13-3762-cv
Garay v. Novartis Pharmaceuticals Corp.


                                   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 19th
day of August, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
            DEBRA ANN LIVINGSTON,
                          Circuit Judges.
_____________________________________

JAMIE GARAY,

                    Plaintiff-Appellant,

                              v.                                    No. 13-3762-cv

NOVARTIS PHARMACEUTICALS CORPORATION,
RICHARD SCATONI, WILLIAM SHAUN RILEY,
IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES,

            Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                             Jamie Garay, pro se, Stony Brook, NY.

FOR DEFENDANTS-APPELLEES:                            Edward Cerasia II, Aaron Warshaw, Cerasia
                                                     & Del Rey-Cone LLP, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joanna Seybert, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part,
VACATED in part, and REMANDED for further proceedings.

          Plaintiff Jamie Garay, proceeding pro se, appeals from the District Court’s September 5, 2013
judgment, granting defendants’ motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c), and dismissing with prejudice Garay’s complaint alleging age discrimination
and retaliation, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621
et seq., and the New York Human Rights Law, N.Y. Exec. Law § 296. 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 grant of judgment on the pleadings pursuant to Rule
12(c). Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). In order to survive a motion for
judgment on the pleadings, a complaint “must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905,
922 (2d Cir. 2010) (internal quotation marks omitted). We must draw all reasonable inferences in
favor of the plaintiff. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam) (stating that a Rule
12(c) dismissal is reviewed under the same standard as a Rule 12(b)(6) dismissal).

         After an independent review of the record and relevant case law, we conclude that the
District Court properly dismissed Garay’s complaint, largely for the reasons stated in its September
3, 2013 order. Namely, Garay failed to sufficiently plead a discrimination claim because she did not
allege that she had suffered an adverse employment action, and she failed to establish a retaliation
claim because the alleged protected activities either were unrelated to her age or had occurred after
the alleged retaliatory act.

        While the District Court’s ruling was otherwise sound, it erred in denying Garay leave to
amend her complaint on futility grounds. As a general rule, “leave to amend should be freely given,
and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that
[s]he has a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal quotation marks and
citation omitted). We have thus held that “[a] pro se complaint should not be dismissed without the
Court granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal
quotation marks omitted). “An amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to [Rule] 12(b)(6).” Lucente v. Int’l Bus. Machines Corp., 310
F.3d 243, 258 (2d Cir. 2002). We review the denial of leave to amend based on futility de novo.
Hutchison v. Deutsche Bank Secs. Inc., 647 F.3d 479, 490 (2d Cir. 2011).


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        Garay alleged, in her opposition to Novartis’s motion for judgment on the pleadings,1 that
she was unable to perform the functions of her job as of December 2010—after she received her
termination letter but before she was declared totally disabled. This was because Novartis required
Garay to return all equipment necessary to perform her job, including, among other items, her
company-issued laptop, cell phone, credit card, and car. Such actions belie the District Court’s
holding of futility, inasmuch as adverse employment actions may be evident from “significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.” Galabya v.
New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). We
therefore vacate that portion of the District Court’s judgment denying Garay leave to amend her
complaint and remand the cause to allow Garay to amend her discrimination claims.

         We have considered all of Garay’s remaining arguments on appeal and find them to be
without merit. Accordingly, the September 5, 2013 judgment of the District Court is AFFIRMED
in part, VACATED in part, and the cause is REMANDED for further proceedings consistent with
this opinion.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




            1 That this allegation was raised for the first time in Garay’s opposition papers is of no consequence. In Nielsen,

we vacated the denial of leave to amend on futility grounds because, “[i]f [plaintiff’s] complaint were amended to include
the allegations in his opposition to the motion to dismiss, the complaint would sufficiently set forth the . . . element of
his . . . claim” that the district court found was inadequately alleged. 746 F.3d at 64. Here, just as in Nielsen, if the
complaint were amended to include the allegations in Garay’s opposition and accompanying affidavits, the deficiency the
District Court identified would seemingly be cured.
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