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Zucker v. Five Towns College

August 18, 2010


The opinion of the court was delivered by: Seybert, District Judge


On November 10, 2009, Plaintiff Sheldon Zucker filed suit against Defendants Five Towns College ("the College") and Dr. Martin Cohen, asserting age discrimination claims under the ADEA and the New York State Human Rights Law. Defendants have moved to dismiss. For the following reasons, that motion is GRANTED.


Mr. Zucker is a 69 year old man. (Compl. ¶ 1.) From September 1995 until January 1998, he worked for the College as an admissions field representative. (Id.) In January 1998, he became Director of Recruitment Services, and held that post until his January 2008 termination. (Id.)

At all times, Mr. Zucker performed his job competently. (Id. ¶ 11.) Due in part to his efforts, the College increased its enrollment from 650 to 1100 students. (Id. ¶ 14.) In return, the College promoted him in 1998 and gave him yearly raises. (Id.) The College never disciplined him or gave him a letter stating that his work performance was unsatisfactory or deficient in any respect. (Id.)

Mr. Zucker's career took a downturn in 2007 when Dr. Cohen took over as Dean of Student Admissions. (Id. at ¶ 15.) Dr. Cohen looked for any excuse to admonish him. (Id.) For instance, Dr. Cohen falsely accused Mr. Zucker of chatting with another admissions field representative during a college fair while failing to pay attention to the people walking by. (Id.)

On January 23, 2008, Defendants fired Mr. Zucker. (Id. at ¶ 17.) Defendants gave Mr. Zucker no reason for terminating him. (Id. at ¶ 17.) Defendants then hired a woman who is 38 years younger to replace him. (Id.)


I. Standard of Review on a Motion to Dismiss

In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court accepts all factual allegations as true, and draws all reasonable inferences in the plaintiff's favor, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

II. Application to Mr. Zucker's Claims

This is a pretty straightforward case. Defendants contend that Mr. Zucker's Complaint fails to comply with the Iqbal/Twombly "plausibility" standard because it identifies no facts suggesting age discrimination other than the College replacing Mr. Zucker with a much younger person. In response, Mr. Zucker argues that his satisfactory work performance combined with his much younger replacement suffice to render his age discrimination claims "more than 'facially plausible.'" (Pl. Opp. Br. at 5).

Post-Iqbal/Twombly, Second Circuit district courts have split about whether, in an age discrimination case, a plaintiff's allegations that he performed his job satisfactorily but was nevertheless replaced by someone much younger suffice to state a claim. Some courts have found that such allegations are enough to satisfy the plausibility standard.*fn1 But other courts have disagreed.*fn2

The Court sides with the second view, for two reasons. First, and most importantly, the first view fails to appreciate Iqbal/Twombly's requirement that a complaint contain enough factual allegations to "nudge[]" claims "across the line from conceivable to plausible." Iqbal, 129 S.Ct. at 1951. As the Supreme Court has recently recognized in another context, employment decisions "by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments." Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 128 S.Ct. 2146, 2154, 170 L.Ed. 2d 975 (2008). Given that employment decisions involve "subjective, individualized assessments," the College could have had dozens of possible reasons for terminating Mr. Zucker, and for chosing a particular replacement. So, without actual facts suggesting discriminatory animus, age discrimination is just one "possibility" for the College's actions. Iqbal, 129 S.Ct. at 1949. And, consequently, allegations that Mr. Zucker performed his job ...

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