     05-4237-cv
     Kassner v. 2 nd Avenue Delicatessen Inc.



 1                         UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                 August Term, 2005

 4   (Argued: February 17, 2006                        Decided: July 24, 2007)

 5                              Docket No. 05-4237-cv

 6         ------------------------------------------------------

 7                       DIANE KASSNER and MARSHA REIFFE,

 8                              Plaintiffs-Appellants,

 9                                  JOSEPH FARRINO,

10                                     Plaintiff,

11                                      –- v. –-

12   2nd AVENUE DELICATESSEN INC. and JACOB LEBEWOHL, in his official
13        capacity as Owner and General Manager of the 2nd Avenue
14                          Delicatessen Inc.,

15                              Defendants-Appellees.

16         ------------------------------------------------------

17   Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge.*

18         Plaintiffs-appellants, who sued alleging age discrimination

19   and retaliation by defendants-appellees in violation of Federal,

20   New York State, and New York City laws, appeal the judgment of

21   the United States District Court for the Southern District of New

22   York (George B. Daniels, Judge) granting defendants’ motion under


     * The Honorable Timothy C. Stanceu, United States Court of
     International Trade, sitting by designation.
 1   Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs’

 2   complaint for failure to state a claim upon which relief can be

 3   granted and denying as futile plaintiffs’ cross-motion to amend

 4   that complaint.

 5        AFFIRMED IN PART and VACATED AND REMANDED IN PART.

 6                                 Lee Nuwesra (Jerald Abrams, on the
 7                                 brief), Law Office of Lee Nuwesra,
 8                                 New York, New York, for Plaintiffs-
 9                                 Appellants.

10                                 Kenneth Kirschner (Michael E.
11                                 DeLarco, on the brief), Heller
12                                 Ehrman LLP, New York, New York, for
13                                 Defendants-Appellees.


14   STANCEU, Judge:

15        Plaintiffs-appellants Diane Kassner and Marsha Reiffe

16   brought an action in the United States District Court for the

17   Southern District of New York in September 2004, alleging age

18   discrimination on the basis of adverse employment actions and

19   retaliation in violation of the Age Discrimination in Employment

20   Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq., the

21   New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296

22   et seq., and the New York City Human Rights Law (“NYCHRL”),

23   N.Y.C. Admin. Code § 8-101 et seq.   They appeal from the district

24   court’s judgment in favor of defendants-appellees 2nd Avenue

25   Delicatessen Inc. and its owner and general manager, Jacob

26   Lebewohl, entered on July 8, 2005.

27        The district court (George B. Daniels, Judge) granted

28   defendants’ motion to dismiss the complaint for failure to state

                                     2
 1   a claim upon which relief can be granted and denied as futile

 2   plaintiffs’ cross-motion to amend the complaint.   The district

 3   court ruled that all of Kassner’s claims were time-barred under

 4   applicable statutes of limitations, that most of Reiffe’s claims

 5   also were time-barred, and that Reiffe’s remaining claims either

 6   did not amount to an adverse employment action or were supported

 7   by insufficient factual allegations from which the court could

 8   infer age discrimination.   The district court concluded, further,

 9   that allowing plaintiffs to amend the complaint would be futile

10   because plaintiffs’ proposed amended complaint alleged few new

11   facts and because, in restating the same alleged acts by

12   defendants without the references to specific dates that appeared

13   in the complaint as filed, the proposed amended complaint could

14   hide, but not cure, any timeliness deficiencies.

15        We conclude that certain of plaintiffs’ claims were

16   supported by factual allegations sufficient to withstand a motion

17   to dismiss for failure to state a claim upon which relief can be

18   granted.   We further conclude that the district court erred in

19   denying the motion to amend the complaint on the ground of

20   futility and direct that the district court, on remand, exercise

21   its discretion under Federal Rule of Civil Procedure 16(b) to

22   determine whether the proposed amendment or different amendments

23   to the complaint should be allowed.   For these reasons, we vacate

24   the judgment dismissing the action and remand the matter to the

25   district court for further proceedings in accordance with this

26   Opinion.

                                      3
 1                             I.    BACKGROUND

 2        When they commenced their action in district court in 2004,

 3   plaintiffs Kassner and Reiffe were 79 and 61 years of age,

 4   respectively, and were employed as waitresses in a restaurant

 5   operated by defendant 2nd Avenue Delicatessen Inc.      Kassner had

 6   worked for 2nd Avenue Delicatessen Inc. since 1986; Reiffe began

 7   her employment there in 1974.    On November 26, 2002 and

 8   December 20, 2002, prior to bringing this action, Reiffe and

 9   Kassner, respectively, filed claims of age discrimination with

10   the Equal Employment Opportunity Commission (“EEOC”) against 2nd

11   Avenue Delicatessen Inc. and Jacob Lebewohl.      See Br. for Defs.-

12   Appellees 5.   The EEOC issued each plaintiff a right-to-sue form

13   letter dated June 18, 2004.     Id. at 6.

14        Plaintiffs filed their complaint in the United States

15   District Court for the Southern District of New York on

16   September 13, 2004, alleging that defendants violated the ADEA,

17   the NYSHRL, and the NYCHRL by discriminating against plaintiffs

18   on account of age and by retaliating against plaintiffs for

19   complaining about age discrimination and for bringing charges

20   alleging age discrimination.    The complaint contains various

21   allegations to the effect that defendants discriminated against

22   plaintiffs by assigning them to work shifts and work stations at

23   which earnings were less than those to which younger waitresses

24   were assigned.   Compl. ¶¶ 12-13, 21-23.     The complaint alleged

25   that defendant Lebewohl and several of his subordinates


                                        4
 1   repeatedly made degrading comments about Kassner, “including, but

 2   not limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of

 3   that make-up[,]’ and ‘take off your wig.’”    Id. ¶ 14.    The

 4   complaint further alleged that defendants retaliated against

 5   Reiffe by changing her work shift and work station.       Id.

 6   ¶¶ 20-23.   In addition, the complaint claimed that defendant

 7   Lebewohl pressured plaintiffs to retire and pointed to the front

 8   of the restaurant and said “there’s the door” when they

 9   complained about their disparate treatment.    Id. ¶¶ 44-45, 50-51,

10   56-57 (emphasis omitted).   Plaintiffs sought injunctive relief,

11   lost earnings, compensatory and punitive damages, and an award

12   for attorneys’ fees.   Id. ¶ 2, PRAYER FOR RELIEF.

13        On September 22, 2004, nine days after plaintiffs filed the

14   complaint, the district court entered a Civil Case Management

15   Plan and Scheduling Order, pursuant to Rules 16 and 26(f) of the

16   Federal Rules of Civil Procedure.    The Case Management Plan and

17   Scheduling Order limited the time for amendment of the pleadings,

18   requiring any amendments to the pleadings to be made by

19   February 1, 2005.

20        Defendants did not file or serve an answer to the complaint

21   but instead, on October 12, 2004, moved to dismiss under Federal

22   Rule of Civil Procedure 12(b)(6) for failure to state a claim

23   upon which relief can be granted.    During approximately the next

24   four months, plaintiffs sought and were granted extensions of

25   time in which to respond to the motion to dismiss, to engage in

26   settlement discussions with defendants, and to obtain new

                                      5
 1   counsel.    On March 4, 2005, plaintiffs, through their new

 2   counsel, timely filed their opposition to the motion to dismiss

 3   and moved to amend their complaint.

 4        In a judgment entered on July 8, 2005, the district court

 5   granted defendants’ motion to dismiss the complaint for failure

 6   to state a claim upon which relief can be granted and denied

 7   plaintiffs’ cross-motion to amend the complaint.    In its

 8   Memorandum Decision and Order, dated July 5, 2005, the district

 9   court concluded that plaintiffs’ ADEA claims were time-barred to

10   the extent they were based on discrete acts that occurred before

11   February 23, 2002 because the ADEA requires filing of an

12   administrative complaint with the EEOC within 300 days after the

13   alleged unlawful employment practice.    Mem. Dec. & Order at 3;

14   see 29 U.S.C. § 626(d) (2000).    The district court also found

15   plaintiffs’ NYSHRL and NYCHRL claims to be time-barred by the

16   applicable three-year statutes of limitations to the extent they

17   were based on discrete acts occurring before September 13, 2001.

18   See Mem. Dec. & Order at 3-4.    The district court concluded that

19   all of Kassner’s claims were time-barred because they were based

20   on alleged discrete acts occurring in 1999.    Id. at 4.     Moreover,

21   the district court ruled that the only allegations by Reiffe of

22   discriminatory acts that were not time-barred “either do not

23   amount to an adverse employment action or are insufficient

24   factual allegations to infer that those actions were based upon

25   her age.”    Id. at 4-5.




                                       6
 1        In denying plaintiffs’ cross-motion to amend the complaint,

 2   the district court noted that the proposed amended complaint

 3   “adds few new factual allegations” and “simply drops any

 4   reference to applicable dates in an attempt to vaguely and

 5   generally refer to events without any time reference.”       Id. at 6.

 6   The district court concluded that “[s]uch a proposed amendment

 7   may hide, but cannot cure, any time-barred deficiencies.      It

 8   therefore would be futile.”      Id.

 9        Plaintiffs-appellants subsequently brought this appeal and,

10   in connection therewith, request legal fees and costs.

11                              II.    DISCUSSION

12         A. The District Court Erred in Granting Defendants’
13     Rule 12(b)(6) Motion to Dismiss the Complaint in the Entirety

14        We review de novo the district court’s grant of a motion to

15   dismiss.   Dougherty v. Town of N. Hempstead Bd. of Zoning

16   Appeals, 282 F.3d 83, 87 (2d Cir. 2002).       In considering a motion

17   to dismiss for failure to state a claim upon which relief can be

18   granted, the court is to accept as true all facts alleged in the

19   complaint.   Id.   The court is to draw all reasonable inferences

20   in favor of the plaintiff.       Fernandez v. Chertoff, 471 F.3d 45,

21   51 (2d Cir. 2006); see also Leibowitz v. Cornell Univ., 445 F.3d

22   586, 591-92 (2d Cir. 2006).      The Supreme Court has held that,

23   under the notice system of pleading established by the Federal

24   Rules of Civil Procedure, “an employment discrimination plaintiff

25   need not plead a prima facie case of discrimination.”

26   Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).       Under


                                         7
 1   Rule 8(a)(2), the pleading requirement is satisfied by “a short

 2   and plain statement of the claim showing that the pleader is

 3   entitled to relief.”   Fed. R. Civ. P. 8(a)(2).   “Such a statement

 4   must simply ‘give the defendant fair notice of what the

 5   plaintiff’s claim is and the grounds upon which it rests.’”

 6   Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S.

 7   41, 47 (1957)); Leibowitz, 445 F.3d at 591.   The Supreme Court

 8   has rejected the argument that allowing lawsuits based on

 9   conclusory allegations of discrimination would encourage

10   disgruntled employees to sue and thereby overburden the courts.

11   “Whatever the practical merits of this argument, the Federal

12   Rules do not contain a heightened pleading standard for

13   employment discrimination suits.”    Swierkiewicz, 534 U.S.

14   at 514-15.   Therefore, in considering such a motion to dismiss,

15   "[t]he appropriate inquiry is not whether a plaintiff is likely

16   to prevail, but whether he is entitled to offer evidence to

17   support his claims."   Fernandez, 471 F.3d at 51 (internal

18   quotation marks and citation omitted).

19        In reviewing the complaint and thereby dismissing

20   plaintiffs’ age discrimination claims, the district court

21   considered many discrete acts to be time-barred.   A plaintiff

22   seeking to recover under the ADEA must file a discrimination

23   charge with a state agency within 300 days of the occurrence of

24   the allegedly unlawful employment practice.    See 29 U.S.C.

25   § 626(d)(2).   The district court concluded that plaintiffs’ ADEA

26   claims were time-barred to the extent they were based on discrete


                                      8
 1   acts that occurred before February 23, 2002, based on a filing

 2   date of December 20, 2002 for the administrative EEOC

 3   complaints.1   Mem. Dec. & Order at 3.   Because claims under the

 4   NYSHRL and the NYCHRL are time-barred unless filed within three

 5   years of the alleged discriminatory acts, the district court also

 6   ruled that such claims are time-barred to the extent they were

 7   based on discrete acts occurring before September 13, 2001.    Id.

 8   at 3-4; see N.Y. Exec. Law § 296; N.Y. C.P.L.R. § 214(2)

 9   (McKinney 2003); N.Y.C. Admin. Code § 8-502(d).

10        A prima facie case of age discrimination requires that

11   plaintiffs demonstrate membership in a protected class,

12   qualification for their position, an adverse employment action,

13   and circumstances that support an inference of age

14   discrimination.   Galabya v. New York City Bd. of Educ., 202 F.3d

15   636, 639 (2d Cir. 2000).   “A plaintiff sustains an adverse

16   employment action if he or she endures a ‘materially adverse

17   change’ in the terms and conditions of employment.    To be

18   ‘materially adverse’ a change in working conditions must be ‘more

19   disruptive than a mere inconvenience or an alteration of job

20   responsibilities.’”   Id. at 640 (quoting Crady v. Liberty Nat'l

21   Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)) (citation



          1
           The complaint alleges that both plaintiffs filed their
     EEOC complaints “on or about December 20, 2002.” Compl. ¶ 3.
     According to the copies of the EEOC complaints in the record,
     Kassner’s EEOC charge was filed on that date, but Reiffe’s EEOC
     charge actually was filed 24 days earlier, on November 26, 2002.
     Accordingly, Reiffe’s ADEA claims are time-barred if based on
     discrete acts occurring before January 30, 2002.

                                      9
 1   omitted).   A change that is “materially adverse” could consist

 2   of, inter alia, “a demotion evidenced by a decrease in wage or

 3   salary, a less distinguished title, a material loss of benefits,

 4   significantly diminished material responsibilities, or other

 5   indices . . . unique to a particular situation.”    Id. (omission

 6   in original) (internal quotation marks and citation omitted).     At

 7   this stage of litigation, plaintiffs need not plead a prima facie

 8   case and may withstand a motion to dismiss by meeting a lesser

 9   standard.   Plaintiffs need only comply with Rule 8(a)(2) by

10   providing a short and plain statement of the claim that shows

11   that plaintiffs are entitled to relief and that gives the

12   defendants fair notice of plaintiffs’ claims of age

13   discrimination and the grounds upon which those claims rest.      See

14   Swierkiewicz, 534 U.S. at 512.

15        We agree with the district court that certain acts alleged

16   in the complaint do not plead causes of action that were timely

17   under the applicable statutes of limitations.   Nevertheless, the

18   complaint contains other allegations that, when construed

19   together to draw all reasonable inferences in favor of

20   plaintiffs, state valid causes of action under the ADEA, the

21   NYSHRL, and the NYCHRL.   As to the discrete acts for which the

22   district court considered claims to be timely, the district court

23   observed that “[p]laintiffs primarily complain of a number of

24   shift or work station changes that reduced their potential for

25   tip income.”   Mem. Dec. & Order at 5.   With respect to such



                                      10
 1   “shift or work station changes,” the district court concluded

 2   that “none of the acts complained of by plaintiffs rise to the

 3   level of a material adverse employment action.”     Id.     We decline

 4   to hold that a waiter or waitress repeatedly assigned to less

 5   desirable work stations and work shifts than younger wait-staff

 6   can never, under any proven set of facts, obtain a remedy for age

 7   discrimination in employment.

 8        We now turn to the allegations in the complaint relevant to

 9   each plaintiff’s claim of age discrimination based on changes in

10   work stations and work shifts.     Kassner alleged in the complaint

11   that “[i]n 1999, Defendant, Lebewohl, permanently assigned

12   Ms. Kassner to work station six, located by the toilet and

13   kitchen” and that “[c]ustomers do not sit at station six because

14   of its location.”   Compl. ¶ 12.    This allegation of a permanent

15   assignment to an undesirable work station is time-barred under

16   the ADEA, the NYSHRL, and the NYCHRL.     “A discrete retaliatory or

17   discriminatory act occurred on the day that it happened.”        Nat’l

18   R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)

19   (internal quotation marks omitted).     As we have stated

20   previously, a completed act such as a discontinuance of a

21   particular job assignment is not of a continuing nature.

22   Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.

23   1997).   The district court was correct in dismissing any claim

24   arising from this factual allegation.     The complaint also alleges


                                        11
 1   that “[i]n 1999, Lebewohl also refused to assign Ms. Kassner any

 2   weekend shifts.     However, younger waitresses are rotated amongst

 3   the better stations and assigned to weekend shifts, which is when

 4   the most money is made.”     Compl. ¶ 13.   Because this allegation

 5   also is pleaded as having occurred in 1999, it too is time-barred

 6   under the ADEA, the NYSHRL, and the NYCHRL.      We conclude,

 7   therefore, that the district court correctly ruled that Kassner

 8   had made no timely allegations of employment-related age

 9   discrimination based on changes in work stations and work shifts.

10        We conclude, as did the district court, that not all of the

11   allegations of changes in work stations and work shifts affecting

12   Reiffe are untimely.     The complaint alleges that in 1999

13   defendant Lebewohl discriminated against Reiffe by making a

14   change in Reiffe’s schedule that removed her from a Sunday shift.

15   Id. ¶ 17.    In referring to a discrete act occurring in 1999, this

16   allegation is time-barred under the ADEA, the NYSHRL, and the

17   NYCHRL.     Another allegation in the complaint is of a

18   discriminatory assignment, for four consecutive days in January

19   2002, to the counter station, which the complaint alleges to be

20   the least profitable station and to which only new workers

21   allegedly are usually assigned.     Id. ¶ 21.   This alleged

22   assignment is one for which relief is not time-barred under the

23   NYSHRL and the NYCHRL.     On the face of the complaint, it is not

24   possible to determine whether relief would be time-barred under

25   the ADEA; the allegation would be timely under the ADEA if Reiffe


                                       12
 1   were able to show that the assignment was made on or after

 2   January 30, 2002.    The complaint also includes the allegation

 3   that Lebewohl, in September 2002, discriminated against Reiffe by

 4   changing Reiffe’s station and her hours on Saturdays such that

 5   she was removed from the early dinner shift.      Id. ¶ 22.   It

 6   further alleges that in September 2002 her hours on Tuesdays,

 7   which were 11:00 a.m. until 3:45 p.m., were changed to 12:00 p.m.

 8   until 3:00 p.m.     Id. ¶ 23.   These allegations of acts occurring

 9   in September 2002 do not refer to acts for which relief is barred

10   under the various statutes of limitations.

11        Viewed absent the time-barred allegations, Reiffe’s claims

12   that defendants discriminated against her in her station and

13   shift assignments are based on an allegation that she was

14   assigned in January 2002 to the least desirable station, the

15   counter, for four consecutive days and an allegation that her

16   Tuesday and Saturday station and shift assignments were changed

17   in September 2002.    The complaint fails to allege specifically

18   that the September 2002 station and shift assignments were less

19   favorable than those to which Reiffe previously was assigned.

20   However, in the context of the complaint as a whole we are able

21   to draw an inference in favor of Reiffe that the new station and

22   shift assignments were less desirable than the previous ones and

23   less desirable than those to which younger workers were assigned.

24   We also may infer from the language of the complaint that the

25   changes continued after September 2002.     Reiffe’s timely claims

                                        13
 1   relating to changes in shifts are limited to an allegation that

 2   in September 2002 her hours were reduced on Tuesdays and also on

 3   Saturdays, when she was removed from the early dinner shift.    The

 4   significance of the reduction in hours on Tuesdays is not

 5   apparent from the face of the complaint; whether this alleged

 6   action was adverse is a matter of speculation.   See Bell Atlantic

 7   Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (“Factual

 8   allegations must be enough to raise a right to relief above the

 9   speculative level.”).   We may infer the significance of the

10   change in the Saturday hours based on the allegation in the

11   complaint that the weekend shifts were the most lucrative shifts.

12   Compl. ¶ 13.   We also may infer that the change in Reiffe’s

13   Saturday hours continued after September 2002.

14        The district court concluded that the timely claims on

15   behalf of Reiffe “either do not amount to an adverse employment

16   action or are insufficient factual allegations to infer that

17   those actions were based upon her age.”   Mem. Dec. & Order at 5.

18   The timely allegations made on behalf of Reiffe are limited in

19   scope and therefore might be construed as insufficient to

20   constitute a “materially adverse change” in the terms and

21   conditions of employment, see Galabya, 202 F.3d at 640, were we

22   not required to draw all reasonable inferences on behalf of the

23   plaintiff.   The inferences in favor of Reiffe that we discussed

24   previously cause us to conclude that Reiffe’s claims of age

25   discrimination based on certain changes in work station and work

26   shift assignments, although limited, are sufficient to withstand


                                     14
 1   a motion to dismiss under the standard articulated in

 2   Swierkiewicz, 534 U.S. at 512.   We conclude, therefore, that the

 3   district court should have allowed Reiffe to proceed on claims

 4   that certain alterations made to her work station and work

 5   schedule in January 2002 and September 2002, i.e., those for

 6   which relief is not time-barred, constituted employment-related

 7   age discrimination.

 8        We next consider the issue of discrimination based on a

 9   hostile work environment.   Although the complaint does not

10   explicitly allege discrimination based on a hostile work

11   environment, the complaint alleges “continued harassment” of

12   Kassner and alleges facts from which we may infer pleading of

13   hostile work environment claims as to her; the complaint states

14   that “Lebewohl and several of his subordinates have repeatedly

15   made degrading comments towards Ms. Kassner, including, but not

16   limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of that

17   make-up[,]’ and ‘take off your wig.’”   Compl. ¶¶ 14-15.   An

18   actionable discrimination claim based on hostile work environment

19   under the ADEA is one for which “the workplace is ‘permeated with

20   discriminatory intimidation, ridicule, and insult that is

21   sufficiently pervasive to alter the conditions of the victim’s

22   employment. . . .’”   Brennan v. Metro. Opera Ass’n, 192 F.3d 310,

23   318 (2d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510


                                      15
 1   U.S. 17, 21 (1993)) (omission in original).      The determination of

 2   hostility depends on whether a reasonable person would find the

 3   work environment to be hostile and whether plaintiffs

 4   subjectively perceived it to be so.      Id.   Minor incidents do not

 5   merit relief.    Id.    Plaintiffs need not present a list of

 6   specific acts.    Id.    To establish a hostile work environment,

 7   plaintiffs must “prove that the incidents were sufficiently

 8   continuous and concerted to be considered pervasive.”        Id.

 9   (internal quotation marks and citation omitted).       “A plaintiff

10   must also demonstrate that she was subjected to the hostility

11   because of her membership in a protected class.”       Id.   At the

12   pleading stage of the case, however, plaintiffs need not plead a

13   prima facie case of discrimination based on hostile work

14   environment, so long as they provide in the complaint a short and

15   plain statement of the claim that shows that plaintiffs are

16   entitled to relief and that gives the defendant fair notice of

17   plaintiffs’ claim for hostile work environment and the grounds

18   upon which that claim rests.      See Swierkiewicz, 534 U.S. at 512.

19   As to Kassner, the allegation of a hostile work environment is

20   sufficient for this purpose and thus entitles Kassner to proceed

21   to discovery and put on evidence in support of her hostile work

22   environment claims.     To prevail, Kassner will have to persuade

23   the factfinder that, inter alia, the comments the complaint




                                        16
 1   attributes to Lebewohl and subordinates actually were age-related.

 2        As to Reiffe, however, we consider the factual allegations

 3   in the complaint to be insufficient to state a claim of hostile

 4   work environment.    The complaint alleges that defendants

 5   “pressur[ed] plaintiffs to retire from employment.”    See Compl.

 6   ¶¶ 45, 51, 57.   This allegation, even when aided by inferences in

 7   favor of Reiffe, is so vague that it fails to provide defendants

 8   with fair notice of the factual grounds supporting an implied

 9   claim that Reiffe was subjected to a hostile work environment.

10   The complaint alleges no specific facts as to what was done to

11   pressure Reiffe to retire.    The complaint does contain an

12   allegation, which was timely under the NYSHRL and the NYCHRL but

13   not under the ADEA, that the manager of 2nd Avenue Delicatessen

14   Inc., in December 2001, suspended Reiffe without pay for an

15   incident without conducting a proper investigation and, when

16   Reiffe objected to the suspension, threatened to subject Reiffe

17   to arrest if she appeared in the restaurant.    Id. ¶ 18.     The

18   complaint, however, fails to allege any facts about the

19   circumstances surrounding the suspension and the incident that

20   gave rise to it.    The allegations made on behalf of Reiffe, if

21   assumed to be true, would not be sufficient to justify a

22   conclusion that Reiffe is entitled to a remedy based on a hostile

23   work environment claim.


                                      17
 1        We turn next to the pleading of plaintiffs’ retaliation

 2   claims.    The ADEA prohibits an employer from discriminating

 3   against an individual employee because of the individual’s

 4   opposing any practice made unlawful under the statute.     29 U.S.C.

 5   § 623(d).2   Plaintiffs allege that they complained to defendants

 6   about their disparate treatment and that defendant Lebewohl did

 7   not act to remedy the situation but instead pointed to the front

 8   of the restaurant and stated “There’s the door!”    Compl. ¶¶ 44,

 9   50, 56.    The complaint alleges vaguely that defendants

10   discriminated against plaintiffs because they opposed acts

11   unlawful under the ADEA, made charges, and participated in

12   proceedings in support of their ADEA rights.    Id. ¶¶ 42-43,

13   48-49, 54-55.    Notably, the complaint fails to identify any

14   specific acts by defendants against Kassner that are alleged to

15   have been taken in retaliation for Kassner’s complaints or for

16   her filing of discrimination charges with the EEOC in December

17   2002.    We conclude, therefore, that the complaint fails to state

18   a retaliation claim on behalf of Kassner under the ADEA, the

19   NYSHRL, or the NYCHRL.

20        We reach the opposite conclusion with respect to certain

21   retaliation claims made on behalf of Reiffe.    The complaint


          2
            The NYSHRL and the NYCHRL contain similar provisions that
     describe retaliation as an unlawful discriminatory practice. See
     N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7).

                                      18
 1   alleges that retaliatory assignments to work stations and work

 2   shifts began after Reiffe requested that her union file a

 3   grievance on her behalf for the incident in December 2001 when

 4   Reiffe was suspended without pay.      Id. ¶¶ 18-20.   The complaint

 5   asserts retaliation claims based on the same alleged changes to

 6   Reiffe’s work station and work shifts on which it bases its

 7   claims of discriminatory assignments, i.e., the changes in

 8   Reiffe’s work station and work shifts in January 2002 and

 9   September 2002.   Id. ¶¶ 21-23.   As we discussed above, the timely

10   claims of age discrimination based on alleged changes to Reiffe’s

11   work station and work shift assignments are sufficient to

12   withstand a motion to dismiss under the standard articulated in

13   Swierkiewicz, 534 U.S. at 512.    Whether those alleged changes to

14   work stations and work shifts constitute discrimination,

15   retaliation, or both is to be determined as the litigation

16   progresses.   We therefore conclude that the district court erred

17   in dismissing all of Reiffe’s claims of retaliation.

18        In summary, we conclude with respect to Kassner that the

19   district court properly dismissed the claims of alleged

20   discriminatory assignments to work stations and work shifts,

21   erred in dismissing an implied claim of hostile work environment,

22   and properly dismissed all claims of retaliation.      We conclude

23   with respect to Reiffe that the district court properly dismissed

24   certain untimely claims of alleged discriminatory assignments to

25   work stations and work shifts but erred in dismissing other such


                                       19
 1   claims that were based on acts alleged to have occurred in

 2   January and September of 2002, properly dismissed any implied

 3   claim of hostile work environment, and erred in dismissing claims

 4   of retaliation based on acts that were alleged to have occurred

 5   in January and September of 2002 for which relief was not time-

 6   barred.

 7    B.   The District Court Erred In Denying the Motion to Amend the
 8                   Complaint on the Ground of Futility

 9         We turn next to the district court’s denial of plaintiffs’

10   cross-motion to amend their complaint, which we review for abuse

11   of discretion.   Dougherty, 282 F.3d at 87; see Parker v. Columbia

12   Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000).     In doing

13   so, we review de novo any conclusions of law.     Dougherty, 282

14   F.3d at 87.   Upon de novo review, we conclude that the district

15   court erred in ruling that the proposed amendment to the

16   complaint would have been futile.

17         Rule 15(a) of the Federal Rules of Civil Procedure provides

18   in the first sentence that “[a] party may amend the party’s

19   pleading once as a matter of course at any time before a

20   responsive pleading is served . . . .”     Fed. R. Civ. P. 15(a).

21   The second sentence of Rule 15(a) provides that “[o]therwise a

22   party may amend the party’s pleading only by leave of court or by

23   written consent of the adverse party; and leave shall be freely

24   given when justice so requires.”     Id.

25         At the time that plaintiffs moved to amend their complaint,

26   defendants had not filed an answer.    Defendants’ motion to


                                     20
 1   dismiss, because it was a motion, not a pleading, was not a

 2   “responsive pleading” within the meaning of Rule 15(a).       See

 3   Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir.

 4   1996).    The threshold question, therefore, is whether the

 5   district court was required to accept the proposed amended

 6   complaint because the plaintiffs were allowed by the first

 7   sentence of Rule 15(a) to amend the complaint as a matter of

 8   course.   We conclude that the district court, because of the

 9   effect of Rule 16(b), was not so required.

10        Although Rule 15(a) governs the amendment of pleadings,

11   Rule 16(b) also may limit the ability of a party to amend a

12   pleading if the deadline specified in the scheduling order for

13   amendment of the pleadings has passed.    See Fed. R. Civ.

14   P. 16(b).    Under Rule 16(b), a party may obtain a modification of

15   the scheduling order only “upon a showing of good cause.”       Id.

16   The record in this case shows that plaintiffs filed their cross-

17   motion to amend the complaint on March 4, 2005, more than one

18   month after February 1, 2005, the date specified in the

19   Rule 16(b) scheduling order as the final date for amendment of

20   the pleadings.

21        In Parker, we addressed the relationship between the

22   standard imposed by the second sentence of Rule 15(a), i.e., the

23   “freely given when justice so requires” standard, and the “good

24   cause” standard of Rule 16(b).    204 F.3d at 339-40.   We held in

25   Parker that a district court, despite the standard of the second

26   sentence of Rule 15(a), does not abuse its discretion in denying

                                      21
 1   leave to amend the pleadings where the moving party has failed to

 2   establish good cause, as required by Rule 16(b), to amend the

 3   pleadings after the deadline set in the scheduling order.      Id.

 4   We stated with respect to the Rule 16(b) standard, “‘good cause’

 5   depends on the diligence of the moving party.”    Id. at 340

 6   (quoting Fed. R. Civ. P. 16(b)).

 7        However, we have not previously decided whether a party’s

 8   right to amend a pleading once “as a matter of course,” as

 9   provided in the first sentence of Rule 15(a), may be qualified by

10   the trial court’s general discretion to limit, by means of a

11   scheduling order entered under Rule 16(b), the time during which

12   the pleadings may be amended.   Because the first sentence of

13   Rule 15(a) allows a party to amend a pleading “once as a matter

14   of course at any time before a responsive pleading is served,” it

15   may be argued that the rule creates a right to amend pleadings

16   that is not qualified by the district court’s discretion to

17   impose time restrictions under Rule 16.    Fed. R. Civ.

18   P. 15(a)(emphasis added).   As we discussed in Parker, Rule 16(b)

19   expressly provides that a scheduling order is to limit the time

20   for amendment of the pleadings and, in so doing, “is designed to

21   offer a measure of certainty in pretrial proceedings”; we cited

22   therein the advisory committee notes to the 1983 amendment to

23   Rule 16, which discussed subsection (b).    Parker, 204 F.3d at

24   339-40.   Although the Rule 16(b) scheduling order, in the

25   district court’s discretion, may impose various time limits for


                                     22
 1   pre-trial proceedings (including time limits on “any other

 2   matters appropriate in the circumstances of the case”), amendment

 3   of the pleadings is one of four time limits that the trial court

 4   generally must include in a Rule 16(b) scheduling order.     Fed. R.

 5   Civ. P. 16(b).   The advisory committee notes provide that

 6   “[i]tem (1) assures that at some point both the parties and the

 7   pleadings will be fixed, by setting a time within which joinder

 8   of parties shall be completed and the pleadings amended.”    Fed.

 9   R. Civ. P. 16 Advisory Committee Notes, 1983 Amendment

10   (discussing subsection (b)).   This objective would be frustrated

11   by an interpretation of the first sentence of Rule 15(a) that

12   precludes a district court from exercising any discretion to

13   specify the time period during which a party may effect the first

14   amendment of its complaint prior to the serving of a responsive

15   pleading.   Rule 16(b), in allowing modifications of scheduling

16   orders only for good cause, provides the district courts

17   discretion to ensure that limits on time to amend pleadings do

18   not result in prejudice or hardship to either side.   For these

19   reasons, we hold that amendment of a pleading as a matter of

20   course pursuant to Rule 15(a) is subject to the district court’s

21   discretion to limit the time for amendment of the pleadings in a

22   scheduling order issued under Rule 16(b).

23        In denying the motion to amend the complaint, the district

24   court relied on the second sentence of Rule 15(a), stating that

25   “[l]eave to amend should be freely given when justice dictates,”

26   and then, concluding that the proposed amended complaint did not


                                     23
 1   plead facts sufficient to overcome a motion to dismiss, denied

 2   that motion on the ground of futility.    Mem. Dec. & Order at 5-6;

 3   see Fed. R. Civ. P. 15(a).    Because the complaint, for the

 4   reasons discussed previously, is, with respect to some claims,

 5   sufficient to withstand a motion to dismiss under Rule 12(b)(6),

 6   the district court’s futility analysis rested on an incorrect

 7   conclusion of law.

 8        Moreover, the proposed amended complaint would be sufficient

 9   as to some claims.    We note, for example, that the proposed

10   amended complaint, if accepted, would cure the defective pleading

11   of implied hostile work environment claims pertaining to Reiffe.

12   The proposed amended complaint alleges, inter alia, that

13   defendants began a pattern of harassment constituting a hostile

14   work environment when defendant Lebewohl became the day-to-day

15   manager of 2nd Avenue Delicatessen Inc.    Am. Compl. ¶¶ 24, 37.

16   The proposed amended complaint further alleges that defendant

17   Lebewohl aided and encouraged other employees of 2nd Avenue

18   Delicatessen Inc. to harass and degrade Reiffe, as well as

19   Kassner, because of their age in an attempt to force them to

20   quit.   Id. ¶ 35.   The proposed amended complaint provides

21   additional details on the alleged December 2001 suspension

22   incident (which was not time-barred under the NYSHRL and the

23   NYCHRL), see id. ¶ 52, and alleges that 2nd Avenue Delicatessen

24   Inc.’s “employees/agent repeatedly and continually verbally and

25   physically abused” Reiffe, giving as an example that Reiffe “has

26   been spit on and kicked at by Defendant Deli’s employee/agents.”


                                      24
 1   Id. ¶ 38.    The proposed amended complaint states that the

 2   employee/agent who allegedly spit on and kicked Reiffe was a co-

 3   worker “acting under the direction of management in contributing

 4   to the hostile work environment against Ms. Reiffe.”    Id. ¶¶ 52,

 5   53.   It further alleges that this co-worker was not disciplined

 6   for the kicking and spitting incident, and that instead, it was

 7   Reiffe who was suspended and then told by the manager of 2nd

 8   Avenue Delicatessen Inc., in response to Reiffe’s complaint about

 9   the suspension, that “[i]f you don’t like it, you can quit.       Why

10   don’t you quit already.”    Id. ¶ 53.

11         On remand, the district court must exercise its discretion

12   under Rule 16(b) to determine whether the scheduling order should

13   be modified so as to allow an amended complaint.    According to

14   the principles we discussed in Parker, 204 F.3d at 339-40, the

15   primary consideration is whether the moving party can demonstrate

16   diligence.    It is not, however, the only consideration.   The

17   district court, in the exercise of its discretion under

18   Rule 16(b), also may consider other relevant factors including,

19   in particular, whether allowing the amendment of the pleading at

20   this stage of the litigation will prejudice defendants.     In this

21   regard, we note that counsel for plaintiffs, at the district

22   court’s hearing on the motion to dismiss and the cross-motion to

23   amend the complaint, offered to submit a different amended

24   complaint in the event the court considered the submitted

25   proposed amended complaint inadequate.    See Mot. Hr’g Tr. 42-43,

26   June 29, 2005.    The district court did not explicitly address


                                      25
 1   counsel’s offer.   The district court, as an exercise of its broad

 2   discretion concerning the pleadings, may consider whether to

 3   allow the already-submitted proposed amended complaint or allow

 4   submission of another one.

 5                            III.   CONCLUSION

 6        For the reasons stated, we conclude that the district court

 7   properly dismissed Kassner’s claims of alleged discriminatory

 8   assignments, erred in dismissing her implied claims of hostile

 9   work environment, and properly dismissed her claims of

10   retaliation.   With respect to Reiffe, we conclude that the

11   district court properly dismissed the untimely claims of alleged

12   discriminatory assignments but erred in dismissing other such

13   claims that were timely, properly dismissed any implied claim of

14   hostile work environment, and erred in dismissing those of her

15   claims of retaliation for which relief was not time-barred.     We

16   further conclude that the district court erred in not considering

17   whether plaintiffs had demonstrated good cause to amend the

18   complaint after the expiration of the deadline in the scheduling

19   order.   Finally, we decline to award costs or attorneys’ fees to

20   plaintiffs-appellants.   The litigation before the district court

21   has not progressed beyond the pleadings stage, and plaintiffs-

22   appellants have yet to prevail upon any of their claims.   An

23   award on plaintiffs-appellants’ application therefore would be

24   premature.

25        The district court’s judgment granting defendants’ motion to

26   dismiss the complaint and denying plaintiffs’ cross-motion to

                                      26
1   amend the complaint is therefore AFFIRMED IN PART and VACATED IN

2   PART, and this matter is REMANDED to the district court for

3   further proceedings in accordance with this Opinion.




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