US Supreme Court Briefs

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BECITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TOTHE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, INA RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RESJUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit,held at the United States Courthouse, Foley Square, in the City of New York, onthe 12th day of March, two thousand and one.

PRESENT:

Hon. John M. Walker, Jr.,
Chief Judge,
Hon. James L. Oakes,
Hon. Guido Calabresi,
Circuit Judges.

AKOS SWIERKIEWICZ,
Plaintiff-Appellant,

v.

No. 00-9010
SOREMA, N.A.,
Defendant-Appellee.

APPEARING FOR APPELLANT: LAUREN REITER BRODY, Esq. Rosenman & Colin, LLP NewYork, NY

APPEARING FOR APPELLEE: HAROLD I. GOODMAN, Esq. Raynes, McCarty, Binder, Ross &Mundy Philadelphia, PA

Appeal from the United States District Court for the Southern District of NewYork (Preska, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that thejudgment of said district court be and it hereby is AFFIRMED.

Plaintiff-appellant Akos Swierkiewicz appeals from an August 1, 2000 judgment ofthe United States District Court for the Southern District of New York (Preska,J.) granting Sorema's motion to dismiss appellant's claims of discriminationbased on national origin, pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. 2000(e); and age discrimination, pursuant to the Age Discriminationin Employment Act of 1967, 29 U.S.C. 626(c)(1). On appeal, Swierkiewicz arguesthat the district erred in dismissing the complaint because the district courtimproperly applied a heightened pleading requirement and, in the alternative, ifhe needed to comply with a heightened pleading requirement, he has done so andthat dismissal was therefore unwarranted.

Swierkiewicz, of Hungarian descent, has been a United States citizen since 1970.Defendant-appellee Sorema is a reinsurance company headquartered in New York andprincipally owned and controlled by a French parent company. In April 1989, Swierkiewicz, at the age of 43, began working for Sorema as a Senior VicePresident and Chief Underwriting Officer. In February 1995, Francois Chavel,Sorema's President and Chief Executive Officer, shifted Swierkiewicz's jobresponsibilities to marketing and services and transferred the bulk ofSwierkiewicz's underwriting responsibilities to Nicolas Papadopoulo, a32-year-old French national. At the time of this transition, Chavel stated thathe wanted to "energize" the underwriting department. Swierkiewicz states thatover the next two years he was "isolated by Mr. Chaval excluded from businessdecisions and meetings and denied the opportunity to reach his true potential atSorema."

In April 1997, Swierkiewicz wrote a memorandum to Mr. Chaval outlining thesegrievances and concluding that he had no choice but to leave the companyproviding that a suitable severance package was provided. Two weeks later,Sorema's general counsel informed Swierkiewicz that Swierkiewicz could eitherresign without a severance package or be terminated. Later that same day, uponSwierkiewicz's refusal to resign, Sorema fired him.

We review the district court's grant of motion to dismiss de novo. See Tarshisv. Reise Org., 211 F.3d 30, 35 (2d Cir. 2000).

"It is well settled in this Circuit that a complaint consisting of nothing morethan naked assertions, and setting forth no facts upon which a court could finda violation of the Civil Rights Acts, fails to state a claim under Rule12(b)(6)." Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372(2d Cir. 1978); see also, Tarshis, 211 F.3d at 35.

To plead discrimination based on national origin, a plaintiff must allege (1)membership, (2) qualification for the job in question, (3) an adverse employmentaction and (4) circumstances that give support to an inference ofdiscrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).With respect to national origin, the only circumstances Swierkiewicz pled arethat he is Hungarian, others at Sorema are French, and the conclusory allegationthat his termination was motivated by national origin discrimination. We agreewith the district court that these allegations are insufficient as a matter oflaw to raise an inference of discrimination.

To plead discrimination based on age, a plaintiff must allege that (1) he is inthe protected age group, (2) he is qualified for the job, (3) he was dischargedand (4) the discharge occurred under the circumstances giving rise to aninference of age discrimination. See Hollander v. American Cyanamid Co., 172F.3d 192, 198 (2d Cir.), cert. denied, 528 U.S. 965 (1999). The onlycircumstance that Swierkiewicz alleges gives rise to an inference of agediscrimination is Chavel's comment in 1995 that Chavel wanted to "energize" theunderwriting department. We agree with the district court that this allegationis insufficient as a matter of law to raise an inference of discrimination.

We have considered Swierkiewicz's remaining arguments and consider them to bewithout merit. For the foregoing reasons, we AFFIRM the judgment of the districtcourt.

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