The full case caption appears at the
end of this opinion. CARDAMONE, Circuit Judge: Plaintiff Fred Tarshis appeals, pro se, from a judgment entered October 7, 1998 in the United StatesDistrict Court for the Southern District of New York (Batts, J.) that granted the defendant RieseOrganization’s motion to dismiss his complaint for failure to state a cause of action. Plaintiff’s complaintalleges discrimination in employment and, like most such litigation, this case has a David-versus-Goliathquality to it. Tarshis, a 67-year-old male employee of Riese, one of New York City’s largest restaurantoperations, worked at Riese’s Brew Burger where he was its oldest and only white employee. Six yearsago his supervisor told him to take a month off, and when he returned the Brew Burger where he hadworked was closed. Defendant offered him a job in another restaurant for longer hours at less pay, which herefused. Instead he brought suit against his former employer for age and national origin discrimination. The district court dismissed plaintiff’s complaint ruling that closing a restaurant could not serve as a pretextfor age or national origin discrimination against one of the employees that worked there, and further, thathis claims could not stand because his employer offered him another �- although not as good �- job. As faras we know from the record the only reason given for plaintiff’s firing was the restaurant’s closing. In his 20years of employment at defendant’s well-established and overflowing restaurant business, plaintiff wasconsidered good enough as a waiter to be promoted to cook and bartender, good enough as cook andbartender to become an assistant manager, and good enough as an assistant manager to hold thatposition simultaneously at two of Riese’s restaurants at the time he was fired. Yet, defendant did notconsider plaintiff good enough to continue employment at one of its 150 New York restaurants after one ofthe two where plaintiff worked was closed. We reverse the dismissal of plaintiff’s complaint and remand thecase to the district court. BACKGROUND Defendant Riese is New York’s largest independent restaurant business. It owns and operates more than150 restaurants in the New York City area, including well-known franchises such as T.G.I. Friday’s,Houlihan’s, Beefsteak Charlie’s, Dunkin’ Donuts, KFC, Pizza Hut, Roy Rogers, Arby’s, Lindy’s, and CharlieO’s. The plaintiff began working as a waiter with Riese in 1974 at age 47. During his 20 years with thecompany, he worked a variety of jobs in several different Riese restaurants. In his complaint, plaintiff allegesthat in 1993 he was splitting his time as assistant manager at two Riese restaurants, working at the BrewBurger three days a week and at Lindy’s two days a week. In October 1993 Tarshis was ordered by hissupervisor, Tony Rosado, a 46-year-old Hispanic man, to take a one-month vacation. During that month,Riese closed the Brew Burger and began converting its location into a new upscale Martini’s restaurant. When he returned from vacation, Tarshis found the restaurant where he had worked closed and himselfwithout a job. He was also told he no longer had a job at Lindy’s. His replacement at Lindy’s was MikePerez, a 59-year-old Hispanic man. When he was dismissed, Tarshis alleges he was the oldest employeeat the Brew Burger and its only white employee. He also asserts that every other employee at the closedBrew Burger was reassigned either to the new Martini’s or to another Riese restaurant. Plaintiff appealed invain to his former supervisor for reinstatement, and only after he pleaded with a Riese vice president washe given a short term position during the 1993 Christmas holidays, being let go again in early January1994. In May 1994 Riese placed several advertisements in New York newspapers seeking assistant managersfor their restaurants. Tarshis applied for and was offered a position that paid less and required him to workone day more than his previous position. He declined this offer, and instead filed a claim of age andnational origin discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOCdismissed his claim on July 10, 1996. Tarshis later filed a suit in federal court alleging violations of the Age Discrimination in Employment Act of1967 (ADEA), 29 U.S.C. � 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq.,Article I, section 11 of the New York Constitution, the New York Human Rights Law, N.Y. Exec. Law � 296 etseq., and unspecified New York City anti-discrimination laws. On October 7, 1998 the district court, upondefendant’s motion, dismissed plaintiff’s complaint for failure to state a claim. It ruled that Tarshis had notstated a discrimination cause of action because Riese’s closure of the Brew Burger was a valid,non-discriminatory reason for dismissing him. In addition, it found no discrimination in the failure to reassignplaintiff after the Brew Burger closed because plaintiff admitted that he turned down this offer ofreemployment. Having dismissed the federal claims, the district court in the exercise of its discretiondismissed the pendent state claims as well. DISCUSSION I Legal Principles A. Standard of Review A district court may grant a motion to dismiss for failure to state a claim only if “it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.Gibson, 355 U.S. 41, 45-46 (1957). This rule barring the granting of a motion to dismiss has for many yearsbeen carefully adhered to in this Circuit, particularly in civil rights actions. See Gant v. Wallingford Bd. ofEduc., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994); Branumv. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Escalera v. New York City Hous. Auth., 425 F.2d 853, 857 (2dCir. 1970); Holmes v. New York City Hous. Auth., 398 F.2d 262, 264-65 (2d Cir. 1968). Thus, while bald assertions and conclusions of law will not suffice to state a claim, see Leeds v. Meltz, 85F.3d 51, 53 (2d Cir. 1996), the district court, before granting a motion to dismiss, must accept as true all ofthe factual allegations set out in plaintiff’s complaint, draw inferences from those allegations in the light mostfavorable to plaintiff, and construe the complaint liberally. See Desiderio v. National Ass’n of Sec. Dealers,Inc., 191 F.3d 198, 202 (2d Cir. 1999). We review dismissal of plaintiff’s complaint de novo. See id. B. The ADEA Reading that complaint in light of the rules just outlined, we think it purports to state two claims: one, an agediscrimination claim and, two, a Title VII claim. We discuss the legal principles governing the age claim first.The ADEA prohibits discrimination on the basis of age against an individual aged 40 or older “with respectto his compensation, terms, conditions, or privileges of employment.” 29 U.S.C. ��623(a)(1), 631(a).Claims of age discrimination under the ADEA are analyzed according to the same burden-shiftingframework outlined for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). Under the McDonnell Douglas analysis, a plaintiff must first prove by a preponderance of the evidence aprima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dep’t of CommunityAffairs v. Burdine, 450 U.S. 248, 252-53 (1981). A plaintiff who claims age discrimination has the burden �-described as minimal �- of establishing four elements to prove a prima facie case. See St. Mary’s HonorCtr. v. Hicks, 509 U.S. 502, 506 (1993); Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam).Plaintiff must show that he is (1) a member of the protected age group, (2) qualified for the position, (3)subjected to an adverse employment decision or discharge, and that (4) his discharge occurred undercircumstances giving rise to an inference of discrimination. See Austin v. Ford Models, Inc., 149 F.3d 148,152 (2d Cir. 1998); Woroski, 31 F.3d at 108. To make the required showing, a plaintiff may rely on directevidence of what the defendant did and said, but more often than not must depend on the cumulative weightof circumstantial evidence to make out a prima facie case. See Luciano v. Olsten Corp., 110 F.3d 210,215 (2d Cir. 1997). Once plaintiff has successfully established a prima facie case, the burden of production shifts to thedefendant to articulate a legitimate, non-discriminatory reason for its adverse employment action. SeeAustin, 149 F.3d at 153; Woroski, 31 F.3d at 108. Any stated reason is sufficient; the employer need notpersuade the court that the proffered reason was the actual reason for its decision. See Austin, 149 F.3d at153; Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc). If the employer makesthis showing, the presumption of discrimination raised by plaintiff establishing his prima facie case dropsout, and the burden shifts back to plaintiff to prove that discrimination was the real reason for theemployment action. See St. Mary’s Honor Ctr., 509 U.S. at 511, 515; Fisher, 114 F.3d at 1339. A plaintiffmay demonstrate that discrimination was the real reason by showing that it was a motivating factor �-although it need not be the only motivating factor �- in the employment decision. See Renz v. GreyAdvertising, Inc., 135 F.3d 217, 222-23 & n.5 (2d Cir. 1997). C. Title VII Turning to the legal principles governing what we discern as plaintiff’s second or Title VII claim, we note thatin order to establish a Title VII prima facie case, a plaintiff must show four elements similar to thoserequired under the ADEA, namely that he is (1) a member of the protected class, (2) qualified for andsatisfactorily performing his job, (3) subjected to an adverse employment decision, and that (4) this adversedecision occurred under circumstances giving rise to an inference of discrimination. See McDonnellDouglas, 411 U.S. at 802; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The fourth element of the prima facie case may be satisfied by a showing that the plaintiff’s positionremained open after he was discharged, or that he was replaced by someone outside his protected class.See De la Cruz v. New York City Human Resources Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir.1996); Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). Once the plaintiff has proven a primafacie case of discrimination, the burden shifts to the defendant to show a valid, non-discriminatory reasonfor its action and, if it can do so, the plaintiff must show that the real reason for the defendant’s action wasdiscrimination. See St. Mary’s Honor Ctr., 509 U.S. at 510-11; McDonnell Douglas, 411 U.S. at 802. II Analysis of Present Case A. Alleged Non-discriminatory Justification for Tarshis’ Dismissal We discuss the disposition by the district court of plaintiff’s complaint in light of the rules just set forth. Thedistrict court did not assess whether Tarshis had stated a prima facie case under either the ADEA or TitleVII because it found that his claim failed on two other grounds. It concluded without further analysis thatTarshis could not state a claim because, alternatively, (1) the closure of the Brew Burger represented anon-discriminatory reason for his dismissal which could not possibly be pretextual, thus disposing of thesecond and third steps of the McDonnell Douglas methodology, and (2) Riese’s offer of reinstatementdefeated the third element of Tarshis’ prima facie case because it demonstrated the lack of any adverseemployment action. We are unable to embrace either rationale as a basis for dismissing plaintiff’scomplaint. Dismissal for failure to state a claim for the first reason was inappropriate because the trial court did notconsider the allegation in Tarshis’ complaint that he was employed as assistant manager at two Rieserestaurants, not simply the closed Brew Burger. In the proceedings below Riese offered no explanation forwhy it dismissed Tarshis from his position at Lindy’s restaurant. So long as Tarshis otherwise states aprima facie case of age, race, or national origin discrimination, Riese has yet to articulate a valid,non-discriminatory reason for plaintiff’s dismissal from Lindy’s. Further, the question of whether the closure of the Brew Burger was a non-discriminatory and non-pretextualreason for Tarshis’ dismissal from his position at that restaurant was not properly decided on a motion todismiss for failure to state a claim. We recognize that a reduction-in-force or restructuring that results in anelimination of jobs often is a legitimate reason for dismissing an employee. See Woroski, 31 F.3d at 109;Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1226 (2d Cir. 1994); Dister v.Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). But, such a reduction is not always the wholestory. Here, Riese has not claimed that an economic downturn led to a reduction-in-force of its employees;in fact the contrary is the case �- its business is doing very well. Instead what we are told is that a single restaurant, in defendant’s large chain of restaurants, was closed sothat a newer and better one could take its place. The employer reopened a restaurant on the same site, butwith a different name several months after closing it, employing some of the same people who had workedat Brew Burger, and the remaining Brew Burger employees, except for Tarshis, were reassigned to otherRiese restaurants. When Martini’s opened, Riese advertised for assistant manager positions, including oneat the newly-reopened restaurant. Nor does it appear from the record that any positions were eliminatedwithin the corporation as a result of the closure of the Brew Burger and the subsequent opening of a newRiese restaurant at the same site. Where restructuring involves a consolidation of operations and the position previously held by plaintiffcontinues to exist in the on-going business, the restructuring is not an explanation sufficient as a matter oflaw to compel dismissal of the lawsuit without discovery or further inquiry. See Maresco v. EvansChemetics, 964 F.2d 106, 111-13 (2d Cir. 1992); Montana v. First Fed. Sav. & Loan Ass’n of Rochester,869 F.2d 100, 105 (2d Cir. 1989). Business restructurings usually involve the transfer of personnel, so thatnot offering an employee the opportunity to transfer could constitute evidence that the employer’s reason fordischarge was pretext. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509 (2d Cir. 1994). Although Title VII and the ADEA do not grant courts authority to second-guess the wisdom of corporatebusiness decisions, see Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982), we must neverthelessjudge whether the proffered explanation in light of all the circumstances is a rational one. In the context ofclosing a restaurant, the focus must be on what evidence of an economic nature would provide anon-discriminatory reduction-in-force or restructuring rationale. Because no positions were ultimatelyeliminated, nothing in the record before us justifies Riese’s decision to dismiss Tarshis. Therefore, theclosure of the Brew Burger could have been advanced as a pretext for what in actuality was plaintiff’simpermissible and discriminatory dismissal and, contrary to the district court’s conclusion, does not justifydismissal of plaintiff’s prima facie case. B. Effect of Offer of Reinstatement on Tarshis’ Claim The district court also erred in its alternative ruling that Tarshis’ refusal to take a lower paying position withhis employer after it dismissed him defeats his claim. This holding involves the third prong of the primafacie case, the requirement that the employee has suffered an adverse employment action. The districtcourt held that “neither Title VII nor the ADEA requires that the Plaintiff be offered a position thatcompensates him at the same rate as before he was discharged.” In effect, such view means that under theADEA and Title VII the discharge and subsequent rehire of an employee in a position with lesscompensation and longer hours does not constitute an “adverse employment action.” Such holding is notconsistent with our precedents. Quite the contrary, the third element of a prima facie case is satisfied by showing an employer’s action thatalters the terms and conditions of employment in a negative way. See De la Cruz, 82 F.3d at 21. Thedischarge of an employee, followed by her rehiring in a lower position, is an adverse employment action.See Quaratino v. Tiffany & Co., 71 F.3d 58, 62-64 (2d Cir. 1995). Similarly, Tarshis’ rehiring in a positionlower than the assistant manager job he held before is tantamount to a demotion and, as such, clearlyqualifies as an adverse employment decision under the anti-discrimination statutes. See Kaluczky v. Cityof White Plains, 57 F.3d 202, 208 (2d Cir. 1995). Even reassignment to a less desirable position sufficesto satisfy the adverse employment action element of the prima facie case. See Richardson v. New YorkState Dep’t of Correctional Svc., 180 F.3d 426, 444 & n.4 (2d Cir. 1999). We see no reason why anemployer should be allowed to accomplish an adverse reassignment or demotion with invidious intentthrough layoff and rehiring when that same action would be impermissible if done in the course ofemployment. III Resolution of the Claims Alleged in the Complaint A. ADEA Claim Tarshis clearly satisfies the first three elements of the ADEA prima facie case. He was 67 years old whendischarged, and thus a member of the protected class. There is no dispute that his performance had beenconsistently good and that he was qualified for the position of assistant manager that he held. Ourdiscussion above demonstrates that he suffered an adverse employment action. To survive the motion todismiss, Tarshis must show that the adverse employment action occurred in circumstances that give rise toan inference of discrimination on the basis of age. To that subject we now turn. Tarshis was replaced as assistant manager at Lindy’s by a 59-year-old man. Although an inference ofdiscrimination cannot be based on a plaintiff’s replacement by another person who is only slightly younger,see O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312�13 (1996), we have held that thereplacement of an employee within the protected class by two others, one 11 years younger and the othereight months younger, satisfied the fourth element of a prima facie case under the ADEA. See Hollander v.American Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999). A difference of eight years between the ageof the person discharged and his replacement, as in the instant case, is not insignificant. This inference is strengthened in Tarshis’ case by his allegations (1) that he was the oldest employee atBrew Burger and the only Brew Burger employee discharged as a result of the closure, see Levin v.Analysis & Technology, Inc., 960 F.2d 314, 317 (2d Cir. 1992), and (2) that Riese advertised for assistantmanager positions within a few months of discharging Tarshis, including a night manager position at thenew Martini’s located at the same site as the closed Brew Burger. See Viola v. Philips Med. Sys., 42 F.3d712, 718 (2d Cir. 1994) (hiring of replacement employees after a reduction in workforce supports aninference of improper motive in terminating employment). Riese emphasizes that Tarshis was 47 years oldwhen hired and was already within the class protected by the ADEA. That circumstance may be relevant atthe third stage of the McDonnell Douglas inquiry, see Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991),but it does not compel dismissal of the complaint now. In light of the minimal burden required to satisfy the prima facie case, the record before us is sufficient togive rise to an inference that age was a factor in Riese’s allocation of jobs to the former employees of theBrew Burger. B. Title VII Claim The ambiguity in the record and disposition below of Tarshis’ Title VII claim precludes review of this claim atthis point in the proceedings. Because the district court decided that Tarshis’ suit failed for other reasons, itundertook no analysis of his Title VII claim. However, its passing references to his claim appear to havemisconstrued the allegations in plaintiff’s complaint. Ordinarily, in deciding a motion for failure to state a claim, the district court must confine its consideration tofacts stated on the face of the complaint, in documents appended to the complaint or incorporated in thecomplaint by reference, and to matters of which judicial notice may be taken. See Allen v.Westpoint�Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The motion is granted when the pleadings donot delineate adequately the elements of the cause of action upon which the plaintiff’s theory of liability ispredicated. See Stern v. General Elec. Co., 924 F.2d 472, 476 (2d Cir. 1991). Plaintiff’s allegations of a violation of Title VII as set forth in his complaint are somewhat murky. In hiscomplaint, Tarshis alleges he was the only Caucasian person employed at Brew Burger when he was fired,that his supervisor was Hispanic, and that his position at Lindy’s was filled by another Hispanic man. On thisbasis, he contends he suffered national origin discrimination. However, he makes no statement regardinghis own national origin. In the papers filed in opposition to the motion to dismiss, his counsel asserted thathe stated a case of race discrimination. While there is no substantive difference in the prima facie case aplaintiff must show for a national origin discrimination claim as compared with a race discrimination claim,there is considerable confusion in this plaintiff’s submissions to the district court regarding what he isactually asserting. Adding to the confusion is the fact that, despite the allegations on the face of thecomplaint, the district court construed Tarshis’ Title VII claim throughout to be one of race discriminationand yet did not analyze whether he stated a prima facie case under such claim. Thus, the complaint is unclear as to the precise claim plaintiff is asserting. However, because we reinstateTarshis’ ADEA claim, the district court should on remand allow Tarshis to amend his complaint with respectto his Title VII cause of action. Given any indication that a valid Title VII claim may be stated, pro sepleadings, however inartfully drawn, are held to less stringent standards than those pleadings drafted bylawyers. Granting leave to amend is consistent with the policy of liberally construing civil rights complaints.See Fed. R. Civ. P. 15(a); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507U.S. 167-69 (1993); Branum, 927 F.2d at 705. Unless it can be said that under the allegations of thiscomplaint it appears that plaintiff is entitled to no relief under any view of the facts that could be produced insupport of his cause of action, then plaintiff must be afforded an opportunity to offer his proof. CONCLUSION In concluding that Tarshis failed to state a viable cause of action, the district court made two incorrectdeterminations about the factors that can defeat a discrimination suit. Because the facts stated in Tarshis’complaint taken in the light most favorable to him properly state a claim of age discrimination under theADEA, we reverse and remand for further consideration of that claim. It also appears from the allegations inthe complaint that Tarshis may be able to assert a claim of discrimination under Title VII, and he should begiven leave to amend his complaint to state such a claim. Having found that Tarshis’ claims were improperlydismissed, the order dismissing his pendent state law claims must also be vacated and those claimsreinstated. The judgment appealed from is accordingly reversed and the case remanded to the district court for furtherproceedings consistent with this opinion.
Tarshis v. The Riese Organization UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1999 (Argued: August 30, 1999 Decided: April 27, 2000) Docket No. 98-9599 FRED TARSHIS, Plaintiff-Appellant, v. THE RIESE ORGANIZATION, Defendant-Appellee. FRED TARSHIS, New York, New York, Pro Se Plaintiff-Appellant. JOHN HARRIS, New York, New York (Davidoff & Malito LLP, New York, New York, of counsel), for Defendant-Appellee. Before: NEWMAN, CARDAMONE, and JACOBS, Circuit Judges.
