    15-1143
    Johnson v. Andy Frain Services, 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 ASUMMARY ORDER@). A PARTY CITING TO 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 19th day of January, two thousand sixteen.

    PRESENT:
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges,
                BRIAN COGAN,
                      District Judge.∗
    _____________________________________

    Deirdre C. Johnson,

                                 Plaintiff-Appellant,

                       v.                                                           15-1143


    Andy Frain Services, Inc., Dane Vontobel, Dane
    DeSouza, Robert DeCosta, Edmond Quick, SCI
    Companies, Corporate Headquarters

                      Defendants-Appellees.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                            Deirdre C. Johnson, pro se, Patchogue, New York.



    ∗ Hon. Brian Cogan, of the United States District Court for the Eastern District of New York,
    sitting by designation.
FOR DEFENDANTS-APPELLEES:                      John T. Bauer, Justin Robert Marino, Littler
                                               Mendelson P.C., Melville, New York

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Kuntz, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Deirdre Johnson, proceeding pro se, appeals the district court’s dismissal of her

complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

       “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

construing the complaint liberally, 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). The complaint must plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although we must accept as true all the factual

allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556

U.S. at 678.

   I. Discriminatory Action

       The district court properly dismissed Johnson’s complaint on the ground that she failed to

plead a plausible discrimination claim. Discrimination claims under Title VII of the Civil Rights

Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), 42



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U.S.C. § 1981, and the New York State Human Rights Law (“NYSHRL”) are analyzed under the

burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Tolbert

v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (Title VII, § 1981, and NYSHRL); Bucalo v. Shelter

Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (ADEA). “The prima facie case

under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.”

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). “[A]t the initial stage of the litigation”

in a Title VII case, “the plaintiff does not need substantial evidence of discriminatory intent.”

Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015). Rather, “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.” Id.; see also Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). A similar “minimal” pleading

standard applies to ADEA claims. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.

2001). In addition, “a plaintiff alleging age discrimination under the [ADEA] must allege ‘that

age was the but-for cause of the employer’s adverse action.’” Vega, 801 F.3d at 86 (quoting

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2000)).

       Johnson attempted to raise an inference of discrimination based upon disparate treatment:

she was fired and a co-worker outside of her protected class was not.           “An inference of

discrimination can arise from circumstances including . . . more favorable treatment of employees

not in the protected group.” Littlejohn, 795 F.3d at 312 (internal quotation marks omitted)).

However, “[a] plaintiff relying on disparate treatment evidence must show she was similarly

situated in all material respects to the individuals with whom she seeks to compare herself.”



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Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks omitted).

Johnson’s third amended complaint did not allege that she and her co-worker had similar job

descriptions or responsibilities. We will not consider Johnson’s allegations on this score, as they

are advanced for the first time on appeal. See Kraebel v. N.Y.C. Dep’t of Hous. Pres. & Dev., 959

F.2d 395, 401 (2d Cir. 1992).

         Johnson’s complaint otherwise failed plausibly to allege that she suffered an adverse

employment action on the basis of her race, sex, national origin, or age. Although Johnson

alleged that she was harassed and fired, and that she was “discriminated against” based on her race,

sex, national origin, and age, she never alleged that she was fired or harassed “because of” of those

protected characteristics. Vega, 801 F.3d at 88. Even if liberally construed as alleging that she

was fired “because of” those characteristics, Johnson’s complaint alleged no facts that would

create a plausible inference of such discrimination. Likewise, Johnson alleged no facts to suggest

that her age was a “but-for” cause of the harassment or her discharge. Id. at 86.

   II.      NYCHRL Claim

         The district court also correctly determined that Johnson failed to state a discrimination

claim under the New York City Human Rights Law (“NYCHRL”). “[C]ourts must analyze

NYCHRL claims separately and independently from any federal and state law claims.” Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). NYCHRL claims

are to be reviewed more liberally than Title VII claims, and the provisions of the NYCHRL must

be construed broadly in favor of plaintiffs alleging discrimination. See Loeffler v. Staten Island

Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009); Nelson v. HSBC Bank USA, 929 N.Y.S.2d 259, 262

(2d Dep’t 2011).



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       Although the district court erroneously applied the federal employment-discrimination

standards to Johnson’s NYCHRL claim, dismissal was warranted nonetheless, and we may affirm

the judgment below on any basis appearing in the record. Carpenter v. Republic of Chile, 610

F.3d 776, 781 n.6 (2d Cir. 2010). Johnson failed to allege that she was fired or harassed “because

of” her protected characteristics, and she did not plausibly allege any facts that would give rise to

such a connection. See N.Y.C. Admin. Code § 8-107(1)(a).

       We have considered all of Johnson’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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