16-2383-cv
Franchino v. Terence Cardinal Cook Health Care Ctr., Inc.


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT
                                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 2nd day of June, two thousand seventeen.
PRESENT: PETER W. HALL,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 ALISON J. NATHAN,
                                 District Judge.
----------------------------------------------------------------------
MICHAEL FRANCHINO,
                                 Plaintiff-Appellant,

                                v.                                                No. 16-2383-cv

TERENCE CARDINAL COOK HEALTH CARE CENTER, INC.,
ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, DBA
ARCHCARE,
                                 Defendants-Appellees.
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    FOR PLAINTIFF-APPELLANT:                                    MICHAEL D. DIEDERICH, JR., Stony
                                                                Point, New York.

    FOR DEFENDANTS-APPELLEES:                                   ERNEST R. STOLZER (Jessica C. Moller,
                                                                of counsel), Bond, Schoeneck & King,
                                                                PLLC, New York, New York.

 Judge Alison J. Nathan, United States District Court for the Southern District of New York, sitting by
designation.


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    FOR AMICUS CURIAE:                                ANNE NOEL OCCHIALINO, Attorney (P.
                                                      David Lopez, General Counsel; Jennifer
                                                      S. Goldstein, Associate General
                                                      Counsel; Lorraine C. Davis, Assistant
                                                      General Counsel, on the brief), Office of
                                                      General Counsel, Equal Employment
                                                      Opportunity Commission, Washington,
                                                      D.C., in support of Plaintiff-Appellant.

      Appeal from a June 16, 2016, judgment of the United States District Court for the
Southern District of New York (Briccetti, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED in part and
AFFIRMED in part, and the case is REMANDED for further proceedings.

      Plaintiff-Appellant Michael Franchino appeals from a judgment of the district
court granting Defendants-Appellees’ motion to dismiss. Franchino challenges the
dismissal of his claims of unlawful discrimination and retaliation pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 621 et seq.1 We
assume the parties’ familiarity with the underlying facts, the record of the prior
proceedings, and issues on appeal.

       Franchino is a Caucasian US-born male who worked for Defendant-Appellee
ArchCare for eight years as a human resources staff member. In 2014, Franchino was
67 years old, and his employment with ArchCare was terminated. In connection with
his termination, Franchino brought suit in the United States District Court for the
Southern District of New York, asserting claims of discrimination on the basis of age,
sex, and national origin/ethnicity, as well as claims of retaliation. The amended
complaint alleges that Franchino’s coworkers and supervisors frequently made comments
and jokes that evinced an age-based animus, that he was terminated on the basis of false
allegations of misconduct because his superiors sided with a younger Hispanic female
employee who wanted Franchino to be fired, and that he was replaced by a younger
female employee.



1
  The amended complaint also asserted claims pursuant to the human rights laws of New York State and
New York City. After dismissing Franchino’s federal claims, the district court declined to exercise
supplemental jurisdiction over these remaining claims.


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       The district court granted defendants’ motion to dismiss, concluding that the
amended complaint did not plausibly allege any discrimination claims and that Franchino
had withdrawn his retaliation claims. On appeal, Franchino argues that the district court
erred in dismissing his discrimination claims and that his retaliation claims should be
reinstated.

        We review the district court’s dismissal of Franchino’s claims de novo, accepting
all factual allegations in the complaint as true and drawing all inferences in Franchino’s
favor. Littlejohn v. City of N.Y., 795 F.3d 297, 306 (2d Cir. 2015). At the pleading
stage, a plaintiff alleging discrimination bears only a “minimal burden to show
discriminatory intent.” Id. at 311; see also Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 85 (2d Cir. 2015) (noting that plaintiff in employment discrimination case
has “minimal burden” at the pleadings stage). To survive a motion to dismiss under
Rule 12(b)(6), “what must be plausibly supported by facts alleged in the complaint is that
the plaintiff is a member of a protected class, was qualified, suffered an adverse
employment action, and has at least minimal support for the proposition that the
employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311. Thus,
at the initial phase of the litigation, a plaintiff’s allegations “need only give plausible
support to a minimal inference of discriminatory motivation.” Id.

       “An inference of discrimination can arise from circumstances including, but not
limited to, the employer’s criticism of the plaintiff’s performance in ethnically degrading
terms; or its invidious comments about others in the employee’s protected group; or the
more favorable treatment of employees not in the protected group; or the sequence of
events leading to the plaintiff’s discharge.” Id. at 312 (internal quotation marks
omitted). In addition, “an inference of discrimination also arises when an employer
replaces a terminated or demoted employee with an individual outside the employee’s
protected class.” Id. at 312–13.

        Applying these standards, we conclude that Franchino’s allegations are sufficient
to state a claim with respect to age discrimination, but not with respect to sex or national
origin/ethnicity discrimination. We also conclude that the district court did not err in
deeming the retaliation claims withdrawn.

I.     Age Discrimination Claims

       The amended complaint includes the following age-related allegations. As an
individual over the age of 40, Franchino is a member of a protected class under the
ADEA, see 29 U.S.C. § 631(a). He was replaced by a “much younger” employee, and
the ArchCare personnel who were involved in Franchino’s termination are “all
substantially younger” than Franchino. App. 4, 7. Franchino was frequently the

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subject of derogatory age-based cartoons, comments, emails, and jokes in the workplace,
and his superiors (in the Human Resources Department) were aware of but did not take
any action to stop this conduct—sometimes even joining in and participating themselves.
When Franchino was subject to a human resources investigation over false allegations of
workplace misconduct, he was denied certain procedural rights and protections (such as
the right to representation during a disciplinary hearing) that were routinely granted to
younger employees as a matter of departmental policy. Reading these allegations
together, they satisfy Franchino’s minimal burden of providing plausible support for a
minimal inference of age-based discriminatory motivation.

       Contrary to defendants’ arguments, the “but-for” causation standard that applies to
Franchino’s ADEA claim does not affect the analysis on the facts alleged here.
Although Franchino must ultimately prove that age was the “but-for cause” of his
employer’s adverse action in order to recover, see Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009), the allegations in the amended complaint are sufficient at this stage
to plausibly allege the discriminatory motivation required under the ADEA. See Vega,
801 F.3d at 86, 91 (“But-for causation does not . . . require proof that [the protected
characteristic] was the only cause of the employer’s action, but only that the adverse
action would not have occurred in the absence of the [prohibited] motive.” (alterations
and internal quotation marks omitted)).

II.    Sex and National Origin/Ethnicity Discrimination Claims

       By contrast, we agree with the district court that the facts alleged in the complaint
do not plausibly support even a minimal inference of discriminatory motivation on the
basis of sex or national origin/ethnicity. The primary support for these claims comes
from the allegations regarding Mercado, a co-worker Franchino had been assigned to
monitor following complaints from employees in Mercado’s department. The amended
complaint alleges that Mercado’s supervisor wanted her disciplined or terminated, but
human resources officials supported Mercado. It is also alleged that, in an effort to save
her job, Mercado falsely accused Franchino of sexually harassing a female employee.
Franchino contends that his superiors treated Mercado more favorably because she was a
“much younger Hispanic woman.” App. 5. With respect to the sex discrimination
claim in particular, the complaint alleges that Franchino was replaced by a female
employee.

       Taken together, these allegations do not sustain Franchino’s “minimal” burden to
show discriminatory intent. Littlejohn, 795 F.3d at 311. The complaint provides no
reason to conclude that Franchino’s supervisors, Hill and Pizzarro, were motivated by
discrimination on the basis of sex or ethnicity/national origin. On the facts alleged,
Mercado was concerned that she may lose her job, so she acted vindictively toward

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Franchino—not because of his membership in any protected classes, but because she
perceived him as threatening her continued employment.

       As to Franchino’s sex discrimination claim, the allegation that he was replaced by
a female employee is not enough to make his claim plausible in the particular
circumstances of this case. Franchino is correct that we have stated, as noted above, that
an inference of discrimination may arise when an employer replaces a terminated
employee with an individual outside the employee’s protected class. See id. at 312–13.
However, for the purposes of 12(b)(6) analysis, we may not consider a particular
allegation in isolation; instead, we must consider whether the “factual content” in a
complaint “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 (2009). Considering
the replacement allegation in light of the rest of the complaint, any suggestion of
discriminatory motivation is undercut by the allegations that Mercado acted out of
vindictiveness and self-preservation. Franchino therefore has not alleged a plausible
claim of sex discrimination.

III.   Retaliation Claims

        Finally, we identify no error in the district court’s determination that Franchino
withdrew his retaliation claims. As the district court noted, Franchino’s opposition to
defendants’ motion to dismiss explicitly stated: “In the interest of judicial economy,
Plaintiff hereby withdraws his legal claims of retaliation.” Suppl. App. 44. Moreover,
Franchino’s opposition did not address any of defendants’ legal arguments regarding
retaliation, further confirming that the claims had been withdrawn. Because Franchino
has offered no argument on appeal as to why he should be permitted to pursue claims that
he expressly withdrew below, we decline to reinstate his retaliation claims.

                                        * * *

        We have considered Franchino’s remaining arguments and conclude that they are
without merit. Accordingly, we VACATE the judgment of the district court as to
Franchino’s age discrimination claim; we AFFIRM the judgment of the district court as
to Franchino’s sex and national origin/ethnicity discrimination claims and as to his
retaliation claims; and we REMAND the case for further proceedings consistent with this
order.

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk of Court




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