11-1294-cv
Mitchell-White v. Northwest Airlines, Inc.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 21st day of October, two thousand eleven.

PRESENT:
          JOSEPH M. MCLAUGHLIN,
          JOSÉ A. CABRANES,
          DEBRA ANN LIVINGSTON,
                       Circuit Judges.

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MARTA J. MITCHELL-WHITE, individually and on behalf of
others similarly situated,
                               Plaintiff-Appellant,

                     -v.-                                                                                No. 11-1294-cv

NORTHWEST AIRLINES, INC., DELTA AIR LINES, INC.,
as successor to NORTHWEST AIRLINES, INC., and
NORTHWEST AIRLINES PENSION PLAN FOR CONTRACT
EMPLOYEES,
                     Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                 HERBERT EISENBERG (Robert J. Bach, Law
                                                                         Offices of Robert J. Bach, Esq., on the brief),
                                                                         Eisenberg & Schnell LLP, New York, NY.

FOR DEFENDANTS-APPELLEES:                                                STEPHEN P. LUCKE (Andrew Holly, Jonathan
                                                                         Herman, on the brief), Dorsey & Whitney
                                                                         LLP, Minneapolis, MN.

FOR AMICUS CURIAE:                                                       ERIC A. HARRINGTON, U.S. Equal
                                                                         Employment Opportunity Commission,
                                                                         Washington, DC.
        Appeal from a March 1, 2011 judgment of the United States District Court for the Southern
District of New York (Robert P. Patterson, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.

        Plaintiff-appellant Marta J. Mitchell-White, individually and on behalf of those similarly
situated, appeals a February 24, 2011 order of the District Court, on which judgment was entered on
March 1, 2011, dismissing for failure to state a claim on which relief can be granted, Fed. R. Civ. P.
12(b)(6), her age discrimination claim against Northwest Airlines, Inc. (“Northwest”), Delta Air
Lines Inc., as successor to Northwest, and Northwest Airlines Pension Plan for Contract Employees
(“Pension Plan”) (collectively, “defendants”), brought pursuant to the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and further denying her cross-motion for
summary judgment under the ADEA. See Mitchell-White v. Northwest Airlines, Inc., 10-cv-2678, 2011
WL 671630 (S.D.N.Y. Feb. 24, 2011).

                                          BACKGROUND
         We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues raised on appeal. Briefly, Mitchell-White worked for Northwest from 1967 until
2003. During her employment at Northwest and after her retirement, she was a participant in the
Pension Plan. The Pension Plan offers four types of pension benefits, each with its own eligibility
and benefit vesting requirements: (1) Normal Retirement Pension, (2) Early Retirement Pension,
(3) Disability Retirement Pension, and (4) Deferred Vested Pension. Normal Retirement Pension is
available only to those participants who reach the “Normal Retirement Date,” which is defined as
“the date the Participant would attain age sixty-five (65) years or, if later, the date which would be
the fifth (5th) annual anniversary of the date the Participant first became a Participant.” (Pension
Plan, § 1.2.18.) Under the Pension Plan, if participants retires before the age of 65 and is eligible to
receive an Early Retirement Pension, Disability Retirement Pension, or Deferred Vested Pension,
the monthly amount payable under their respective pensions “shall be reduced by [any] Workers’
Compensation Benefits” they receive upon reaching the age of 65. (Pension Plan, §§ 3.2.2, 3.3.2 and
3.4.2.)

         In 2005, Mitchell-White elected to receive an Early Retirement Pension of $1,685.64 per
month under the Pension Plan and also began receiving Workers’ Compensation benefits of $380.00
per week. She turned 65 in February 2006 but continued to receive the full monthly pension benefit
concurrently with her Workers’ Compensation benefits. In June 2008, Mitchell-White received a
letter from the Pension Plan stating that her monthly pension would thereafter be offset by the
amount of her Workers’ Compensation benefits, as it should have been from the time she achieved
the age of 65.

        On April 8, 2009, Mitchell-White filed a Charge of Discrimination against Northwest and
the Pension Plan with the Equal Employment Opportunity Commission (“EEOC”), alleging that
Northwest violated the ADEA by reducing pension benefits to offset Workers’ Compensation
benefits once a participant reached the age of 65. While her Charge was pending, Delta became the
successor to Northwest. On January 7, 2010, the EEOC issued a Notice of Right to Sue for
violations of the ADEA.

        On March 25, 2010, Mitchell-White filed a complaint in the District Court for the Southern
District of New York alleging that the age-triggered Pension Plan violates ADEA § 4(a), 29 U.S.C.
                                                   2
§ 623(a)(1), which provides that it is unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of the individual’s age.”
Defendants filed a motion to dismiss on June 4, 2010, and Mitchell-White filed a notice of cross-
motion for partial summary judgment on June 18, 2010. On February 24, 2011, the District Court
issued an opinion and order granting defendants’ motion to dismiss and denying Mitchell-White’s
motion for summary judgment. The District Court entered judgment for defendants on March 1,
2011.

                                                    I.
           We review de novo a district court’s dismissal of a complaint for failure to state a claim upon
which relief can be granted, accepting all well-pleaded, factual allegations in the complaint as true
and drawing all inferences in favor of the plaintiff. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007); see also Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006). In reviewing a
Rule 12(b)(6) ruling, our task “is merely to assess the legal feasibility of the complaint, not to assay
the weight of the evidence which might be offered in support thereof.” Sims v. Artuz, 230 F.3d 14,
20 (2d Cir. 2000) (internal quotation marks omitted). Although the complaint need not contain
“detailed factual allegations” to survive a motion to dismiss on the pleadings, “[a] pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do,’ . . . [n]or does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555,
557). Accordingly, a complaint must plead “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570; see also Iqbal, 129 S. Ct. at 1949 (holding that a claim will have
“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”).

         We also review de novo a district court’s denial of summary judgment, construing the evidence
in the light most favorable to the non-moving party. See, e.g., Scholastic, Inc. v. Harris, 259 F.3d 73, 81
(2d Cir. 2001); Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000) (noting that the same standard
of review applies for summary judgment motions and cross-motions). Summary judgment is
warranted only upon a showing “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                                    II.
       Upon our de novo review, we affirm the judgment of the District Court substantially for the
reasons stated in its thoughtful and thorough opinion. See Mitchell-White v. Northwest Airlines, Inc., No.
10-cv-2678, 2011 WL 671630 (S.D.N.Y. Feb. 24, 2011).

        Mitchell-White claims that the Pension Plan discriminates on the basis of age in violation of
ADEA § 4(a), 29 U.S.C. § 623(a)(1) by reducing pension benefits to offset Workers’ Compensation
benefits once a participant reaches the age of 65. In Kentucky Retirement Systems v. EEOC, 554 U.S.
135, 148-49 (2008), the Supreme Court held that a state employee pension plan that granted
additional years of service for the purpose of calculating pension benefits to employees who were
disabled prior to age 55 (the plan’s normal retirement age), but none to employees who were
disabled after age 55, did not violate ADEA § 4(a). The Supreme Court held that “[w]here an
employer adopts a pension plan that includes age as a factor, and that employer then treats
employees differently based on pension status, a plaintiff, to state a disparate-treatment claim under
the ADEA, must adduce sufficient evidence to show that the differential treatment was ‘actually
motivated’ by age, not pension status.” Id. at 148.
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         Mitchell-White fails to include any allegations demonstrating that the differential treatment
of which she complains was “actually motivated” by age. Naked assertions that the defendants
“acted intentionally, willfully, and with malice and/or reckless indifference” against her and other
class members (Compl. ¶ 54), without further factual allegations from which to infer such motives,
are insufficient to withstand a motion to dismiss.1 See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Furthermore, applying the reasoning of Kentucky
Retirement, the Pension Plan is not discriminatory. Mitchell-White, 2011 WL 671630, at *4-6 (applying
the six factors the Supreme Court considered in Kentucky Retirement to determine whether the
disparate treatment was “actually motivated” by age); see Kentucky Retirement, 554 U.S. at 143-48.

                                            CONCLUSION
        We have considered all of Mitchell-White’s arguments on appeal and find them to be
without merit. For the reasons stated above, the judgment of the District Court entered March 1,
2011 is AFFIRMED.


                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




        1
           The District Court also properly denied Mitchell-White’s motion for summary judgment. See Fed.
R. Civ. P. 56(a).
                                                    4
