In Rao v. Rodriguez, No. 14-cv-1936, 2017 WL 1214437 (E.D.N.Y. Mar. 31, 2017), the court denied defendants’ motions for summary judgment on plaintiff’s age discrimination claims – including under the Age Discrimination in Employment Act and its “heightened burden of but-for causation.”
Plaintiff alleged, among other things, that the defendant-hospital’s CEO
- said to plaintiff “You’re old. I want you out.”;
- referred to plaintiff as “calcified” when explaining why he wanted plaintiff to leave defendant; and
- said that plaintiff’s face “looks like an oyster shell.”
“The condition that a plaintiff’s age must be the ‘but for’ cause of the adverse employment action is not equivalent to a requirement that age was the employers only consideration, but rather that the adverse employment action would not have occurred without it.”
Applying the law, the court held:
Drawing all reasonable inferences in Plaintiff’s favor, the court finds that Plaintiff has satisfied this standard. Rodriguez’s emails to the Board may have emphasized non-discriminatory reasons for Plaintiff’s departure, but when Erachshaw and Plaintiff initially confronted him about seeking Plaintiff’s removal, Rodriguez explicitly referenced Plaintiff’s age. In each interaction, Rodriguez’s alleged comment was less a ‘stray’ remark than an open declaration of bias. It not only reflected a highly discriminatory attitude, but also came at the time of the [adverse employment action] and referred directly to [Plaintiff’s] tenure with [Wyckoff] in negative terms.
In support of its conclusion that summary judgment was inappropriate, the court cited Martinez v. N.Y. City Transit Auth., No. 15-3159-CV(L), 2016 WL 7036823 (2d Cir. Dec. 2, 2016), which reversed a grant of summary judgment to defendants in light of facts including an alleged comment that “[p]eople who are eligible to retire should retire and make room for the younger generation.”