Kassner v. 2nd Avenue Delicatessen Inc.
68 Fed. R. Serv. 3d 835, 2007 U.S. App. LEXIS 17523, 496 F.3d 229 (2007)
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Rule of Law:
An employment discrimination plaintiff is not required to plead a prima facie case of discrimination to survive a motion to dismiss, and a party's right to amend a pleading once 'as a matter of course' under Federal Rule of Civil Procedure 15(a) is subject to the district court's discretion to limit the time for amendment in a scheduling order issued under Rule 16(b), requiring a showing of 'good cause' if the amendment deadline has passed.
Facts:
- Diane Kassner (79) and Marsha Reiffe (61) were employed as waitresses at a restaurant operated by 2nd Avenue Delicatessen Inc. and its owner Jacob Lebewohl; Kassner had worked there since 1986, Reiffe since 1974.
- In November 2002, Marsha Reiffe filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC) against 2nd Avenue Delicatessen Inc. and Jacob Lebewohl.
- In December 2002, Diane Kassner filed an age discrimination claim with the EEOC against 2nd Avenue Delicatessen Inc. and Jacob Lebewohl.
- Defendants allegedly discriminated against Kassner and Reiffe by assigning them to work shifts and work stations where earnings were less than those assigned to younger waitresses.
- Jacob Lebewohl and his subordinates allegedly made repeated degrading comments about Kassner, including 'drop dead,' 'retire early,' 'take off all of that makeup,' and 'take off your wig.'
- Defendants allegedly retaliated against Reiffe by changing her work shift and work station after she complained about discrimination and requested her union to file a grievance.
- Jacob Lebewohl allegedly pressured plaintiffs to retire and, when they complained about their disparate treatment, pointed to the front of the restaurant and said 'there’s the door.'
- A proposed amended complaint alleged that 2nd Avenue Delicatessen Inc.'s employees/agents repeatedly and continually verbally and physically abused Reiffe, including one instance where she was spit on and kicked by a co-worker acting under management direction, and Reiffe was suspended for the incident while the co-worker was not disciplined.
Procedural Posture:
- Diane Kassner and Marsha Reiffe filed an action in the United States District Court for the Southern District of New York in September 2004, alleging age discrimination and retaliation under the ADEA, NYSHRL, and NYCHRL against 2nd Avenue Delicatessen Inc. and Jacob Lebewohl.
- The district court entered a Civil Case Management Plan and Scheduling Order on September 22, 2004, requiring any amendments to the pleadings to be made by February 1, 2005.
- Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted on October 12, 2004.
- Plaintiffs filed their opposition to the motion to dismiss and a cross-motion to amend their complaint on March 4, 2005, after the Rule 16(b) deadline.
- The district court (George B. Daniels, Judge) granted defendants’ motion to dismiss the complaint and denied plaintiffs’ cross-motion to amend the complaint, ruling that all of Kassner’s claims were time-barred, most of Reiffe’s claims were time-barred, and Reiffe’s remaining claims did not amount to an adverse employment action or had insufficient factual allegations to infer discrimination, and that allowing amendment would be futile.
- Plaintiffs-appellants appealed the district court's judgment to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a plaintiff alleging age discrimination need to plead a prima facie case to survive a motion to dismiss, and is the right to amend a pleading 'as a matter of course' under Federal Rule of Civil Procedure 15(a) subject to a Rule 16(b) scheduling order deadline, requiring 'good cause' after that deadline?
Opinions:
Majority - STANCEU, Judge
No, an employment discrimination plaintiff does not need to plead a prima facie case of discrimination to survive a motion to dismiss, and yes, the right to amend a pleading once as a matter of course under Rule 15(a) is subject to the district court's discretion to limit the time for amendment in a Rule 16(b) scheduling order. The court reviewed the district court's dismissal de novo, affirming that under Federal Rule of Civil Procedure 8(a)(2) and Swierkiewicz v. Sorema N.A., an employment discrimination plaintiff need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief" to give fair notice to the defendant, not a prima facie case. The court found that the district court erred in dismissing some of Reiffe's timely claims of discriminatory work station and shift changes, concluding that a waiter or waitress repeatedly assigned to less desirable work stations and shifts could obtain a remedy for age discrimination. Kassner's hostile work environment claim was deemed sufficiently pleaded given the allegations of repeated degrading comments. Reiffe's retaliation claims based on work changes following her union grievance were also found sufficient to withstand dismissal. However, Reiffe's hostile work environment claims were found to be too vague. Regarding the denial of the motion to amend, the court clarified that while Rule 15(a) allows a party to amend a pleading once "as a matter of course" before a responsive pleading is served, this right is qualified by the district court's scheduling order under Rule 16(b). Once the Rule 16(b) deadline for amendments has passed, a party must demonstrate "good cause" to modify the scheduling order to amend pleadings, even if no responsive pleading has yet been filed. The district court had erroneously denied the amendment solely on the ground of "futility" based on an incorrect understanding of the pleading standard for some claims, and failed to exercise its discretion under Rule 16(b) to determine if plaintiffs had shown diligence or other factors constituting good cause. The proposed amended complaint, in fact, contained sufficient new allegations to cure some deficiencies.
Analysis:
This case reinforces the lenient 'notice pleading' standard of Federal Rule of Civil Procedure 8(a)(2) for employment discrimination cases, rejecting any implicit heightened pleading requirements for such claims. It clarifies the critical interaction between Rule 15(a), which allows one amendment 'as a matter of course,' and Rule 16(b) scheduling orders, establishing that an amendment deadline set by a court under Rule 16(b) generally controls, requiring a showing of 'good cause' for any amendment sought after that deadline. The decision provides essential guidance on what constitutes a sufficiently pleaded 'adverse employment action' and 'hostile work environment' at the motion to dismiss stage, particularly in the service industry context, emphasizing that courts must draw all reasonable inferences in favor of the plaintiff.
