Kassner v. 2ND Avenue Delicatessen Inc.

• Citation: 496 F.3d 229
• Decision Date: 24 July 2007
• Docket Number: Docket No. 05-4237-cv.
• Parties: Diane KASSNER and Marsha Reiffe, Plaintiffs-Appellants, Joseph Farrino, Plaintiff, v. 2ND AVENUE DELICATESSEN INC. and Jacob Lebewohl, in his official capacity as Owner and General Manager of the 2nd Avenue Delicatessen Inc., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

496 F.3d 229

Diane KASSNER and Marsha Reiffe, Plaintiffs-Appellants Joseph Farrino, Plaintiff, v. 2ND AVENUE DELICATESSEN INC. and Jacob Lebewohl, in his official capacity as Owner and General Manager of the 2nd Avenue Delicatessen Inc., Defendants-Appellees.

Docket No. 05-4237-cv.

United States Court of Appeals, Second Circuit.

Argued: February 17, 2006.

Decided: July 24, 2007.

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

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

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

STANCEU, Judge:

Plaintiffs-appellants Diane Kassner and Marsha Reiffe brought an action in the United States District Court for the Southern District of New York in September 2004, alleging age discrimination on the basis of adverse employment actions and retaliation in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Michael Daly Code § 8-101 et seq. They appeal from the district court's judgment in favor of defendants-appellees 2nd Avenue Delicatessen Inc. and its owner and general manager, Jacob Lebewohl, entered on July 8, 2005.

The district court (George B. Daniels, Judge) granted defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted and denied as futile plaintiffs' cross-motion to amend the complaint. The district court ruled that all of Kassner's claims were time-barred under applicable statutes of limitations, that most of Reiffe's claims also were time-barred, and that Reiffe's remaining claims either did not amount to an adverse employment action or were supported by insufficient factual allegations from which the court could infer age discrimination. The district court concluded, further, that allowing plaintiffs to amend the complaint would be futile because plaintiffs' proposed amended complaint alleged few new facts and because, in restating the same alleged acts by defendants without the references to specific dates that appeared in the complaint as filed, the proposed amended complaint could hide, but not cure, any timeliness deficiencies.

We conclude that certain of plaintiffs' claims were supported by factual allegations sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. We further conclude that the district court erred in denying the motion to amend the complaint on the ground of futility and direct that the district court, on remand, exercise its discretion under Federal Rule of Civil Procedure 16(b) to determine whether the proposed amendment or different amendments to the complaint should be allowed. For these reasons, we vacate the judgment dismissing the action and remand the matter to the district court for further proceedings in accordance with this Opinion.

I. BACKGROUND

When they commenced their action in district court in 2004, plaintiffs Kassner and Reiffe were 79 and 61 years of age, respectively, and were employed as waitresses in a restaurant operated by defendant 2nd Avenue Delicatessen Inc. Kassner had worked for 2nd Avenue Delicatessen Inc. since 1986; Reiffe began her employment there in 1974. On November 26, 2002 and December 20 2002, prior to bringing this action, Reiffe and Kassner, respectively, filed claims of age discrimination with the Equal Employment Opportunity Commission ("EEOC") against 2nd Avenue Delicatessen Inc. and Jacob Lebewohl. See Br. for Defs.-Appellees 5. The EEOC issued each plaintiff a right-to-sue form letter dated June 18, 2004. Id. at 6.

Plaintiffs filed their complaint in the United States District Court for the Southern District of New York on September 13, 2004, alleging that defendants violated the ADEA, the NYSHRL, and the NYCHRL by discriminating against plaintiffs on account of age and by retaliating against plaintiffs for complaining about age discrimination and for bringing charges alleging age discrimination. The complaint contains various allegations to the effect that defendants discriminated against plaintiffs by assigning them to work shifts and work stations at which earnings were less than those to which younger waitresses were assigned. Compl. ¶¶ 12-13, 21-23. The complaint alleged that defendant Lebewohl and several of his subordinates repeatedly made degrading comments about Kassner, "including, but not limited to, `drop dead,' `retire early,' `take off all of that make-up[,]' and `take off your wig.'" Id. ¶ 14. The complaint further alleged that defendants retaliated against Reiffe by changing her work shift and work station. Id. ¶¶ 20-23. In addition, the complaint claimed that defendant Lebewohl pressured plaintiffs to retire and pointed to the front of the restaurant and said "there's the door" when they complained about their disparate treatment. Id. ¶¶ 44-45, 50-51, 56-57 (emphasis omitted). Plaintiffs sought injunctive relief, lost earnings, compensatory and punitive damages, and an award for attorneys' fees. Id. ¶ 2, PRAYER FOR RELIEF.

On September 22, 2004, nine days after plaintiffs filed the complaint, the district court entered a Civil Case Management Plan and Scheduling Order, pursuant to Rules 16 and 26(f) of the Federal Rules of Civil Procedure. The Case Management Plan and Scheduling Order limited the time for amendment of the pleadings, requiring any amendments to the pleadings to be made by February 1, 2005.

Defendants did not file or serve an answer to the complaint but instead, on October 12, 2004, moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. During approximately the next four months, plaintiffs sought and were granted extensions of time in which to respond to the motion to dismiss, to engage in settlement discussions with defendants, and to obtain new counsel. On March 4, 2005, plaintiffs, through their new counsel, timely filed their opposition to the motion to dismiss and moved to amend their complaint.

In a judgment entered on July 8, 2005, the district court granted defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted and denied plaintiffs' cross-motion to amend the complaint. In its Memorandum Decision and Order, dated July 5, 2005, 2005 WL 1571927, the district court concluded that plaintiffs' ADEA claims were time-barred to the extent they were based on discrete acts that occurred before February 23, 2002 because the ADEA requires filing of an administrative complaint with the EEOC within 300 days after the alleged unlawful employment practice. Mem. Dec. & Order at 3; see 29 U.S.C. § 626(d) (2000). The district court also found plaintiffs' NYSHRL and NYCHRL claims to be time-barred by the applicable three-year statutes of limitations to the extent they were based on discrete acts occurring before September 13, 2001. See Mem. Dec. & Order at 3-4. The district court concluded that all of Kassner's claims were time-barred because they were based on alleged discrete acts occurring in 1999. Id. at 4. Moreover, the district court ruled that the only allegations by Reiffe of discriminatory acts that were not time-barred "either do not amount to an adverse employment action or are insufficient factual allegations to infer that those actions were based upon her age." Id. at 4-5.

In denying plaintiffs' cross-motion to amend the complaint, the district court noted that the proposed amended complaint "adds few new factual allegations" and "simply drops any reference to applicable dates in an attempt to vaguely and generally refer to events without any time reference." Id. at 6. The district court concluded that "[s]uch a proposed amendment may hide, but cannot cure, any time-barred deficiencies. It therefore would be futile." Id.

Plaintiffs-appellants subsequently brought this appeal and, in connection therewith, request legal fees and costs.

II. DISCUSSION

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

We review de novo the district court's grant of a motion to dismiss. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir.2002). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court is to accept as true all facts alleged in the complaint. Id. The court is to draw all reasonable inferences in favor of the plaintiff. Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir.2006); see also Leibowitz v. Cornell Univ., 445 F.3d 586, 591-92 (2d Cir.2006). The Supreme Court has held that, under the notice system of pleading established by the Federal Rules of Civil Procedure, "an employment discrimination plaintiff need not plead a prima facie case of discrimination." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Under Rule 8(a)(2), the pleading requirement is satisfied by "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Leibowitz, 445 F.3d at 591. The Supreme Court has rejected the argument that allowing lawsuits based on conclusory allegations of discrimination would encourage disgruntled employees to sue and thereby overburden the courts. "Whatever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits." Swierkiewicz, 534...