The Honorable Timothy C. Stanceu, United States Court of International Trade,… v. 2nd Avenue Delicatessen Inc. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT…

* The Honorable Timothy C. Stanceu, United States Court of
International Trade, sitting by designation.
05-4237-cv
Kassner v. 2nd Avenue Delicatessen Inc.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2005 3
(Argued: February 17, 2006 Decided: July 24, 2007) 4
Docket No. 05-4237-cv 5
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DIANE KASSNER and MARSHA REIFFE, 7
Plaintiffs-Appellants, 8
JOSEPH FARRINO, 9
Plaintiff, 10
–- v. –- 11
2nd AVENUE DELICATESSEN INC. and JACOB LEBEWOHL, in his official 12
capacity as Owner and General Manager of the 2nd Avenue 13
Delicatessen Inc., 14
Defendants-Appellees. 15
------------------------------------------------------ 16
Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge.* 17
Plaintiffs-appellants, who sued alleging age discrimination 18
and retaliation by defendants-appellees in violation of Federal, 19
New York State, and New York City laws, appeal the judgment of 20
the United States District Court for the Southern District of New 21
York (George B. Daniels, Judge) granting defendants’ motion under 22

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2
Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs’ 1
complaint for failure to state a claim upon which relief can be 2
granted and denying as futile plaintiffs’ cross-motion to amend 3
that complaint. 4
AFFIRMED IN PART and VACATED AND REMANDED IN PART. 5
Lee Nuwesra (Jerald Abrams, on the 6
brief), Law Office of Lee Nuwesra, 7
New York, New York, for Plaintiffs- 8
Appellants. 9
Kenneth Kirschner (Michael E. 10
DeLarco, on the brief), Heller 11
Ehrman LLP, New York, New York, for 12
Defendants-Appellees. 13
STANCEU, Judge: 14
Plaintiffs-appellants Diane Kassner and Marsha Reiffe 15
brought an action in the United States District Court for the 16
Southern District of New York in September 2004, alleging age 17
discrimination on the basis of adverse employment actions and 18
retaliation in violation of the Age Discrimination in Employment 19
Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq., the 20
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 21
et seq., and the New York City Human Rights Law (“NYCHRL”), 22
N.Y.C. Admin. Code § 8-101 et seq. They appeal from the district 23
court’s judgment in favor of defendants-appellees 2nd Avenue 24
Delicatessen Inc. and its owner and general manager, Jacob 25
Lebewohl, entered on July 8, 2005. 26
The district court (George B. Daniels, Judge) granted 27
defendants’ motion to dismiss the complaint for failure to state 28

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3
a claim upon which relief can be granted and denied as futile 1
plaintiffs’ cross-motion to amend the complaint. The district 2
court ruled that all of Kassner’s claims were time-barred under 3
applicable statutes of limitations, that most of Reiffe’s claims 4
also were time-barred, and that Reiffe’s remaining claims either 5
did not amount to an adverse employment action or were supported 6
by insufficient factual allegations from which the court could 7
infer age discrimination. The district court concluded, further, 8
that allowing plaintiffs to amend the complaint would be futile 9
because plaintiffs’ proposed amended complaint alleged few new 10
facts and because, in restating the same alleged acts by 11
defendants without the references to specific dates that appeared 12
in the complaint as filed, the proposed amended complaint could 13
hide, but not cure, any timeliness deficiencies. 14
We conclude that certain of plaintiffs’ claims were 15
supported by factual allegations sufficient to withstand a motion 16
to dismiss for failure to state a claim upon which relief can be 17
granted. We further conclude that the district court erred in 18
denying the motion to amend the complaint on the ground of 19
futility and direct that the district court, on remand, exercise 20
its discretion under Federal Rule of Civil Procedure 16(b) to 21
determine whether the proposed amendment or different amendments 22
to the complaint should be allowed. For these reasons, we vacate 23
the judgment dismissing the action and remand the matter to the 24
district court for further proceedings in accordance with this 25
Opinion. 26

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4
I. BACKGROUND 1
When they commenced their action in district court in 2004, 2
plaintiffs Kassner and Reiffe were 79 and 61 years of age, 3
respectively, and were employed as waitresses in a restaurant 4
operated by defendant 2nd Avenue Delicatessen Inc. Kassner had 5
worked for 2nd Avenue Delicatessen Inc. since 1986; Reiffe began 6
her employment there in 1974. On November 26, 2002 and 7
December 20, 2002, prior to bringing this action, Reiffe and 8
Kassner, respectively, filed claims of age discrimination with 9
the Equal Employment Opportunity Commission (“EEOC”) against 2nd 10
Avenue Delicatessen Inc. and Jacob Lebewohl. See Br. for Defs.- 11
Appellees 5. The EEOC issued each plaintiff a right-to-sue form 12
letter dated June 18, 2004. Id. at 6. 13
Plaintiffs filed their complaint in the United States 14
District Court for the Southern District of New York on 15
September 13, 2004, alleging that defendants violated the ADEA, 16
the NYSHRL, and the NYCHRL by discriminating against plaintiffs 17
on account of age and by retaliating against plaintiffs for 18
complaining about age discrimination and for bringing charges 19
alleging age discrimination. The complaint contains various 20
allegations to the effect that defendants discriminated against 21
plaintiffs by assigning them to work shifts and work stations at 22
which earnings were less than those to which younger waitresses 23
were assigned. Compl. ¶¶ 12-13, 21-23. The complaint alleged 24
that defendant Lebewohl and several of his subordinates 25

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5
repeatedly made degrading comments about Kassner, “including, but 1
not limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of 2
that make-up[,]’ and ‘take off your wig.’” Id. ¶ 14. The 3
complaint further alleged that defendants retaliated against 4
Reiffe by changing her work shift and work station. Id. 5
¶¶ 20-23. In addition, the complaint claimed that defendant 6
Lebewohl pressured plaintiffs to retire and pointed to the front 7
of the restaurant and said “there’s the door” when they 8
complained about their disparate treatment. Id. ¶¶ 44-45, 50-51, 9
56-57 (emphasis omitted). Plaintiffs sought injunctive relief, 10
lost earnings, compensatory and punitive damages, and an award 11
for attorneys’ fees. Id. ¶ 2, PRAYER FOR RELIEF. 12
On September 22, 2004, nine days after plaintiffs filed the 13
complaint, the district court entered a Civil Case Management 14
Plan and Scheduling Order, pursuant to Rules 16 and 26(f) of the 15
Federal Rules of Civil Procedure. The Case Management Plan and 16
Scheduling Order limited the time for amendment of the pleadings, 17
requiring any amendments to the pleadings to be made by 18
February 1, 2005. 19
Defendants did not file or serve an answer to the complaint 20
but instead, on October 12, 2004, moved to dismiss under Federal 21
Rule of Civil Procedure 12(b)(6) for failure to state a claim 22
upon which relief can be granted. During approximately the next 23
four months, plaintiffs sought and were granted extensions of 24
time in which to respond to the motion to dismiss, to engage in 25
settlement discussions with defendants, and to obtain new 26

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6
counsel. On March 4, 2005, plaintiffs, through their new 1
counsel, timely filed their opposition to the motion to dismiss 2
and moved to amend their complaint. 3
In a judgment entered on July 8, 2005, the district court 4
granted defendants’ motion to dismiss the complaint for failure 5
to state a claim upon which relief can be granted and denied 6
plaintiffs’ cross-motion to amend the complaint. In its 7
Memorandum Decision and Order, dated July 5, 2005, the district 8
court concluded that plaintiffs’ ADEA claims were time-barred to 9
the extent they were based on discrete acts that occurred before 10
February 23, 2002 because the ADEA requires filing of an 11
administrative complaint with the EEOC within 300 days after the 12
alleged unlawful employment practice. Mem. Dec. & Order at 3; 13
see 29 U.S.C. § 626(d) (2000). The district court also found 14
plaintiffs’ NYSHRL and NYCHRL claims to be time-barred by the 15
applicable three-year statutes of limitations to the extent they 16
were based on discrete acts occurring before September 13, 2001. 17
See Mem. Dec. & Order at 3-4. The district court concluded that 18
all of Kassner’s claims were time-barred because they were based 19
on alleged discrete acts occurring in 1999. Id. at 4. Moreover, 20
the district court ruled that the only allegations by Reiffe of 21
discriminatory acts that were not time-barred “either do not 22
amount to an adverse employment action or are insufficient 23
factual allegations to infer that those actions were based upon 24
her age.” Id. at 4-5. 25

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7
In denying plaintiffs’ cross-motion to amend the complaint, 1
the district court noted that the proposed amended complaint 2
“adds few new factual allegations” and “simply drops any 3
reference to applicable dates in an attempt to vaguely and 4
generally refer to events without any time reference.” Id. at 6. 5
The district court concluded that “[s]uch a proposed amendment 6
may hide, but cannot cure, any time-barred deficiencies. It 7
therefore would be futile.” Id. 8
Plaintiffs-appellants subsequently brought this appeal and, 9
in connection therewith, request legal fees and costs. 10
II. DISCUSSION 11
A. The District Court Erred in Granting Defendants’ 12
Rule 12(b)(6) Motion to Dismiss the Complaint in the Entirety 13
We review de novo the district court’s grant of a motion to 14
dismiss. Dougherty v. Town of N. Hempstead Bd. of Zoning 15
Appeals, 282 F.3d 83, 87 (2d Cir. 2002). In considering a motion 16
to dismiss for failure to state a claim upon which relief can be 17
granted, the court is to accept as true all facts alleged in the 18
complaint. Id. The court is to draw all reasonable inferences 19
in favor of the plaintiff. Fernandez v. Chertoff, 471 F.3d 45, 20
51 (2d Cir. 2006); see also Leibowitz v. Cornell Univ., 445 F.3d 21
586, 591-92 (2d Cir. 2006). The Supreme Court has held that, 22
under the notice system of pleading established by the Federal 23
Rules of Civil Procedure, “an employment discrimination plaintiff 24
need not plead a prima facie case of discrimination.” 25
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Under 26

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8
Rule 8(a)(2), the pleading requirement is satisfied by “a short 1
and plain statement of the claim showing that the pleader is 2
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement 3
must simply ‘give the defendant fair notice of what the 4
plaintiff’s claim is and the grounds upon which it rests.’” 5
Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 6
41, 47 (1957)); Leibowitz, 445 F.3d at 591. The Supreme Court 7
has rejected the argument that allowing lawsuits based on 8
conclusory allegations of discrimination would encourage 9
disgruntled employees to sue and thereby overburden the courts. 10
“Whatever the practical merits of this argument, the Federal 11
Rules do not contain a heightened pleading standard for 12
employment discrimination suits.” Swierkiewicz, 534 U.S. 13
at 514-15. Therefore, in considering such a motion to dismiss, 14
"[t]he appropriate inquiry is not whether a plaintiff is likely 15
to prevail, but whether he is entitled to offer evidence to 16
support his claims." Fernandez, 471 F.3d at 51 (internal 17
quotation marks and citation omitted). 18
In reviewing the complaint and thereby dismissing 19
plaintiffs’ age discrimination claims, the district court 20
considered many discrete acts to be time-barred. A plaintiff 21
seeking to recover under the ADEA must file a discrimination 22
charge with a state agency within 300 days of the occurrence of 23
the allegedly unlawful employment practice. See 29 U.S.C. 24
§ 626(d)(2). The district court concluded that plaintiffs’ ADEA 25
claims were time-barred to the extent they were based on discrete 26

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1 The complaint alleges that both plaintiffs filed their
EEOC complaints “on or about December 20, 2002.” Compl. ¶ 3.
According to the copies of the EEOC complaints in the record,
Kassner’s EEOC charge was filed on that date, but Reiffe’s EEOC
charge actually was filed 24 days earlier, on November 26, 2002.
Accordingly, Reiffe’s ADEA claims are time-barred if based on
discrete acts occurring before January 30, 2002.
9
acts that occurred before February 23, 2002, based on a filing 1
date of December 20, 2002 for the administrative EEOC 2
complaints.1 Mem. Dec. & Order at 3. Because claims under the 3
NYSHRL and the NYCHRL are time-barred unless filed within three 4
years of the alleged discriminatory acts, the district court also 5
ruled that such claims are time-barred to the extent they were 6
based on discrete acts occurring before September 13, 2001. Id. 7
at 3-4; see N.Y. Exec. Law § 296; N.Y. C.P.L.R. § 214(2) 8
(McKinney 2003); N.Y.C. Admin. Code § 8-502(d). 9
A prima facie case of age discrimination requires that 10
plaintiffs demonstrate membership in a protected class, 11
qualification for their position, an adverse employment action, 12
and circumstances that support an inference of age 13
discrimination. Galabya v. New York City Bd. of Educ., 202 F.3d 14
636, 639 (2d Cir. 2000). “A plaintiff sustains an adverse 15
employment action if he or she endures a ‘materially adverse 16
change’ in the terms and conditions of employment. To be 17
‘materially adverse’ a change in working conditions must be ‘more 18
disruptive than a mere inconvenience or an alteration of job 19
responsibilities.’” Id. at 640 (quoting Crady v. Liberty Nat'l 20
Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)) (citation 21

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10
omitted). A change that is “materially adverse” could consist 1
of, inter alia, “a demotion evidenced by a decrease in wage or 2
salary, a less distinguished title, a material loss of benefits, 3
significantly diminished material responsibilities, or other 4
indices . . . unique to a particular situation.” Id. (omission 5
in original) (internal quotation marks and citation omitted). At 6
this stage of litigation, plaintiffs need not plead a prima facie 7
case and may withstand a motion to dismiss by meeting a lesser 8
standard. Plaintiffs need only comply with Rule 8(a)(2) by 9
providing a short and plain statement of the claim that shows 10
that plaintiffs are entitled to relief and that gives the 11
defendants fair notice of plaintiffs’ claims of age 12
discrimination and the grounds upon which those claims rest. See 13
Swierkiewicz, 534 U.S. at 512. 14
We agree with the district court that certain acts alleged 15
in the complaint do not plead causes of action that were timely 16
under the applicable statutes of limitations. Nevertheless, the 17
complaint contains other allegations that, when construed 18
together to draw all reasonable inferences in favor of 19
plaintiffs, state valid causes of action under the ADEA, the 20
NYSHRL, and the NYCHRL. As to the discrete acts for which the 21
district court considered claims to be timely, the district court 22
observed that “[p]laintiffs primarily complain of a number of 23
shift or work station changes that reduced their potential for 24
tip income.” Mem. Dec. & Order at 5. With respect to such 25

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11
“shift or work station changes,” the district court concluded 1
that “none of the acts complained of by plaintiffs rise to the 2
level of a material adverse employment action.” Id. We decline 3
to hold that a waiter or waitress repeatedly assigned to less 4
desirable work stations and work shifts than younger wait-staff 5
can never, under any proven set of facts, obtain a remedy for age 6
discrimination in employment. 7
We now turn to the allegations in the complaint relevant to 8
each plaintiff’s claim of age discrimination based on changes in 9
work stations and work shifts. Kassner alleged in the complaint 10
that “[i]n 1999, Defendant, Lebewohl, permanently assigned 11
Ms. Kassner to work station six, located by the toilet and 12
kitchen” and that “[c]ustomers do not sit at station six because 13
of its location.” Compl. ¶ 12. This allegation of a permanent 14
assignment to an undesirable work station is time-barred under 15
the ADEA, the NYSHRL, and the NYCHRL. “A discrete retaliatory or 16
discriminatory act occurred on the day that it happened.” Nat’l 17
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) 18
(internal quotation marks omitted). As we have stated 19
previously, a completed act such as a discontinuance of a 20
particular job assignment is not of a continuing nature. 21
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 22
1997). The district court was correct in dismissing any claim 23
arising from this factual allegation. The complaint also alleges 24

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12
that “[i]n 1999, Lebewohl also refused to assign Ms. Kassner any 1
weekend shifts. However, younger waitresses are rotated amongst 2
the better stations and assigned to weekend shifts, which is when 3
the most money is made.” Compl. ¶ 13. Because this allegation 4
also is pleaded as having occurred in 1999, it too is time-barred 5
under the ADEA, the NYSHRL, and the NYCHRL. We conclude, 6
therefore, that the district court correctly ruled that Kassner 7
had made no timely allegations of employment-related age 8
discrimination based on changes in work stations and work shifts. 9
We conclude, as did the district court, that not all of the 10
allegations of changes in work stations and work shifts affecting 11
Reiffe are untimely. The complaint alleges that in 1999 12
defendant Lebewohl discriminated against Reiffe by making a 13
change in Reiffe’s schedule that removed her from a Sunday shift. 14
Id. ¶ 17. In referring to a discrete act occurring in 1999, this 15
allegation is time-barred under the ADEA, the NYSHRL, and the 16
NYCHRL. Another allegation in the complaint is of a 17
discriminatory assignment, for four consecutive days in January 18
2002, to the counter station, which the complaint alleges to be 19
the least profitable station and to which only new workers 20
allegedly are usually assigned. Id. ¶ 21. This alleged 21
assignment is one for which relief is not time-barred under the 22
NYSHRL and the NYCHRL. On the face of the complaint, it is not 23
possible to determine whether relief would be time-barred under 24
the ADEA; the allegation would be timely under the ADEA if Reiffe 25

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13
were able to show that the assignment was made on or after 1
January 30, 2002. The complaint also includes the allegation 2
that Lebewohl, in September 2002, discriminated against Reiffe by 3
changing Reiffe’s station and her hours on Saturdays such that 4
she was removed from the early dinner shift. Id. ¶ 22. It 5
further alleges that in September 2002 her hours on Tuesdays, 6
which were 11:00 a.m. until 3:45 p.m., were changed to 12:00 p.m. 7
until 3:00 p.m. Id. ¶ 23. These allegations of acts occurring 8
in September 2002 do not refer to acts for which relief is barred 9
under the various statutes of limitations. 10
Viewed absent the time-barred allegations, Reiffe’s claims 11
that defendants discriminated against her in her station and 12
shift assignments are based on an allegation that she was 13
assigned in January 2002 to the least desirable station, the 14
counter, for four consecutive days and an allegation that her 15
Tuesday and Saturday station and shift assignments were changed 16
in September 2002. The complaint fails to allege specifically 17
that the September 2002 station and shift assignments were less 18
favorable than those to which Reiffe previously was assigned. 19
However, in the context of the complaint as a whole we are able 20
to draw an inference in favor of Reiffe that the new station and 21
shift assignments were less desirable than the previous ones and 22
less desirable than those to which younger workers were assigned. 23
We also may infer from the language of the complaint that the 24
changes continued after September 2002. Reiffe’s timely claims 25

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14
relating to changes in shifts are limited to an allegation that 1
in September 2002 her hours were reduced on Tuesdays and also on 2
Saturdays, when she was removed from the early dinner shift. The 3
significance of the reduction in hours on Tuesdays is not 4
apparent from the face of the complaint; whether this alleged 5
action was adverse is a matter of speculation. See Bell Atlantic 6
Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (“Factual 7
allegations must be enough to raise a right to relief above the 8
speculative level.”). We may infer the significance of the 9
change in the Saturday hours based on the allegation in the 10
complaint that the weekend shifts were the most lucrative shifts. 11
Compl. ¶ 13. We also may infer that the change in Reiffe’s 12
Saturday hours continued after September 2002. 13
The district court concluded that the timely claims on 14
behalf of Reiffe “either do not amount to an adverse employment 15
action or are insufficient factual allegations to infer that 16
those actions were based upon her age.” Mem. Dec. & Order at 5. 17
The timely allegations made on behalf of Reiffe are limited in 18
scope and therefore might be construed as insufficient to 19
constitute a “materially adverse change” in the terms and 20
conditions of employment, see Galabya, 202 F.3d at 640, were we 21
not required to draw all reasonable inferences on behalf of the 22
plaintiff. The inferences in favor of Reiffe that we discussed 23
previously cause us to conclude that Reiffe’s claims of age 24
discrimination based on certain changes in work station and work 25
shift assignments, although limited, are sufficient to withstand 26

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15
a motion to dismiss under the standard articulated in 1
Swierkiewicz, 534 U.S. at 512. We conclude, therefore, that the 2
district court should have allowed Reiffe to proceed on claims 3
that certain alterations made to her work station and work 4
schedule in January 2002 and September 2002, i.e., those for 5
which relief is not time-barred, constituted employment-related 6
age discrimination. 7
We next consider the issue of discrimination based on a 8
hostile work environment. Although the complaint does not 9
explicitly allege discrimination based on a hostile work 10
environment, the complaint alleges “continued harassment” of 11
Kassner and alleges facts from which we may infer pleading of 12
hostile work environment claims as to her; the complaint states 13
that “Lebewohl and several of his subordinates have repeatedly 14
made degrading comments towards Ms. Kassner, including, but not 15
limited to, ‘drop dead,’ ‘retire early,’ ‘take off all of that 16
make-up[,]’ and ‘take off your wig.’” Compl. ¶¶ 14-15. An 17
actionable discrimination claim based on hostile work environment 18
under the ADEA is one for which “the workplace is ‘permeated with 19
discriminatory intimidation, ridicule, and insult that is 20
sufficiently pervasive to alter the conditions of the victim’s 21
employment. . . .’” Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 22
318 (2d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510 23

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16
U.S. 17, 21 (1993)) (omission in original). The determination of 1
hostility depends on whether a reasonable person would find the 2
work environment to be hostile and whether plaintiffs 3
subjectively perceived it to be so. Id. Minor incidents do not 4
merit relief. Id. Plaintiffs need not present a list of 5
specific acts. Id. To establish a hostile work environment, 6
plaintiffs must “prove that the incidents were sufficiently 7
continuous and concerted to be considered pervasive.” Id. 8
(internal quotation marks and citation omitted). “A plaintiff 9
must also demonstrate that she was subjected to the hostility 10
because of her membership in a protected class.” Id. At the 11
pleading stage of the case, however, plaintiffs need not plead a 12
prima facie case of discrimination based on hostile work 13
environment, so long as they provide in the complaint a short and 14
plain statement of the claim that shows that plaintiffs are 15
entitled to relief and that gives the defendant fair notice of 16
plaintiffs’ claim for hostile work environment and the grounds 17
upon which that claim rests. See Swierkiewicz, 534 U.S. at 512. 18
As to Kassner, the allegation of a hostile work environment is 19
sufficient for this purpose and thus entitles Kassner to proceed 20
to discovery and put on evidence in support of her hostile work 21
environment claims. To prevail, Kassner will have to persuade 22
the factfinder that, inter alia, the comments the complaint 23

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17
attributes to Lebewohl and subordinates actually were age-related. 1
As to Reiffe, however, we consider the factual allegations 2
in the complaint to be insufficient to state a claim of hostile 3
work environment. The complaint alleges that defendants 4
“pressur[ed] plaintiffs to retire from employment.” See Compl. 5
¶¶ 45, 51, 57. This allegation, even when aided by inferences in 6
favor of Reiffe, is so vague that it fails to provide defendants 7
with fair notice of the factual grounds supporting an implied 8
claim that Reiffe was subjected to a hostile work environment. 9
The complaint alleges no specific facts as to what was done to 10
pressure Reiffe to retire. The complaint does contain an 11
allegation, which was timely under the NYSHRL and the NYCHRL but 12
not under the ADEA, that the manager of 2nd Avenue Delicatessen 13
Inc., in December 2001, suspended Reiffe without pay for an 14
incident without conducting a proper investigation and, when 15
Reiffe objected to the suspension, threatened to subject Reiffe 16
to arrest if she appeared in the restaurant. Id. ¶ 18. The 17
complaint, however, fails to allege any facts about the 18
circumstances surrounding the suspension and the incident that 19
gave rise to it. The allegations made on behalf of Reiffe, if 20
assumed to be true, would not be sufficient to justify a 21
conclusion that Reiffe is entitled to a remedy based on a hostile 22
work environment claim. 23

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2 The NYSHRL and the NYCHRL contain similar provisions that
describe retaliation as an unlawful discriminatory practice. See
N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7).
18
We turn next to the pleading of plaintiffs’ retaliation 1
claims. The ADEA prohibits an employer from discriminating 2
against an individual employee because of the individual’s 3
opposing any practice made unlawful under the statute. 29 U.S.C. 4
§ 623(d).2 Plaintiffs allege that they complained to defendants 5
about their disparate treatment and that defendant Lebewohl did 6
not act to remedy the situation but instead pointed to the front 7
of the restaurant and stated “There’s the door!” Compl. ¶¶ 44, 8
50, 56. The complaint alleges vaguely that defendants 9
discriminated against plaintiffs because they opposed acts 10
unlawful under the ADEA, made charges, and participated in 11
proceedings in support of their ADEA rights. Id. ¶¶ 42-43, 12
48-49, 54-55. Notably, the complaint fails to identify any 13
specific acts by defendants against Kassner that are alleged to 14
have been taken in retaliation for Kassner’s complaints or for 15
her filing of discrimination charges with the EEOC in December 16
2002. We conclude, therefore, that the complaint fails to state 17
a retaliation claim on behalf of Kassner under the ADEA, the 18
NYSHRL, or the NYCHRL. 19
We reach the opposite conclusion with respect to certain 20
retaliation claims made on behalf of Reiffe. The complaint 21

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19
alleges that retaliatory assignments to work stations and work 1
shifts began after Reiffe requested that her union file a 2
grievance on her behalf for the incident in December 2001 when 3
Reiffe was suspended without pay. Id. ¶¶ 18-20. The complaint 4
asserts retaliation claims based on the same alleged changes to 5
Reiffe’s work station and work shifts on which it bases its 6
claims of discriminatory assignments, i.e., the changes in 7
Reiffe’s work station and work shifts in January 2002 and 8
September 2002. Id. ¶¶ 21-23. As we discussed above, the timely 9
claims of age discrimination based on alleged changes to Reiffe’s 10
work station and work shift assignments are sufficient to 11
withstand a motion to dismiss under the standard articulated in 12
Swierkiewicz, 534 U.S. at 512. Whether those alleged changes to 13
work stations and work shifts constitute discrimination, 14
retaliation, or both is to be determined as the litigation 15
progresses. We therefore conclude that the district court erred 16
in dismissing all of Reiffe’s claims of retaliation. 17
In summary, we conclude with respect to Kassner that the 18
district court properly dismissed the claims of alleged 19
discriminatory assignments to work stations and work shifts, 20
erred in dismissing an implied claim of hostile work environment, 21
and properly dismissed all claims of retaliation. We conclude 22
with respect to Reiffe that the district court properly dismissed 23
certain untimely claims of alleged discriminatory assignments to 24
work stations and work shifts but erred in dismissing other such 25

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20
claims that were based on acts alleged to have occurred in 1
January and September of 2002, properly dismissed any implied 2
claim of hostile work environment, and erred in dismissing claims 3
of retaliation based on acts that were alleged to have occurred 4
in January and September of 2002 for which relief was not time- 5
barred. 6
B. The District Court Erred In Denying the Motion to Amend the 7
Complaint on the Ground of Futility 8
We turn next to the district court’s denial of plaintiffs’ 9
cross-motion to amend their complaint, which we review for abuse 10
of discretion. Dougherty, 282 F.3d at 87; see Parker v. Columbia 11
Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000). In doing 12
so, we review de novo any conclusions of law. Dougherty, 282 13
F.3d at 87. Upon de novo review, we conclude that the district 14
court erred in ruling that the proposed amendment to the 15
complaint would have been futile. 16
Rule 15(a) of the Federal Rules of Civil Procedure provides 17
in the first sentence that “[a] party may amend the party’s 18
pleading once as a matter of course at any time before a 19
responsive pleading is served . . . .” Fed. R. Civ. P. 15(a). 20
The second sentence of Rule 15(a) provides that “[o]therwise a 21
party may amend the party’s pleading only by leave of court or by 22
written consent of the adverse party; and leave shall be freely 23
given when justice so requires.” Id. 24
At the time that plaintiffs moved to amend their complaint, 25
defendants had not filed an answer. Defendants’ motion to 26

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dismiss, because it was a motion, not a pleading, was not a 1
“responsive pleading” within the meaning of Rule 15(a). See 2
Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 3
1996). The threshold question, therefore, is whether the 4
district court was required to accept the proposed amended 5
complaint because the plaintiffs were allowed by the first 6
sentence of Rule 15(a) to amend the complaint as a matter of 7
course. We conclude that the district court, because of the 8
effect of Rule 16(b), was not so required. 9
Although Rule 15(a) governs the amendment of pleadings, 10
Rule 16(b) also may limit the ability of a party to amend a 11
pleading if the deadline specified in the scheduling order for 12
amendment of the pleadings has passed. See Fed. R. Civ. 13
P. 16(b). Under Rule 16(b), a party may obtain a modification of 14
the scheduling order only “upon a showing of good cause.” Id. 15
The record in this case shows that plaintiffs filed their cross- 16
motion to amend the complaint on March 4, 2005, more than one 17
month after February 1, 2005, the date specified in the 18
Rule 16(b) scheduling order as the final date for amendment of 19
the pleadings. 20
In Parker, we addressed the relationship between the 21
standard imposed by the second sentence of Rule 15(a), i.e., the 22
“freely given when justice so requires” standard, and the “good 23
cause” standard of Rule 16(b). 204 F.3d at 339-40. We held in 24
Parker that a district court, despite the standard of the second 25
sentence of Rule 15(a), does not abuse its discretion in denying 26

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leave to amend the pleadings where the moving party has failed to 1
establish good cause, as required by Rule 16(b), to amend the 2
pleadings after the deadline set in the scheduling order. Id. 3
We stated with respect to the Rule 16(b) standard, “‘good cause’ 4
depends on the diligence of the moving party.” Id. at 340 5
(quoting Fed. R. Civ. P. 16(b)). 6
However, we have not previously decided whether a party’s 7
right to amend a pleading once “as a matter of course,” as 8
provided in the first sentence of Rule 15(a), may be qualified by 9
the trial court’s general discretion to limit, by means of a 10
scheduling order entered under Rule 16(b), the time during which 11
the pleadings may be amended. Because the first sentence of 12
Rule 15(a) allows a party to amend a pleading “once as a matter 13
of course at any time before a responsive pleading is served,” it 14
may be argued that the rule creates a right to amend pleadings 15
that is not qualified by the district court’s discretion to 16
impose time restrictions under Rule 16. Fed. R. Civ. 17
P. 15(a)(emphasis added). As we discussed in Parker, Rule 16(b) 18
expressly provides that a scheduling order is to limit the time 19
for amendment of the pleadings and, in so doing, “is designed to 20
offer a measure of certainty in pretrial proceedings”; we cited 21
therein the advisory committee notes to the 1983 amendment to 22
Rule 16, which discussed subsection (b). Parker, 204 F.3d at 23
339-40. Although the Rule 16(b) scheduling order, in the 24
district court’s discretion, may impose various time limits for 25

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pre-trial proceedings (including time limits on “any other 1
matters appropriate in the circumstances of the case”), amendment 2
of the pleadings is one of four time limits that the trial court 3
generally must include in a Rule 16(b) scheduling order. Fed. R. 4
Civ. P. 16(b). The advisory committee notes provide that 5
“[i]tem (1) assures that at some point both the parties and the 6
pleadings will be fixed, by setting a time within which joinder 7
of parties shall be completed and the pleadings amended.” Fed. 8
R. Civ. P. 16 Advisory Committee Notes, 1983 Amendment 9
(discussing subsection (b)). This objective would be frustrated 10
by an interpretation of the first sentence of Rule 15(a) that 11
precludes a district court from exercising any discretion to 12
specify the time period during which a party may effect the first 13
amendment of its complaint prior to the serving of a responsive 14
pleading. Rule 16(b), in allowing modifications of scheduling 15
orders only for good cause, provides the district courts 16
discretion to ensure that limits on time to amend pleadings do 17
not result in prejudice or hardship to either side. For these 18
reasons, we hold that amendment of a pleading as a matter of 19
course pursuant to Rule 15(a) is subject to the district court’s 20
discretion to limit the time for amendment of the pleadings in a 21
scheduling order issued under Rule 16(b). 22
In denying the motion to amend the complaint, the district 23
court relied on the second sentence of Rule 15(a), stating that 24
“[l]eave to amend should be freely given when justice dictates,” 25
and then, concluding that the proposed amended complaint did not 26

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plead facts sufficient to overcome a motion to dismiss, denied 1
that motion on the ground of futility. Mem. Dec. & Order at 5-6; 2
see Fed. R. Civ. P. 15(a). Because the complaint, for the 3
reasons discussed previously, is, with respect to some claims, 4
sufficient to withstand a motion to dismiss under Rule 12(b)(6), 5
the district court’s futility analysis rested on an incorrect 6
conclusion of law. 7
Moreover, the proposed amended complaint would be sufficient 8
as to some claims. We note, for example, that the proposed 9
amended complaint, if accepted, would cure the defective pleading 10
of implied hostile work environment claims pertaining to Reiffe. 11
The proposed amended complaint alleges, inter alia, that 12
defendants began a pattern of harassment constituting a hostile 13
work environment when defendant Lebewohl became the day-to-day 14
manager of 2nd Avenue Delicatessen Inc. Am. Compl. ¶¶ 24, 37. 15
The proposed amended complaint further alleges that defendant 16
Lebewohl aided and encouraged other employees of 2nd Avenue 17
Delicatessen Inc. to harass and degrade Reiffe, as well as 18
Kassner, because of their age in an attempt to force them to 19
quit. Id. ¶ 35. The proposed amended complaint provides 20
additional details on the alleged December 2001 suspension 21
incident (which was not time-barred under the NYSHRL and the 22
NYCHRL), see id. ¶ 52, and alleges that 2nd Avenue Delicatessen 23
Inc.’s “employees/agent repeatedly and continually verbally and 24
physically abused” Reiffe, giving as an example that Reiffe “has 25
been spit on and kicked at by Defendant Deli’s employee/agents.” 26

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Id. ¶ 38. The proposed amended complaint states that the 1
employee/agent who allegedly spit on and kicked Reiffe was a co- 2
worker “acting under the direction of management in contributing 3
to the hostile work environment against Ms. Reiffe.” Id. ¶¶ 52, 4
53. It further alleges that this co-worker was not disciplined 5
for the kicking and spitting incident, and that instead, it was 6
Reiffe who was suspended and then told by the manager of 2nd 7
Avenue Delicatessen Inc., in response to Reiffe’s complaint about 8
the suspension, that “[i]f you don’t like it, you can quit. Why 9
don’t you quit already.” Id. ¶ 53. 10
On remand, the district court must exercise its discretion 11
under Rule 16(b) to determine whether the scheduling order should 12
be modified so as to allow an amended complaint. According to 13
the principles we discussed in Parker, 204 F.3d at 339-40, the 14
primary consideration is whether the moving party can demonstrate 15
diligence. It is not, however, the only consideration. The 16
district court, in the exercise of its discretion under 17
Rule 16(b), also may consider other relevant factors including, 18
in particular, whether allowing the amendment of the pleading at 19
this stage of the litigation will prejudice defendants. In this 20
regard, we note that counsel for plaintiffs, at the district 21
court’s hearing on the motion to dismiss and the cross-motion to 22
amend the complaint, offered to submit a different amended 23
complaint in the event the court considered the submitted 24
proposed amended complaint inadequate. See Mot. Hr’g Tr. 42-43, 25
June 29, 2005. The district court did not explicitly address 26

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counsel’s offer. The district court, as an exercise of its broad 1
discretion concerning the pleadings, may consider whether to 2
allow the already-submitted proposed amended complaint or allow 3
submission of another one. 4
III. CONCLUSION 5
For the reasons stated, we conclude that the district court 6
properly dismissed Kassner’s claims of alleged discriminatory 7
assignments, erred in dismissing her implied claims of hostile 8
work environment, and properly dismissed her claims of 9
retaliation. With respect to Reiffe, we conclude that the 10
district court properly dismissed the untimely claims of alleged 11
discriminatory assignments but erred in dismissing other such 12
claims that were timely, properly dismissed any implied claim of 13
hostile work environment, and erred in dismissing those of her 14
claims of retaliation for which relief was not time-barred. We 15
further conclude that the district court erred in not considering 16
whether plaintiffs had demonstrated good cause to amend the 17
complaint after the expiration of the deadline in the scheduling 18
order. Finally, we decline to award costs or attorneys’ fees to 19
plaintiffs-appellants. The litigation before the district court 20
has not progressed beyond the pleadings stage, and plaintiffs- 21
appellants have yet to prevail upon any of their claims. An 22
award on plaintiffs-appellants’ application therefore would be 23
premature. 24
The district court’s judgment granting defendants’ motion to 25
dismiss the complaint and denying plaintiffs’ cross-motion to 26

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amend the complaint is therefore AFFIRMED IN PART and VACATED IN 1
PART, and this matter is REMANDED to the district court for 2
further proceedings in accordance with this Opinion. 3

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