In Godino v. Premier Salons, Ltd., No. 13705/13, 2016 NY Slip Op 05118, 2016 WL 3533532 (N.Y. App. Div. 2d Dept. June 29, 2016), the court affirmed the denial of defendants’ motion to dismiss plaintiff’s complaint alleging age discrimination and hostile work environment.
On a motion to dismiss a complaint for failure to state a cause of action under CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail[.] The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.”
Turning to the merits, the court explained that “[t]o state a cause of action alleging age discrimination under the New York Human Rights Law (Executive Law § 296), a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she was actively or constructively discharged or suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she was terminated or suffered an adverse employment action, and (4) that the discharge or adverse employment action occurred under circumstances giving rise to an inference of age discrimination.”
Here, the plaintiff did so. The court explained:
Here, the plaintiff alleged in the complaint that she was a 54–year–old hairstylist with more than 20 years of experience and a loyal clientele when she began working for the defendants. She alleged that her coworkers, managers, and supervisors frequently ridiculed and harassed her because of her age by stating that she was “too old” and that she “should retire.” According to the complaint, the plaintiff’s work station was moved by a supervisor to a less desirable location in the salon, facing a fire exit, which resulted in a decrease in the plaintiff’s income. She alleged that a younger hairstylist, who happened to be one of the individuals who harassed her, was assigned to her former work station. The plaintiff claimed that her manager informed her that the supervisor made this decision “to promote the young girl with lots of energy.” The plaintiff alleged that she complained to management about the harassment and the change of work station, but that no remedial action was taken. She further alleged that on a particular occasion, she was attacked by two younger hairstylists, one of whom scratched her arm, screamed that she was “ugly and old,” and told her she “should retire.” According to the complaint, the plaintiff’s managers and supervisors failed to intervene during the attack, and, thereafter, the defendants terminated the plaintiff’s employment. Presuming these allegations to be true, the plaintiff has adequately stated a cause of action alleging age discrimination under Executive Law § 296.
“To state a cause of action alleging a hostile work environment under Executive Law § 296, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected class]. … [C]ourts examining hostile work environment causes of action should consider, among other things, the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Applying these principles, the court held that plaintiff adequately stated a cause of action alleging a hostile work environment.