12-4202-cv
Carlos Gonzalez v. Carestream Health, Inc.


                                  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 2nd day of April, two thousand thirteen.

PRESENT: JOHN M. WALKER, JR.,
         GERARD E. LYNCH,
         SUSAN L. CARNEY,
                       Circuit Judges.

————————————————————————

CARLOS GONZALEZ,
                                             Plaintiff-Appellant,

                                v.                                         No. 12-4202-cv

CARESTREAM HEALTH, INC.,

                                             Defendant - Appellee.

————————————————————————

APPEARING FOR APPELLANT:                            CHRISTINA A. AGOLA, Christina A. Agola,
                                                    PLLC, Rochester, New York.

APPEARING FOR APPELLEES:                            JEFFREY J. CALABRESE, Harter Secrest &
                                                    Emery LLP, Rochester, New York.


          Appeal from the United States District Court for the Western District of New York

(Charles J. Siragusa, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is VACATED and the case is

REMANDED for further proceedings.

       Plaintiff-appellant Carlos Gonzalez appeals from the district court’s dismissal of

his claims brought pursuant to the Age Discrimination in Employment Act of 1967, 29

U.S.C. §§ 621-634 (“ADEA”), the New York State Human Rights Law, N.Y. Exec. Law.

§§ 290-301 (“NYSHRL”), and the Family and Medical Leave Act of 1993 (“FMLA”), 29

U.S.C. §§ 2601-2654. Gonzalez alleges that defendant-appellee Carestream Health, Inc.,

(“Carestream”) discriminated against him on the basis of his age and retaliated against

him for exercising his rights under the FMLA. On September 18, 2012, the United States

District Court for the Western District of New York granted Carestream’s motion to

dismiss the complaint in its entirety for failure to state a claim upon which relief may be

granted. Gonzalez now appeals, contending that the district court erred in granting the

motion. We agree. We assume the parties’ familiarity with the underlying facts, the

procedural history, and the issues on appeal which we reference only as necessary to

support our decision.

       We review de novo a district court’s judgment dismissing an action for failure to

state a claim. Harris v. Mills, 

, 71 (2d Cir. 2009). To survive a motion to

dismiss, a complaint alleging workplace discrimination and retaliation need not allege

specific facts establishing a prima facie case of discrimination under McDonnell Douglas

Corp. v. Green, 

 (1973). See Boykin v. KeyCorp, 

, 213 (2d Cir.


                                              2
2008), citing Swierkiewicz v. Sorema N.A., 

, 508 (2002). Nor must the

plaintiff allege facts sufficient to defeat summary judgment. See Swierkiewicz, 534 U.S.

at 511. At the pleading stage, we consider only whether the complaint includes factual

allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl.

Corp. v. Twombly, 

, 555 (2007). The standard is one of “flexible

plausibility,” Boykin, 521 F.3d at 213 (internal quotation mark omitted), sometimes

requiring a pleader to amplify his complaint with sufficient factual allegations to “nudge[]

[his] claims across the line from conceivable to plausible,” Twombly, 550 U.S. at 570. In

conducting this analysis, we must accept as true all plausible allegations of fact and draw

all reasonable inferences in favor of the plaintiff. Harris, 572 F.3d at 71.

       In light of the foregoing principles, we find that the district court erred not only in

dismissing the complaint for failure to state a claim, but also in basing its dismissal on

highly redacted and incomplete performance evaluations submitted by Carestream in its

responsive papers. First, Gonzalez’s complaint, on its face, was sufficient to give

Carestream fair notice of his claims and the grounds upon which they rested. See

Swierkiewicz, 534 U.S. at 512. To plead a claim under the ADEA, a plaintiff must

allege: (1) he is a member of a protected class; (2) his job performance was satisfactory;

(3) he suffered adverse employment action; and (4) the circumstances surrounding that

action permit an inference of discrimination based on age.1 See, e.g., Grady v. Affiliated


       1
        The elements of an age discrimination claim are essentially the same under the
ADEA and the NYSHRL, and courts apply the same standards for analyzing age
discrimination claims under both statutes. See, e.g., Lightfoot v. Union Carbide Corp., 110

                                               3
Cent., Inc., 

, 559 (2d Cir. 1997). Gonzalez’s complaint alleged that he is a

60-year old man with “stellar” performance evaluations, who was terminated for

pretextual reasons. When combined with his allegation that Carestream maintained

substantially younger workers, we find that no further amplification was necessary to

state a plausible claim of age discrimination. Cf. Boykin, 521 F.3d at 213-14 (reversing a

dismissal because “no amplification” was necessary in cases to which the Swierkiewicz

holding applies).

       Second, Gonzalez’s complaint also adequately states an FMLA retaliation claim.

Gonzalez alleged that following his FMLA leave, supervisors reprimanded him for failing

to complete tasks, placed him on two performance improvement plans, and eventually

terminated him.2 These allegations, which we must accept as true, are sufficient to render

Gonzalez’s retaliation claim plausible.

       Lastly, while a district court considering a motion under Rule 12(b)(6) may

consider documents upon which the complaint relies, see, e.g., Leonard F. v. Isr. Discount

Bank of N.Y., 

, 107 (2d Cir. 1999), the district court here exceeded the proper


F.3d 898, 913 (2d Cir. 1998).
       2
          We note that in making these allegations, Gonzalez has not merely relied on the
temporal proximity between his FMLA leave and his termination to support an inference of
retaliation. Because adverse employment action may take many forms,“alleged acts of
retaliation need to be considered both separately and in the aggregate, as even minor acts of
retaliation can be sufficiently substantial in gross as to be actionable.” Hicks v. Baines, 

, 165 (2d Cir. 2010) (citation omitted) (internal quotation marks omitted). At any
rate, there is no “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 alleged
retaliatory action.” Bucalo v. Shelter Island Union Free Sch. Dist., 

, 131 (2d
Cir. 2012) (internal quotation marks omitted).

                                               4
scope of its authority under that doctrine. We need not resolve whether Gonzalez’s

allegations that he maintained a “stellar work record” during his 34 years of service

incorporates, by reference, 34 years of performance evaluations. Whatever the outer

limits of this practice, it was error for the district court to dismiss the complaint on the

basis of two years’ worth of highly redacted performance evaluations and highly redacted

copies of two performance improvement plans selected, edited, and submitted by

Carestream.3

       For the foregoing reasons, the judgment of the district court is VACATED, and the

case is REMANDED for further proceedings.


                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




       3
        Although Gonzalez does not appear to have objected to district court’s consideration
of the documents submitted by Carestream, the district court’s use of the documents was
nonetheless improper. See Fed. R. Civ. P. 12(d) (“If, on a [12(b)(6) motion], matters outside
the pleading are presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.”) (emphasis added).

                                               5