Second Circuit – Judgment on the pleadings: Lively v. WAFRA

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United States Court of Appeals for the Second Circuit

Judgment on the pleadings

Employment termination – Age discrimination – But-for cause of termination

Lively v. WAFRA

20-2709

Judges Walker, Park, and Nardini

Background: The plaintiff was terminated by his former employer for violating company policies prohibiting sexual harassment in the workplace. He sued alleging that the stated basis for his termination was pretext and that the real reason was fired was age discrimination and retaliation. The defendants answered submitting evidence of the plaintiff’s improper workplace conduct and moved for a judgment on the pleadings. The plaintiff appealed from the dismissal of his claims.

Ruling: The Second Circuit affirmed. The court held that the district court should not have weighed the plausibility of competing allegations in the movant’s pleadings or considered evidence extrinsic to the non-movant’s pleading. The court, however, affirmed because the plaintiff’s complaint failed to plead that either his age or protected speech was a but-for cause of his termination.

Philip J. Furia, of Brewer, Attorneys & Counselors, for the plaintiff-appellant; Brette Tannenbaum, of Paul, Weiss, Rifkind, Wharton & Garrrison, for the defendants-appellees.