The Second Circuit has ruled that an age discrimination plaintiff who alleged that his supervisor said he was "too old and that he would seek to replace" him and others "with younger employees" has not stated a plausible claim under Rule 12(c). This case may require plaintiffs' employment discrimination attorneys to reevaluate how they draft their lawsuits to ensure their claims survive a motion to dismiss.

While employment discrimination cases take up a large portion of the federal docket, the Second Circuit publishes relatively few decisions that resolve whether the plaintiff has plead a plausible discrimination case, particularly under the "but-for" causation test adopted by the Supreme Court. What makes Lively v. WAFRA Investment Advisory Group, 2021 WL 3118943 (2d Cir. July 23, 2021), notable is the ageist comments from Lively's supervisor and his affirmative allegation in the complaint that the articulated reason for his termination was false. This case also signals that the Second Circuit may be charting a new path on motions to dismiss discrimination complaints, as the Court of Appeals suggests that Circuit precedent from 2015, which offers a generous standard for plaintiffs, may no longer be good law.