ 30.
B.

Procedural History

On August 23, 2014, Plaintiff filed his EEOC Charge against Defendant, alleging
unlawful age discrimination. [DE 15-1, Greenhaus Aff., Ex. B]. On October 15, 2014, the
EEOC issued its Notice of Charge of Discrimination (the “Notice”) to Defendant, informing
Defendant that Plaintiff had made an allegation of prohibited employment discrimination against
it. Id.
On February 10, 2015, Plaintiff filed the present action. [DE 1, Compl.]. Defendant
moved to dismiss the action, and Plaintiff sought leave to amend his complaint. [DE 14, Notice
of Mot. to Dismiss; DE 17, Resp.]. At an October 29, 2015 status conference, the Court granted
Plaintiff leave to file an amended complaint, which was filed on November 10, 2015. [DE 25,
Minute Entry; DE 26, Am. Compl.]. Defendant has supplemented its outstanding motion to
dismiss to address the new allegations in Plaintiff’s amended complaint. [DE 28, Mem.].
II.

DISCUSSION
A.

Standard of Review

A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and although it “does not need detailed

3

factual allegations” to survive a motion to dismiss pursuant to Rule 12(b)(6), it “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, 1965, 167 L. Ed.
2d 929 (2007) (citation omitted); Fed. R. Civ. P. 12(b)(6). The complaint must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009). There must be “more than a sheer possibility that a defendant has acted unlawfully;”
the complaint must “nudge[] . . . claims . . . across the line from conceivable to plausible.” Id. at
678, 680 (quoting Twombly, 550 U.S. at 570). If the complaint tenders “‘naked assertion[s]’
devoid of ‘further factual enhancement,’” it fails the Rule 8 pleading standard and must be
dismissed. Id. at 678 (quoting Twombly, 550 U.S. at 557).
B.

The Amended Complaint Lacks Sufficient Factual Allegations to Withstand
Dismissal.
1.

Age Discrimination

Plaintiff’s first cause of action, which alleges age discrimination against Leviton, cites to
only Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Title VII
prohibits employment discrimination on the basis of race, color, religion, sex, and national
origin; it does not prohibit age discrimination. See Triola v. ASRC Mgmt. Servs. (ASRC MS), No.
10-cv-560, 2011 WL 6181731, at *4 (E.D.N.Y. Dec. 12, 2011). Plaintiff’s age discrimination
claim is therefore not cognizable pursuant to Title VII.
However, even if Plaintiff had raised his age discrimination claim pursuant to the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), the claim must be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim. An age discrimination claim
pursuant to the ADEA is governed by a three (3)-step, burden-shifting framework established in
4

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir. 2007). First, a plaintiff must
establish a prima facie case of age discrimination by a preponderance of the evidence. Id. at 195.
“To achieve this prima facie case, a plaintiff must show membership in the protected age group,
qualifications for the jobs at issue, an adverse employment action, and that the adverse action
occurred under circumstances giving rise to an inference of discrimination.” Id. (citing Terry v.
Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003)). To be a member of the protected age group, the
plaintiff must be at least forty (40) years of age. Id. at 194 (citing 29 U.S.C. §§ 623(a)(1),
631(a)). Second, the burden of production shifts to the defendant to “articulate a nondiscriminatory reason for the employee’s rejection.” Id. at 195. Finally, to prove an age
discrimination claim, the plaintiff must “prove by a preponderance of the evidence that the
defendant’s explanations were pretextual.” Id. (citation omitted).
Plaintiff, at fifty-eight (58) years old, falls within the ADEA’s protected membership
class. Defendant does not contest that Plaintiff was qualified for his job as a senior manager of
education and training at Leviton, or that Plaintiff suffered an adverse employment action when
he was terminated. Defendant argues, however, and this Court agrees, that Plaintiff has not
shown that his termination “occurred under circumstances giving rise to an inference of [age]
discrimination.” D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007).
Plaintiff alleges 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

5

received the same employee manual.” [DE 26, Am. Compl., at ¶¶ 22-23]. Regarding Kleinman,
Plaintiff states that Kleinman was “not . . . considerably younger” than Plaintiff. Id. at ¶ 20.
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. [DE
28, Mem., at 3]. 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. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
The present allegations of age discrimination are speculative and do not “nudge[] . . . [the]
claim[] . . . across the line from conceivable to plausible.” Id. at 678, 680 (quoting Bell Atlantic
v. Twombly, 550 U.S. 554, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)); see Zucker v.
Five Towns College, No. 09-cv-4884, 2010 WL 3310698, at *2 (E.D.N.Y. Aug. 18, 2010)
(quoting Twombly, 550 U.S. at 555) (concluding that an employer may have “dozens of possible
reasons” for terminating plaintiff’s employment and for choosing a new replacement, and that

6

“without actual facts suggesting [a] discriminatory animus, . . . allegations that [plaintiff]
performed his job satisfactory [sic], and that the [employer] then fired him and replaced him with
someone younger, by themselves, fails to raise his ‘right to relief above [a] speculative level’”).
Based upon Plaintiff’s allegations, the Court cannot conclude that “but for” Plaintiff’s age, he
would still be employed at Leviton. See Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d
490, 495 (E.D.N.Y. Mar. 10, 2011) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129
S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009) (holding that “plaintiff retains the burden of
persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action”)). As a
result, Plaintiff has not established a prima facie case of age discrimination, and the claim must
be dismissed.
2.

Breach of Contract

In support of his breach of contract claim, Plaintiff alleges that “Defendant had certain
policies and practices, both in the written handbook and otherwise [sic] which taken together
constitute an express agreement” between him and Leviton, and that Leviton breached their socalled employment contract when it terminated him. [DE 26, Am. Compl., at ¶ 34]. Defendant
responds that pursuant to its employee handbook, Plaintiff’s employment (as well as those of
other Leviton employees) was at will, and not for a definite, fixed term. [DE 16, Mem., at 20].
The employee handbook provides that:
All employees are hired on an at-will [sic] basis. This means that just as you are
free to resign at any time for any reasons, the Company reserves the right to
terminate your employment at any time, with or without cause and without prior
notice. . . . The Company does not guarantee permanent employment of any
employee or employment for any specific period of time. The Company reserves
the right to terminate the employment relationship at any time. Nothing in this
handbook is meant to change the at-will [sic] nature of the employment
relationship.

7

[DE 15-1, Greenhaus Aff., Ex. D]. Pursuant to New York law, “‘employment for an indefinite
or unspecified term’ is presumed to be ‘at will and [is] freely termina[ble] by either party at any
time without cause or notice.’” Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 137 (2d
Cir. 2007) (quoting Horn v. N.Y. Times, 100 N.Y.2d 85, 91, 760 N.Y.S.2d 378, 380, 790 N.E.2d
753, 755 (2003)). The presumption of at will employment is inapplicable only if the employer
and employee are parties to an “agreement establishing a fixed duration.” Id. (quoting In re De
Petris v. Union Settlement Ass’n, 86 N.Y.2d 406, 410, 633 N.Y.S.2d 274, 276, 657 N.E.2d 269,
271 (1995)).
Plaintiff’s at will employment, as specified in Defendant’s employee handbook, was
“freely terminable” by Defendant at any time and for any reason, and Defendant did not breach
its employment contract by terminating Plaintiff. Id. (quoting Horn, 100 N.Y.2d at 91). Plaintiff
has not presented any factual allegations that may “give rise to an understandable and reasonably
cognizable duration of employment so as to overcome New York law’s presumption of
employment at will.” Id. (citing Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 85 (2d Cir.
2001)). Plaintiff’s breach of contract claim must therefore be dismissed.
3.

Hostile Work Environment

Plaintiff claims that he was subjected to a hostile work environment pursuant to Title VII
and the New York State Human Rights Law, N.Y. Executive Law § 296 et seq. (“NYSHRL”),
when he, along with other employees, was “treated worse, not only [in] the work environment[,]
but employee reviews and evaluations were all effected [sic],” as a result of Kleinman and
Fellman’s personal relationship.2 [DE 26, Am. Compl., at ¶ 41]. To plead a hostile work

2

To the extent that Plaintiff seeks to advance a Title VII sex discrimination claim in conjunction with his hostile
work environment claim, Plaintiff has failed to exhaust his administrative remedies, as he did not allege sex
discrimination in his EEOC Charge. See DE 15-1, Greenhaus Aff., Ex. B. The Title VII sex discrimination claim
must therefore be dismissed. See Dudley v. N.Y. City Housing Auth., No. 13-cv-722, 2013 WL 816224, at *1-2

8

environment claim, a plaintiff must advance facts showing “that the complained of conduct: (1)
is objectively severe or pervasive—that is . . . creates an environment that a reasonable person
would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives
as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Kelly
v. Howard I. Shapiro & Assoc. Consulting Engineers, P.C., No. 11-cv-5035, 2012 WL 3241402,
at *6 (E.D.N.Y. Aug. 3, 2012) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)).
“Sex,” as required by the third prong, “logically could only refer to membership in a class
delineated by gender, rather than sexual activity regardless of gender. . . . The proscribed
differentiation under Title VII . . . must be a distinction based on a person’s sex, not on his or her
sexual affiliations.” Id. (quoting DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 306-07
(2d Cir. 1986) (defining “sex” pursuant to Title VII)); see id. at *5 (noting that the standards for
evaluating hostile work environment claims pursuant to Title VII and the NYSHRL are
identical). The three (3) prongs of the test are deemed the objective, subjective, and prohibited
causal factor requirements, respectively. Kelly, 2012 WL 3241402, at *6 (citing Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
“[I]t is well-settled that favoritism of an employee based upon a consensual romantic
relationship, frequently referred to as ‘the paramour preference’, is not actionable under Title VII
or the NYSHRL as a form of gender discrimination.” Id. at *7 (quoting DeCintio, 807 F.2d at
308 (holding that plaintiffs “were not prejudiced because of their status as males; rather, they
were discriminated against because [the supervisor] preferred his paramour[, and the male
plaintiffs] faced exactly the same predicament as that faced by any woman applicant.”)). A

(E.D.N.Y. Mar. 5, 2013) (internal quotations and citations omitted) (holding that exhaustion of administrative
remedies by filing suit with the EEOC is a prerequisite to bringing a Title VII action on the same claim in federal
court).

9

plaintiff advancing a hostile work environment claim must “allege far more than that a
supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a
sexual partner.” Id. at *11 (internal quotation marks and citation omitted). Even if the plaintiff
“may have been subjected to a hostile and abusive environment because she opposed the [sexual
relationship] and the Defendants’ preferential treatment of [a colleague], th[o]se allegations of
hostility are ‘grounded in workplace dynamics unrelated to her sex’” and are insufficient to state
a sex-based hostile work environment claim. Id. at *12 (quoting Brown, 257 F.3d at 256).
Plaintiff alleges only that Fellman received preferential treatment through her personal
relationship with Kleinman, and that Plaintiff and other Leviton employees suffered in employee
reviews and evaluations as a result thereof. Plaintiff: 1) has not provided facts indicating that
Fellman’s preferential treatment was objectively severe or pervasive such that a reasonable
person would have found Leviton’s workplace to be hostile or abusive; and 2) has not shown that
Fellman’s preferential treatment was “because of” Plaintiff’s sex, rather than her personal
relationship with Kleinman. Id. at *6. “Simply because the challenged conduct in this case—
principally, the alleged office romance[]—‘touched on matters of sexuality,’ does not mean that
the conduct constituted a form of sex discrimination.” Id. at *9 (quoting Krasner v. HSH
Nordbank AG, 680 F. Supp. 2d 502, 518 (S.D.N.Y. 2010)). Plaintiff has failed to adequately
state a hostile work environment claim, and the claim must be dismissed.
4.

Retaliation

Plaintiff’s claim of retaliation pursuant to Title VII and the NYSHRL is also subject to
dismissal.3 Plaintiff alleges that he was terminated as a “direct result” of his complaints to

3

Regarding his Title VII retaliation claim, Plaintiff has failed to exhaust his administrative remedies, as he did not
allege retaliation in his EEOC Charge. See DE 15-1, Greenhaus Aff., Ex. B. The Title VII retaliation claim must
therefore be dismissed. See Dudley v. N.Y. City Housing Auth., No. 13-cv-722, 2013 WL 816224, at *1-2 (E.D.N.Y.

10

“various individuals in management” about Fellman and Kleinman’s personal relationship and
Fellman’s derivative preferential treatment. [DE 26, Am. Compl., at ¶¶ 45, 49-50].
A retaliation claim pursuant to Title VII and the NYSHRL requires a plaintiff to
demonstrate: “(1) that she was engaged in protected activity by opposing a practice made
unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered [an]
adverse employment action; and (4) that there was a causal connection between the protected
activity and the adverse action.” Kelly v. Howard I. Shapiro & Assoc. Consulting Engineers,
P.C., No. 11-cv-5035, 2012 WL 3241402, at *12 (E.D.N.Y. Aug. 3, 2012) (quoting GaldieriAmbrosini v. Nat’l Realty & Dev’t Corp., 136 F.3d 276, 292 (2d Cir. 1998)); see id. at *5 (noting
standards for Title VII and NYSHRL retaliation claims are identical) (citations omitted). A
“protected activity” is defined as: 1) an “action taken to protest or oppose statutorily prohibited
discrimination;” or 2) “even when the underlying conduct complained of was not in fact
unlawful,” the plaintiff “establish[ing] that he possessed a good faith, reasonable belief that the
underlying challenged actions of the employer violated [the] law.” Kelly, 2012 WL 3241402, at
*12 (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000), superseded by statute
on other grounds by N.Y.C. Local L. No. 85, and Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002)); see also Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 10809 (2d Cir. 2013) (discussing how N.Y.C. Local L. No. 85 amended the New York City Human
Rights Law to require an independent analysis distinct from its federal and state counterparts).
To be defined as a “protected activity” pursuant to Title VII and the NYSHRL, Plaintiff’s
complaints must have been founded upon a “good faith, reasonable belief that the underlying
challenged actions of the employer violated [the] law.” See Kelly, 2012 WL 3241402, at *12

Mar. 5, 2013) (internal quotations and citations omitted) (holding that exhaustion of administrative remedies by
filing suit with the EEOC is a prerequisite to bringing a Title VII action on the same claim in federal court).

11

(quoting Treglia, 313 F.3d at 719). “The reasonableness of [Plaintiff’s] belief is to be assessed
in light of the totality of the circumstances.” Id. (quoting Galdieri-Ambrosini v. Nat’l Realty &
Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)). Plaintiff’s “[m]ere subjective good faith belief is
insufficient,” and instead, his belief “must be reasonable and characterized by objective good
faith.” Id. at *13 (quoting Sullivan-Weaver v. N.Y. Power Auth., 114 F. Supp. 2d 240, 243
(S.D.N.Y. 2000)).
Plaintiff has not alleged any facts to indicate that “a legally unsophisticated employee
would have a good faith, reasonable belief that complaints about the Defendant[’s] preferential
treatment of [Fellman] constituted discrimination based on gender.” Id. (emphasis added).
Plaintiff’s complaints that Fellman and Kleinman’s personal relationship negatively impacted the
company “as a whole” were gender-neutral complaints and are insufficient to constitute a
“protected activity,” as he has not demonstrated a good faith, reasonable belief that Defendant’s
actions were based upon his sex. Id. at *13-14 (citing Krasner v. HSH Nordbank AG, 680 F.
Supp. 2d 502, 520 (S.D.N.Y. 2010)). In light of Plaintiff’s failure to establish the first element
required for a retaliation claim, or that his actions constituted a “protected activity,” an analysis
of the remaining elements of the claim are unnecessary. Plaintiff has failed to state a retaliation
claim pursuant to Title VII or the NYSHRL, and the claim must be dismissed.
5.

Discrimination

Plaintiff’s final claim that Defendant engaged in “discriminatory employment practices”
against him in violation of the NYSHRL alleges that “[a]s a direct and proximate result of
defendant’s discriminatory employment practices, plaintiff has suffered irreparable harm . . . .”
[DE 26, Am. Compl., at ¶¶ 52-54]. Plaintiff does not specify the nature of the alleged

12

discrimination (e.g., sex discrimination or age discrimination) that Defendant committed against
him.
The NYSHRL provides that “[i]t shall be an unlawful discriminatory practice:
(a) For an employer . . . , because of an individual’s age, race, creed, color,
national origin, sexual orientation, military status, sex, disability, predisposing
genetic characteristics, marital status, or domestic violence victim status, to
refuse to hire or employ or to bar or to discharge from employment such
individual or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment.
...
(e) For any employer . . . to discharge, expel or otherwise discriminate against any
person because he or she has opposed any practices forbidden under this
article or because he or she has filed a complaint, testified or assisted in any
proceeding under this article.
N.Y. Executive Law §§ 296(a) and (e) (emphasis added). As discussed above, Plaintiff has not
shown that Defendant discriminated against him on account of his age, sex, or any other
protected characteristic, or that Defendant retaliated against him by terminating his at will
employment. Plaintiff has thus failed to state a claim that Defendant engaged in any type of
unlawful discriminatory practice against him in violation of the NYSHRL.
III.

CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is

granted, the action is dismissed with prejudice.
SO ORDERED.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: January 6, 2016
Central Islip, New York

13