Tarshis v. The Riese Organization

Decision Date01 August 1999
Docket NumberDocket No. 98-9599
Citation211 F.3d 30
Parties(2nd Cir. 2000) FRED TARSHIS, Plaintiff-Appellant, v. THE RIESE ORGANIZATION, Defendant-Appellee
CourtU.S. Court of Appeals — Second Circuit

FRED TARSHIS, New York, New York, Pro Se Plaintiff-Appellant.

JOHN HARRIS, New York, New York (Davidoff & Malito LLP, New York, New York, of counsel), for Defendant-Appellee.

Before: NEWMAN, CARDAMONE, and JACOBS, Circuit Judges.

CARDAMONE, Circuit Judge:

Plaintiff Fred Tarshis appeals, pro se, from a judgment entered October 7, 1998 in the United States District Court for the Southern District of New York (Batts, J.) that granted the defendant Riese Organization's motion to dismiss his complaint for failure to state a cause of action. Plaintiff's complaint alleges discrimination in employment and, like most such litigation, this case has a David-versus-Goliath quality to it. Tarshis, a 67-year-old male employee of Riese, one of New York City's largest restaurant operations, worked at Riese's Brew Burger where he was its oldest and only white employee. Six years ago his supervisor told him to take a month off, and when he returned the Brew Burger where he had worked was closed. Defendant offered him a job in another restaurant for longer hours at less pay, which he refused. Instead he brought suit against his former employer for age and national origin discrimination.

The district court dismissed plaintiff's complaint ruling that closing a restaurant could not serve as a pretext for age or national origin discrimination against one of the employees that worked there, and further, that his claims could not stand because his employer offered him another - although not as good - job. As far as we know from the record the only reason given for plaintiff's firing was the restaurant's closing. In his 20 years of employment at defendant's well-established and overflowing restaurant business, plaintiff was considered good enough as a waiter to be promoted to cook and bartender, good enough as cook and bartender to become an assistant manager, and good enough as an assistant manager to hold that position simultaneously at two of Riese's restaurants at the time he was fired. Yet, defendant did not consider plaintiff good enough to continue employment at one of its 150 New York restaurants after one of the two where plaintiff worked was closed. We reverse the dismissal of plaintiff's complaint and remand the case to the district court.


Defendant Riese is New York's largest independent restaurant business. It owns and operates more than 150 restaurants in the New York City area, including well-known franchises such as T.G.I. Friday's, Houlihan's, Beefsteak Charlie's, Dunkin' Donuts, KFC, Pizza Hut, Roy Rogers, Arby's, Lindy's, and Charlie O's. The plaintiff began working as a waiter with Riese in 1974 at age 47. During his 20 years with the company, he worked a variety of jobs in several different Riese restaurants. In his complaint, plaintiff alleges that in 1993 he was splitting his time as assistant manager at two Riese restaurants, working at the Brew Burger three days a week and at Lindy's two days a week. In October 1993 Tarshis was ordered by his supervisor, Tony Rosado, a 46-year-old Hispanic man, to take a one-month vacation. During that month, Riese closed the Brew Burger and began converting its location into a new upscale Martini's restaurant.

When he returned from vacation, Tarshis found the restaurant where he had worked closed and himself without a job. He was also told he no longer had a job at Lindy's. His replacement at Lindy's was Mike Perez, a 59-year-old Hispanic man. When he was dismissed, Tarshis alleges he was the oldest employee at the Brew Burger and its only white employee. He also asserts that every other employee at the closed Brew Burger was reassigned either to the new Martini's or to another Riese restaurant. Plaintiff appealed in vain to his former supervisor for reinstatement, and only after he pleaded with a Riese vice president was he given a short term position during the 1993 Christmas holidays, being let go again in early January 1994.

In May 1994 Riese placed several advertisements in New York newspapers seeking assistant managers for their restaurants. Tarshis applied for and was offered a position that paid less and required him to work one day more than his previous position. He declined this offer, and instead filed a claim of age and national origin discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC dismissed his claim on July 10, 1996.

Tarshis later filed a suit in federal court alleging violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., Article I, section 11 of the New York Constitution, the New York Human Rights Law, N.Y. Exec. Law 296 et seq., and unspecified New York City anti-discrimination laws. On October 7, 1998 the district court, upon defendant's motion, dismissed plaintiff's complaint for failure to state a claim. It ruled that Tarshis had not stated a discrimination cause of action because Riese's closure of the Brew Burger was a valid, non-discriminatory reason for dismissing him. In addition, it found no discrimination in the failure to reassign plaintiff after the Brew Burger closed because plaintiff admitted that he turned down this offer of reemployment. Having dismissed the federal claims, the district court in the exercise of its discretion dismissed the pendent state claims as well.

I Legal Principles
A. Standard of Review

A district court may grant a motion to dismiss for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This rule barring the granting of a motion to dismiss has for many years been carefully adhered to in this Circuit, particularly in civil rights actions. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Escalera v. New York City Hous. Auth., 425 F.2d 853, 857 (2d Cir. 1970); Holmes v. New York City Hous. Auth., 398 F.2d 262, 264-65 (2d Cir. 1968).

Thus, while bald assertions and conclusions of law will not suffice to state a claim, see Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996), the district court, before granting a motion to dismiss, must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally. See Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999). We review dismissal of plaintiff's complaint de novo. See id.


Reading that complaint in light of the rules just outlined, we think it purports to state two claims: one, an age discrimination claim and, two, a Title VII claim. We discuss the legal principles governing the age claim first. The ADEA prohibits discrimination on the basis of age against an individual aged 40 or older "with respect to his compensation, terms, conditions, or privileges of employment." 29 U.S.C. 623(a)(1), 631(a). Claims of age discrimination under the ADEA are analyzed according to the same burden-shifting framework outlined for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994).

Under the McDonnell Douglas analysis, a plaintiff must first prove by a preponderance of the evidence a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). A plaintiff who claims age discrimination has the burden - described as minimal - of establishing four elements to prove a prima facie case. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam). Plaintiff must show that he is (1) a member of the protected age group, (2) qualified for the position, (3) subjected to an adverse employment decision or discharge, and that (4) his discharge occurred under circumstances giving rise to an inference of discrimination. See Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Woroski, 31 F.3d at 108. To make the required showing, a plaintiff may rely on direct evidence of what the defendant did and said, but more often than not must depend on the cumulative weight of circumstantial evidence to make out a prima facie case. See Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997).

Once plaintiff has successfully established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its adverse employment action. See Austin, 149 F.3d at 153; Woroski, 31 F.3d at 108. Any stated reason is sufficient; the employer need not persuade the court that the proffered reason was the actual reason for its decision. See Austin, 149 F.3d at 153; Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc). If the employer makes this showing, the presumption of discrimination raised by plaintiff establishing his prima facie case drops out, and the burden shifts back to plaintiff to prove that discrimination was the real reason for the employment...

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