16-2671-cv
Tiffany v. Dzwonczyk, et al.
                                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 18th day of August, two thousand seventeen.

PRESENT: REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                                                    Circuit Judges,
                 JOAN M. AZRACK,
                                                    District Judge.*
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RANDALL SCOTT TIFFANY,
                                               Plaintiff-Appellant,

                               v.                                        No. 16-2671-cv

PHILIP J. DZWONCZYK, MEDICAL DIRECTOR,
ACTING ADMINISTRATOR, BONNIE NORTON,
DIRECTOR HUMAN RESOURCES, SUSAN PARKER,
NUTRITIONAL SERVICES ADMINISTRATOR 2,
DEBORAH MURPHY,
                       Defendants-Appellees,

CYNTHIA FAIRCHILD, NEW YORK STATE
VETERANS HOME,
                                                        Defendants.
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FOR APPELLANT:                                     Randall Scott Tiffany, pro se, McDonough,
                                                   New York.


*Judge Joan M. Azrack, of the United States District Court for the Eastern District of New
York, sitting by designation.

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FOR APPELLEES:                             Laura Etlinger, Assistant Solicitor General
                                           (Andrea Oser, Deputy Solicitor General,
                                           Barbara D. Underwood, Solicitor General, on
                                           the brief), for Eric T. Schneiderman, Attorney
                                           General of the State of New York, Albany,
                                           New York.

       Appeal from a judgment of the United States District Court for the Northern District

of New York (Mae A. D’Agostino, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the July 5, 2016 judgment of the district court is AFFIRMED.

       Plaintiff Randall Tiffany, pro se, sued his former employer, the New York State

Veterans Home, as well as former supervisors and a co-worker under the Family and

Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq., and Title VII of the

Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq. He here

appeals the district court’s sua sponte dismissal of his Title VII hostile work environment

claim and its grant of defendants’ unopposed motion to dismiss his FMLA retaliation

claim. We assume the parties’ familiarity with the underlying facts and the procedural

history of this case, which we reference only as necessary to explain our decision to affirm.

       We review de novo the dismissal of a complaint, accepting the alleged facts as true

and drawing all reasonable inferences in plaintiff’s favor. See Barrows v. Burwell, 777

F.3d 106, 111 (2d Cir. 2015). Nevertheless, “bald assertions and conclusions of law will

not suffice” to avoid dismissal, Spool v. World Child Int’l Adoption Agency, 520 F.3d 178,

183 (2d Cir. 2008) (internal quotation marks omitted), nor will factual “allegations that are

wholly conclusory,” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). Rather, a complaint



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must plead sufficient “factual content” to allow a court “to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009).

1.     FMLA Retaliation

       To state an FMLA retaliation claim, a plaintiff must plausibly plead that “(1) he

exercised rights protected under the FMLA, (2) he was qualified for his position, (3) he

suffered an adverse employment action, and (4) the adverse employment action occurred

under circumstances giving rise to an inference of retaliatory intent.”           Donnelly v.

Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (internal quotation

marks omitted). An inference of retaliatory intent can be drawn from temporal proximity

between the exercise of FMLA rights and the adverse action. See id. at 152.

       The complaint here fails to allege sufficient facts to admit an inference of retaliatory

intent. Allegations that Tiffany was terminated in October 2014, more than a year after

returning from FMLA leave and after a year of unauthorized leave, fail to admit an

inference of retaliatory intent based on temporal proximity. See Bucalo v. Shelter Island

Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012) (“While we have not drawn a

bright line to define the outer limits beyond which a temporal relationship is too attenuated

to establish a causal relationship between a protected activity and an allegedly retaliatory

action, courts in this circuit have typically measured that gap as a matter of months, not

years.” (internal quotation marks omitted)). Tiffany argues that complaints he made to the

Inspector General and Governor in June and August 2013 give rise to an inference of

retaliation. But these complaints were also too temporally removed from his termination

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over a year later to admit such an inference. In any event, none of those complaints

concerned FMLA leave, but only alleged “corrupt and illegal” acts, including nepotism

and favoritism.

          Accordingly, we conclude that Tiffany’s FMLA retaliation claim was correctly

dismissed.

2.        Hostile Work Environment

          We reach the same conclusion as to dismissal of Tiffany’s Title VII hostile work

environment claim. “It is axiomatic that mistreatment at work . . . is actionable under Title

VII only when it occurs because of an employee’s sex, or other protected characteristic.”

Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (alteration in original) (internal

quotation marks omitted).       Failure to allege membership in a protected class or a

relationship between adverse actions and protected class status warrants dismissal. See id.

at 113.

          Although Tiffany frames his hostile work environment claim as arising under Title

VII, he fails to allege any facts suggesting a relationship between the adverse actions and

his membership in a Title VII protected class. In his brief, Tiffany makes the conclusory

assertion, unsupported by complaint allegations, that a court can infer that age

discrimination prompted his hostile work environment. This argument fails because

Tiffany explicitly brought his action under Title VII, which covers discrimination on the

basis of race, color, sex, religion, and national origin, not age. See General Dynamics

Land Sys., Inc. v. Cline, 540 U.S. 581, 586 (2004) (“Congress chose not to include age

within discrimination forbidden by Title VII.”). Moreover, the complaint makes no

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reference to Tiffany’s age.

3.     Conclusion

       We have considered Tiffany’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 of Court




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