TABLE OF AUTHORITIES................................................................................................. ii

STATEMENT OF THE CASE............................................................................................ 1

A. Nature of the Case and Course of Proceedings................................................. 1

B. Statement of the Facts............................................................................................. 2

C. District Court Order.................................................................................................. 5

ARGUMENT............................................................................................................................. 6

The district court erred in dismissing Franchino’s ADEA complaint because

it plausibly alleges that he was terminated because of his age.................................. 6

A. Rule 8(a)(2) imposes only a “minimal” burden on plaintiffs alleging

employment discrimination.................................................................................... 6

B. Franchino’s complaint satisfies Rule 8(a)(2) because it plausibly alleges

that age was a “but for” cause of his termination........................................... 10

CONCLUSION....................................................................................................................... 18

CERTIFICATE OF COMPLIANCE............................................................................. C-1

CERTIFICATE OF SERVICE........................................................................................ C-2

Table of Authorities

Page(s)

Cases

Ashcroft v. Iqbal,
556 U.S. 622 (2009)..................................................................................................... passim

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)..................................................................................................... passim

Brown v. Daikin Am. Inc.,
756 F.3d 219 (2d Cir. 2014)........................................................................................ 8, 16

Carlton v. Mystic Transp., Inc.,
202 F.3d 129 (2d Cir. 2000)............................................................................... 15, 16, 17

EEOC v. Port Auth. of New York & New Jersey,
768 F.3d 247 (2d Cir. 2014)............................................................................................... 9

Gonzalez v. Carestream Health, Inc.,
520 F. App’x 8 (2d Cir. 2013)......................................................................................... 15

Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009)........................................................................................................... 11

Liburd v. Bronx Lebanon Hosp. Ctr.,
2008 WL 3861352 (S.D.N.Y. Aug. 19, 2008)......................................................... 5, 14

Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015)...................................................................................... passim

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).............................................................................................. 6, 7, 9, 16

O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996)..................................................................................................... 13, 14

Table of Authorities

Sheppard v. David Evans & Assoc.,
694 F.3d 1045 (9th Cir. 2012)......................................................................................... 15

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)..................................................................................................... passim

Vega v. Hempstead Union Sch. Dist.,
801 F.3d 72 (2d Cir. 2015)............................................................................. 9, 10, 11, 17

Statutes

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq................... 1

29 U.S.C. § 623(a)(1)............................................................................................................... 10

29 U.S.C. § 631(a)..................................................................................................................... 10

Other Authorities

Fed. R. App. P. 29(a)................................................................................................................. 1

Fed. R. Civ. P. 12(b)(6)............................................................................................. 1, 5, 6, 11

Rule 8(a).................................................................................................................... 7, 11, 12, 14

Rule 8(a)(2)....................................................................................................................... 6, 7, 10

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including the A ge Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. This appeal raises an important legal question concerning the proper pleading standard for ADEA claims. Because resolution of this issue will affect the EEOC’s enforcement of the ADEA as well as the ability of private parties to enforce their federal civil rights, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Whether the district court applied an unduly high pleading standard when it held that the plaintiff failed to plausibly allege that he was terminated because of his age and therefore dismissed his ADEA complaint under Fed. R. Civ. P. 12(b)(6).

STATEMENT OF THE CASE

A. Nature of the Case and Course of Proceedings

This is an employment discrimination case alleging age discrimination. Appx. 1 (R.16). The district court granted the defendants’ motion under Fed. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim and entered final judgment. Appx. 28, 42 (R. 25, R. 26). The plaintiff appealed. Appx.43 (R.27).

B. Statement of Facts

Plaintiff Michael Franchino filed an amended complaint against Defendant Roman Catholic Archdiocese of New York, d/b/a ArchCare, and Terence Cardinal Cook Health Care Center, Inc. (“ArchCare”) alleging that his termination violated the ADEA.[2] Appx. 3 (R.16). The amended complaint alleges the following facts:

Franchino was born in 1947. Appx. 3 (R.16, ¶ 15). In 2008, he was hired to work in ArchCare’s Human Resources office, which was headed by Vice President Hugo Pizarro. Appx. 3 (R.16, ¶¶ 11-12). Franchino had an “exemplary and unblemished employment record.” Appx. 3 (R.16, ¶ 18).

ArchCare terminated Franchino because of his age. Appx. 3 (R.16, ¶ 19). Franchino “was frequently the brunt of embarrassing and hurtful age-related jokes made by his superiors or condoned by superiors, including . . . Mr. Peter Hill and Mr. Hugo Pizarro, on conference calls, company sponsored functions[,] and at business meeting[s].” Appx. 4 (R.16, ¶ 21). Hill and Pizarro are in their early 50s. Appx. 4 (R.16, ¶ 23). The age-related jokes included making fun of the fact that at age sixty-seven, Franchino had four children who were barely teenagers. Appx. 4 (R.16, ¶ 24).

There were “numerous e-mails poking fun” of Franchino “because of his age.” Appx. 4 (R.16, ¶ 25). Franchino’s superiors, and his peers – condoned by superiors – wrote and sent emails with age-related cartoons, jokes and comments that were “directed at [Franchino].” Appx. 4 (R.16, ¶ 26). His superiors “allowed him to be depicted as old and decrepit in unflattering cartoons.” Appx. 4 (R.16, ¶ 26). Hill and Pizarro repeatedly condoned such age-related jokes sent via inter-office e-mail, including one “referring to Franchino as a ‘carry out’, i.e.[,] someone who would pass away on the job.” Appx. 4 (R.16, ¶ 27). During Human Resources staff meetings, a peer “consistently and regularly” directed age-related jokes at Franchino, which Hill and Pizarro condoned. Appx. 4 (R.16, ¶ 28). Instead of curtailing the peer’s ageist comments and improper behavior, senior management made subtle comments to encourage it. Appx. 4 (R.16, ¶ 29).

At some point, Franchino was tasked with monitoring a “substantially younger” employee named Lydia Mercado, who had been accused by her staff of creating a hostile work environment. Appx. 4-5 (R.16, ¶¶ 30-32). Mercado’s supervisor wanted to discipline and fire her, and Franchino supported that effort. Appx. 5 (R.16, ¶ 33). Hill and Pizarro, however, were biased in favor of Mercado because she was, inter alia, “much younger.” Appx. 5 (R.16, ¶ 34). In response to Franchino’s involvement in her discipline, Mercado made the baseless accusation that Franchino stared down the blouse of a female employee. Appx. 5 (R.16, ¶¶ 37-38). Hill investigated and found the complaint to be without merit, as the female employee denied it ever happened. Appx. 5-6 (R.16, ¶¶ 39-40, 45). But the allegation was nevertheless used as a pretext to fire Franchino “due to [his] age.” Appx. 6 (R.16, ¶ 44). Mercado made other allegations against Franchino, which were investigated and found to be baseless. Appx. 6 (R.16, ¶ 46). Although Franchino was due for his performance evaluation on August 25, 2014, Hill refused to provide it; the review was not done because it would have been “excellent,” thereby undermining Hill’s intent to fire Franchino. Appx. 14 (R.16, ¶¶ 105-108).

ArchCare fired Franchino on or about September 3, 2014. Appx. 3 (R.16, ¶ 16). Everyone involved in Franchino’s termination was “substantially younger,” and he was replaced by a “much younger female” employee named Christine Nation-Jumpp. Appx. 4, 6 (R.16, ¶¶ 30, 49). In firing Franchino, ArchCare failed to follow its own personnel policy, as it failed to inform him of the details of the allegations, refused to permit him to have representation at the disciplinary hearing although he was entitled to it, and failed to give him a chance to respond to the allegations. Appx. 8-9 (R.16, ¶¶ 62-70). “[O]ther (younger) employees” were routinely given due process rights when facing termination. Appx. 9 (R.16, ¶ 71).

Immediately prior to his termination, ArchCare conducted a system-wide employee satisfaction survey (involving small group meetings without supervisors being present); none of the 600 employees complained about Franchino. Appx. 7-8 (R.16, ¶¶ 55-56-60). Rather, Hill conducted random interviews with some employees, and “many females . . . spoke highly of the Plaintiff and his professional behavior.” Appx. 8 (R.16, ¶ 59).

C. District Court’s Decision

After setting out the standard for granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and Ashcroft v. Iqbal, 556 U.S. 622 (2009), the district court dismissed the ADEA claim. Appx. 31-32, 36-40 (R.25, pp. 4-5, 9-13). The court noted that age discrimination plaintiffs “need only meet a ‘minimal’ pleading standard.” Appx. 37 (R.25, p. 10) (citation omitted). Specifically, they “must allege ‘that age was the “but-for” cause of the employer’s adverse action.’” Appx. 37 (R.25, p. 10) (quoting Vega v. Hempstead Union Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)). The court ruled that Franchino failed to satisfy this minimal standard. Appx. 37 (R.25, p. 10). While the court acknowledged the complaint’s allegations of ageist comments, jokes, and cartoons, the court held that they were “insufficient to create a plausible inference that plaintiff was terminated because of his age.” Appx. 37 (R.25, p. 10). First, the court said, the complaint failed to allege “when these acts occurred or who made the comments or cartoons[,]” meaning there was no “inference of a ‘nexus’ between the comments or cartoons and his termination.” Appx. 38 (R.25, p. 11). Second, the court ruled, the complaint’s allegation that Franchino was replaced by a “much younger” employee, “without more, does not plausibly support an inference age was a motivating factor [sic] in his termination.” Appx. 39 (R.25, p. 12) (relying on Liburd v. Bronx Lebanon Hosp. Ctr., 2008 WL 3861352 (S.D.N.Y. Aug. 19, 2008)). Finally, the court concluded, “the fact that plaintiff alleges he was hired when he was 61 years old tends to undercut his claim of age discrimination.” Appx. 39 (R.25, p. 12)

ARGUMENT

The district court erred in dismissing Franchino’s ADEA complaint because it plausibly alleges that he was fired because of his age.

The district court dismissed Franchino’s ADEA claim under Fed. R. Civ. P. 12(b)(6) for failing to state a claim for which relief can be granted. The court erred. Rule 8(a)(2) sets out the standard for pleading a claim for relief. It requires only that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint satisfies Rule 8(a)(2) and therefore survives a motion to dismiss when it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Franchino’s amended complaint satisfies this plausibility standard, as it contains more than enough factual allegations to give rise to the reasonable inference that ArchCare fired Franchino because of his age. The district court’s ruling to the contrary conflicts with Supreme Court and Second Circuit precedent interpreting Rule 8(a)(2), constituting reversible error.

A. Rule 8(a)(2) imposes only a “minimal” burden on plaintiffs alleging employment discrimination.

The Supreme Court and this Court have issued several decisions clarifying the pleading requirements of Rule 8(a)(2) for employment discrimination plaintiffs. In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court addressed the question of whether an employment discrimination complaint needs to contain facts establishing a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to satisfy Rule 8(a)(2). The Court held unanimously that it does not. The Court explained that the “prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.” Id. at 510. The Court said it had never suggested “that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard” for overcoming a motion to dismiss. Id. at 511. It would be inappropriate to require a plaintiff to plead facts establishing a prima facie case, the Court added, given that the McDonnell Douglas framework does not apply to every case—such as direct evidence cases—and given that its precise requirements vary depending on the case. Id. at 511-12. The Court further found that imposing a “heightened pleading standard in employment discrimination cases” conflicted with Rule 8(a)(2), which requires only that the defendant be given “‘fair notice’” of the claim and the “‘grounds upon which it rests.’” Id. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A few years after Swierkiewicz, the Supreme Court again addressed the proper Rule 8(a)(2) pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), an antitrust case. The Court held in Twombly that in order to satisfy Rule 8(a), a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The Court emphasized that the plausibility standard is not a probability standard; rather, the plausibility standard “simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal[ity].” Id. at 556. A complaint may suffice to withstand a motion to dismiss, the Court said, “even if it strikes a savvy judge that actual proof of those facts is improbable” and that recovery is “very remote and unlikely.” Id. (internal quotation marks and citation omitted). Although Twombly rejected Conley’s “no set of facts” language, which Swierkiewicz had relied upon, the Twombly Court held that its analysis was consistent with Swierkiewicz. 550 U.S. at 562-63, 569-70.

Two years after Twombly, the Supreme Court clarified in Ashcroft that Twombly’s “plausibility” standard applies to all cases, not only to antitrust cases. 556 U.S. 662. Consistent with Twombly, the Court held that in order to survive a motion to dismiss, a complaint must contain sufficient facts to state a plausible claim to relief. Id. at 678. A claim is facially plausible where the facts pled allow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court again emphasized that the plausibility standard is not a “probability requirement” and explained that whether a complaint satisfies the plausibility standard is “a context-specific task” requiring the district court to “draw on its judicial experience and common sense.” Id. at 678-79.

Although Twombly reaffirmed Swierkiewicz’s holding that there is no heightened pleading requirement for employment discrimination cases, for several years this Court said it was unclear to what extent Swierkiewicz remained good law. See, e.g., Brown v. Daikin Am. Inc., 756 F.3d 219, 228-29 (2d Cir. 2014) (declining to resolve the issue).

This Court has since answered that question, holding that Swierkiewicz, as modified by Iqbal/Twombly, has continued viability in employment cases. See, e.g., Littlejohn v. City of New York, 795 F.3d 297, 309-10 (2d Cir. 2015) (holding that Swierkiewicz, as modified, applies in Title VII case); EEOC v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254 (2d Cir. 2014) (in Equal Pay Act case, recognizing Swierkiewicz’s “continued viability, as modified by Twombly and Iqbal”). Accordingly, it is “clear that a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). Rather, this Court has held, under Iqbal/Twombly a plaintiff in a Title VII employment case “must plausibly allege that (1) the employer took adverse action against him and (2) his [protected trait] was a motivating factor in the employment decision.” Id. at 86. The plaintiff’s burden is “minimal,” this Court has emphasized, as a plaintiff need only allege facts providing “minimal support” of discriminatory motivation. Id. at 86-87 (internal quotation marks and citation omitted).

This Court has also elaborated on the circumstances that might support the required plausible inference of discrimination. They include “an employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312. An inference of discrimination “also arises when an employer replaces a terminated or demoted employee with an individual outside the employee’s protected class.” Id. at 312-13. In fact, evidence that the plaintiff was replaced by someone outside the protected class “will ordinarily suffice for the required inference of discrimination at the initial prima facie stage of the Title VII analysis, including at the pleading stage.” Id. at 313 (holding that the plaintiff’s complaint was “more than sufficient to make plausible her [Title VII] claim[,]” as she was African-American and alleged replacement by a less experienced Caucasian employee).

Finally, this Court has stressed that courts making plausibility determinations “must be mindful of the ‘elusive’ nature of intentional discrimination.” Vega, 801 F.3d at 86 (citation omitted). As this Court has recognized, “rarely is there direct, smoking gun, evidence of discrimination.” Id. (internal quotation marks and citation omitted). Rather, “plaintiffs usually must rely on ‘bits and pieces’ of information to support an inference of discrimination, i.e., a ‘mosaic’ of intentional discrimination.” Id. (citation omitted). Accordingly, the plausibility standard requires only that plaintiffs allege facts providing “‘minimal’” support for the proposition that the employer’s actions were discriminatory. Id. at 87 (citation omitted).

B. Franchino’s complaint satisfies Rule 8(a)(2) because it plausibly alleges that age was a “but for” cause of his termination.

When evaluating whether a complaint satisfies the plausibility standard of Rule 8(a)(2), “[t]he starting point is the statute.” Id. at 85. The ADEA prohibits an employer from discharging an individual “because of such individual’s age.” 29 U.S.C. § 623(a)(1). The statute’s protections are limited to individuals age forty and above. 29 U.S.C. § 631(a). Unlike Title VII, which permits recovery when discrimination is a motivating factor in an adverse action, the ADEA applies a “but for” standard of causation. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). An ADEA plaintiff therefore satisfies the Iqbal/Twombly pleading standard by “plausibly alleg[ing] that (1) the employer took adverse action against him and (2) his [age] . . . was a [but for] factor in the employment decision.” Vega, 801 F.3d at 86.[3] In deciding a Rule 12(b)(6) motion to dismiss, a court must accept all the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Vega, 801 F.3d at 78.

In this case, the district court misapplied the Iqbal/Twombly pleading standard when it dismissed Franchino’s ADEA claim. The court ruled, correctly, that Franchino’s complaint adequately pled an adverse action and membership in the protected class. Appx. 37 (R.25, p.10). But the court erred in holding that the complaint’s allegations were “insufficient to create a plausible inference that plaintiff was terminated because of his age.” Id. Straightforward application of Swierkiewicz compels this conclusion.

As discussed, in Swierkiewicz the Supreme Court held that the plaintiff’s ADEA complaint “easily” satisfied Rule 8(a) where it “detailed the events leading to his termination, provided relevant dates, and included the ages . . . of at least some of the relevant persons involved with his termination.” 534 U.S. at 514. As with the plaintiff’s complaint in Swierkiewicz, in this case Franchino’s complaint detailed the events leading to his termination, provided relevant dates, and included the ages of some of the persons involved in his termination. Specifically, the complaint alleged detailed facts as to ArchCare’s termination of Franchino based on sexual harassment allegations it knew to be false, that Pizarro and Hill were in their early fifties (at least a dozen years younger than Franchino), that everyone involved in Franchino’s termination was “substantially younger,” and that Franchino’s replacement was “much younger.” These facts suffice under Swierkiewicz to satisfy the pleading standard of Rule 8(a). See Twombly, 550 U.S. at 570 (stating that the Court’s opinion was consistent with Swierkiewicz). Although not required, Franchino’s complaint includes additional factual allegations – beyond those present in Swierkiewicz – that support a plausible inference of discrimination; the complaint alleges that Franchino’s co-workers and supervisors frequently made, or condoned, ageist comments, jokes, and cartoons, that a younger co-worker was treated more favorably, and that younger workers were accorded more due process when facing termination. Franchino’s complaint therefore “easily” satisfies Rule 8(a)’s pleading standard, as it gives rise to the reasonable inference that age was a “but for” cause of his termination. Swierkiewicz, 534 U.S. at 514.

This Court’s precedent likewise supports the conclusion that Franchino’s complaint plausibly alleged age discrimination. In Littlejohn, this Court

stated that replacement by an individual outside the protected class “will ordinarily suffice for the required inference of discrimination at the initial prima facie stage of the Title VII analysis, including at the pleading stage.” Littlejohn, 795 F.3d at 313 (emphasis added). Applying that rule, this Court held that the plaintiff’s Title VII complaint was

“more than sufficient” to satisfy Iqbal where the complaint alleged that she was replaced by a less experienced Caucasian employee. Id. As in Littlejohn, the complaint in this case alleges that Franchino was replaced by someone outside the protected class, as he alleged that his replacement (Nation-Jumpp) was “much younger.” Appx. 7 (R.16, ¶ 49). To be sure, Franchino did not allege the specific age of his replacement. But an ADEA violation may occur when an individual is replaced by someone “substantially younger,” even if that person is within the protected age category. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (holding that a plaintiff can establish a prima facie case of discrimination without alleging replacement by someone younger than age 40). Accordingly, under Littlejohn, Franchino’s allegation that his replacement was “much younger” sufficed for the required inference of discrimination at the motion to dismiss stage, notwithstanding the omission of the exact age of his replacement. See also Twombly, 550 U.S. at 555 (complaint need not contain “detailed factual allegations”).

The district court disagreed, stating that Franchino’s allegation that he had been replaced by a “much younger” worker does not, “without more,” plausibly support an inference of age discrimination. Appx. 39 (R.25, p. 12). The court was mistaken. The only authority cited by the court was an unpublished district court case, Liburd v. Bronx Lebanon Hospital Center, which held that the plaintiff’s allegation of replacement by a younger and less experienced employee was insufficient to withstand a motion to dismiss. No. 07-11316, 2008 WL 3861352, at *2, *6 (S.D.N.Y. Aug. 19, 2008). Liburd is unpersuasive authority. The court never mentioned O’Connor or explained how its holding could be reconciled with Swierkiewicz, which held that a substantially similar ADEA complaint satisfied Rule 8(a). The Liburd court also held that the plaintiff’s claim was undercut by the fact she had been hired at age forty-seven. See id. at * 6. As discussed below, the court erred, as the “same-actor” inference comes into play at summary judgment, not on a motion to dismiss. Further, it is entirely irrelevant where, as in Liburd, twelve years pass between an individual’s hiring and firing. Finally, whatever Liburd’s persuasive value in 2008, it has none after Littlejohn. The district court’s reliance on Liburd was therefore misplaced.

Accordingly, Littlejohn controls. Franchino’s allegations that he was fired at age sixty-seven after performing well for six years, everyone involved in his termination was “substantially younger,” and he was replaced by a “much younger” worker, therefore suffice – standing alone – to satisfy the Iqbal plausibility standard. See Littlejohn, 795 F.3d at 313 (complaint satisfied Iqbal where it alleged the plaintiff was replaced by a less qualified employee outside her protected group); Gonzalez v. Carestream Health, Inc., 520 F. App’x 8, 10 (2d Cir. 2013) (complaint stated a plausible ADEA claim where the plaintiff alleged he had stellar performance reviews and was fired at age sixty for pretextual reasons while substantially younger workers were retained). Other courts have held the same on similar facts. See, e.g., Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (holding that ADEA complaint alleged a plausible claim where it alleged the plaintiff was over 40 years old when she was terminated, that she was performing satisfactorily and had positive reviews, and “five younger comparators kept their jobs”).

Although it was not required to do so, we note that Franchino’s complaint did allege facts establishing a prima facie case of age discrimination, which confirms the plausibility of the complaint. See generally Littlejohn, 795 F.3d at 311 n.9 (recognizing that “‘the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim’”) (quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013)); Sheppard, 694 F.3d at 1050 n.2 (stating that although not required, “where a plaintiff pleads a plausible prima facie case of discrimination, the complaint will be sufficient to survive a motion to dismiss”).

To establish a prima facie case of age discrimination, a plaintiff must show (1) membership in the protected age group; (2) he was qualified; (3) he was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). As noted, this Court has recognized that the fourth prong is ordinarily satisfied by showing “replacement by a significantly younger person.” Id. at 135 (citing O’Connor, 517 U.S. at 313); see also Littlejohn, 795 F.3d at 313 (same). As discussed, Franchino alleged that he had exemplary performance reviews, was fired at age sixty-seven, and was replaced by someone “much younger.” These allegations establish a prima facie case of age discrimination and, therefore, state a plausible claim for relief. See Brown, 756 F.3d at 229 (holding that complaint stated a claim for relief where it “allege[d] facts sufficient to establish a prima facie case under McDonnell Douglas”).

In any event, Franchino alleged more than replacement by a “much younger” worker. Appx. 39 (R.25, p. 12) (stating that Franchino’s allegation that he was replaced by a much younger worker “without more, does not plausibly support an inference” of discrimination). As discussed, the complaint alleges that Franchino’s workplace was permeated with ageist cartoons, e-mails, and jokes directed at him, which co-workers and superiors perpetrated or condoned. These additional allegations further support the plausibility of Franchino’s complaint of age discrimination. See Littlejohn, 795 F.3d at 312 (inference of discrimination can arise from “invidious comments about others in the employee’s protected group”). The district court discounted these allegations on the ground that Franchino did not identify who made the jokes and comments or when these events occurred. Appx. 38 (R.25, p. 11). Factually, the court was incorrect, as Franchino alleged that Hill and Pizarro made or condoned age-related jokes, which were made “on conference calls, company sponsored functions[,] and at business meeting[s,]” and Franchino alleged that a Human Resources peer made jokes during meetings, which Hill and Pizarro attended. Appx. 4 (R.16, ¶¶ 21, 27-28). Legally, the court was also incorrect to require Franchino to allege who made the comments and when the comments and jokes were made, as the Supreme Court has repeatedly said that “detailed factual allegations” are not required. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Further, Franchino alleged that Mercado, a younger employee, was treated more favorably, which further supports an inference of discrimination. See Littlejohn, 795 F.3d at 312 (inference of discrimination can arise from “the more favorable treatment of employees not in the protected group”). Thus, “taken together,” the facts in Franchino’s complaint “plausibly paint a mosaic of [discrimination]” and an intent to force Franchino out because of his age. Vega, 801 F.3d at 92 (holding that the employer’s actions plausibly painted a “mosaic of retaliation,” which applies a “but for” standard of causation).

Finally, the court erred in reasoning that Franchino’s allegation that he was hired at age sixty-one “tends to undercut his claim of age discrimination.” Appx. 39 (R.25, p. 12). The “same-actor” inference applies where “the same actor hires a person already within the protected class, and then later fires that same person.” Carlton, 202 F.3d at 137. First, this inference comes into play on summary judgment, not on a motion to dismiss, and, in any event, it does not operate as an automatic bar to a plaintiff’s recovery. See id. at 138 (in ADEA case, rejecting employer’s argument that the same-actor inference justified grant of summary judgment). Moreover, it is extremely doubtful that the same-actor inference would even apply here because Franchino’s termination occurred six years after his hiring. See id. (“The seven years between Carlton’s hiring and firing significantly weakens the same actor inference. Consequently, that inference alone cannot support summary judgment in this case where circumstances could have changed over the course of time.”). Further, Franchino’s complaint does not allege who hired him (i.e., whether he was hired and fired by the same individuals), further undermining the court’s conclusion that Franchino’s complaint failed to state a claim for which relief can be granted because he pled he was hired when he was sixty-one years old.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed as to Franchino’s ADEA claim.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4724 (phone)

Annenoel.Occhialino@eeoc.gov

[1] EEOC takes no position with respect to any other issue presented in this appeal.

[2] Franchino also brought Title VII claims based on sex (male), ethnicity (Caucasian), and national origin (American). Because the EEOC is addressing only the ADEA claim, we discuss only the complaint’s allegations relating to the ADEA claim.

[3] Quoting Vega, the district court stated that an ADEA plaintiff must allege that age “was the ‘but-for’ cause of the employer’s adverse action.” Appx. 37 (R.25, p. 10) (emphasis added). As this Court recognized correctly in Vega, however, “but for” causation does not require that the discrimination was the only cause of an adverse action; rather, it requires “only that the adverse action would not have occurred in the absence of the [discriminatory] motive.” 801 F.3d at 91 (discussing the “but for” standard as to retaliation claim) (internal quotation marks and citation omitted).