    14-2930-cv
    Bohnet v. Valley Stream Union Free School District 13


                      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 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 27th day of February, two thousand fifteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________

    Lynn L. Bohnet,
                        Plaintiff-Appellant,

                 v.                                      14-2930-cv

    Valley Stream Union Free School District 13,
    Elizabeth Lison, Christine Zerillo, Frank
    Huplonsky,

                        Defendants-Appellees.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                             MATTHEW WEINICK, Famighetti &
                                                         Weinick, PLLC, Melville, NY.

    FOR DEFENDANTS-APPELLEES:                            JOSEPH W. CARBONARO, Frazer &
                                                         Feldman, LLP, Garden City, NY.

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       Appeal from an order of the United States District Court for the Eastern District of New

York (Hurley, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Lynn L. Bohnet (“Bohnet”), appeals from a judgment of the district court

dismissing her claims against her employer, Valley Stream Union Free School District 13 and

individual defendants (“Defendants”), alleging, inter alia, age discrimination and retaliation

under the Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. § 1983 and New York

State Human Rights Law (“NYSHRL”). Bohnet also appeals the district court’s denial of a

motion for leave to amend the complaint. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

       This Court reviews 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.” Leibowitz v. Cornell Univ.,

445 F.3d 586, 590 (2d Cir. 2006). A plaintiff must allege sufficient facts to state a claim of relief

that is “plausible on its face.” Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007). Such factual

allegations must be “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action.” Id. at 555. When a complaint pleads facts that are “merely consistent with”

a defendant’s liability, the complaint “stops short of the line between possibility and plausibility

of entitlement to relief.” Id. at 557. (internal quotation marks and brackets omitted). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.” Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks omitted).



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       Under the ADEA, an employer may not “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 such individual’s age.” 29 U.S.C. §

623(a)(1). An ADEA plaintiff “must prove that age was the ‘but-for’ cause of the employer's

adverse decision,” rather than a motivating factor for the decision. Gross v. FBL Fin. Serv., 557

U.S. 167, 176 (2009).

       On review of the record, and drawing all inferences in Bohnet’s favor, we conclude that

the district court fully considered whether the complaint pleaded “sufficient facts to make

plausible the conclusion that ‘but for’ her age [Bohnet] would have been hired,” and it correctly

determined that the complaint lacked the requisite specificity to withstand a motion to dismiss.

Bohnet v. Valley Stream Union Free Sch. Dist. 13, No. 12-CV-1989 DRH ARL, 2014 WL

3400462, at *4 (E.D.N.Y. July 14, 2014) (emphasis added). We agree with the district court, for

the reasons set forth in its thorough memorandum of decision, that absent greater specificity,

Bohnet’s factual allegations of age discrimination both in her original and proposed amended

complaint are conclusory and “stop[] short of the line between possibility and plausibility.”

Twombly, 550 U.S. at 557. The facts alleged do not provide a sufficient basis to conclude that but

for her age, Bohnet would have been hired for the positions for which she applied.

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

merit. Accordingly, we AFFIRM the district court’s grant of Defendants’ motion to dismiss and

its denial of Bohnet’s motion for leave to amend the complaint.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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