17-0568-cv
Pfizenmayer v. Hicksville Public Schools, et al.

                                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 Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of
November, two thousand seventeen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
               Circuit Judges.
________________________________________________

SUSAN PFIZENMAYER,

             Plaintiff-Appellant,

                          v.                                          No. 17-0568-cv

HICKSVILLE PUBLIC SCHOOLS, LEE AVENUE
SCHOOL, STEPHANIE STAM, SUPERINTENDENT
MAUREEN BRIGHT, SUSAN GUILIANO,*

         Defendants-Appellees.
________________________________________________


*
    The Clerk of Court is directed to amend the case caption as set forth above.

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For Plaintiff-Appellant:                              Bruce Connolly, Raiser & Kenniff, P.C.,
                                                      Mineola, NY.

For Defendants-Appellees:                             Steven C. Stern, Sokoloff Stern LLP, Carle
                                                      Place, NY.


        Appeal from the United States District Court for the Eastern District of New York

(Feuerstein, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff Susan Pfizenmayer appeals the judgment of the United States District Court for

the Eastern District of New York (Feuerstein, J.), dismissing her age discrimination complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the

facts and procedural history of this case, as well as the issues on appeal. We review a district

court’s dismissal of a complaint under Rule 12(b)(6) de novo, “accepting all factual allegations

in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

        First, Pfizenmayer argues that the district court erred in dismissing her claim of

discrimination under the Age Discrimination in Employment Act (“ADEA”). A plaintiff

asserting an employment discrimination claim under the ADEA must plausibly allege that her

employer took adverse action against her and that her age was the “but-for” cause of the adverse

action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86–87 (2d Cir. 2015). “A

plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse

change’ in the terms and conditions of employment. To be ‘materially adverse’ a change in

working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job

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responsibilities.’” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)

(quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Here, the district

court correctly determined that the conduct described in Pfizenmayer’s complaint either could

not form the basis for a timely claim or did not rise to the level of an adverse employment action.

Further, Pfizenmayer has not plausibly alleged, for the purposes of a constructive discharge

claim, that the defendants discriminated against her “to the point such that [her] ‘working

conditions bec[a]me so intolerable that a reasonable person in [her] position would have felt

compelled to resign.’” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting Pa. State Police

v. Suders, 542 U.S. 129, 141 (2004)).

        Second, Pfizenmayer contends that the district court erred in dismissing her ADEA

hostile work environment claim. “An actionable discrimination claim based on hostile work

environment under the ADEA is one for which ‘the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the

victim’s employment . . . .’” Kassner, 496 F.3d at 240 (quoting Brennan v. Metro. Opera Ass’n,

192 F.3d 310, 318 (2d Cir. 1999)). Here, though certain aspects of Pfizenmayer’s claimed

treatment are troubling, Pfizenmayer has not plausibly alleged that her “workplace [was]

permeated with discriminatory intimidation, ridicule, and insult” of a kind that “alter[ed] the

conditions of [her] employment.” Id. (quoting Brennan, 192 F.3d at 318).

        Third, Pfizenmayer argues that the district court erred in dismissing her ADEA retaliation

claim. However, Pfizenmayer has not plausibly alleged that she engaged in any protected activity

of which the defendants were aware. See Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461

F.3d 199, 205–06 (2d Cir. 2006). “[I]mplicit in the requirement that the employer have been


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aware of the protected activity is the requirement that it understood, or could reasonably have

understood, that the plaintiff’s opposition was directed at conduct prohibited by” the ADEA.

Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). Pfizenmayer

did not plausibly allege that the defendants understood, or could reasonably have understood,

that her objections to their actions constituted a challenge to age discrimination.

       We have considered all of the parties’ remaining arguments and have found in them no

basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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