Age Discrimination Claims Survive Dismissal; Allegations Included Disparaging Age-Related Comments

In Keles v. Burl Yearwood & LaGuardia Community College, No. 15-CV-03880 (NG), 2017 WL 2313472 (E.D.N.Y. May 26, 2017), the court, inter alia, denied defendants’ 12(b)(6) motion to dismiss plaintiff’s age discrimination claims.

“To survive a Rule 12(b)(6) motion to dismiss, a plaintiff asserting an employment discrimination complaint under the ADEA must plausibly allege that adverse action was taken against her by her employer, and that her age was the ‘but-for’ cause of the adverse action.”

Here, plaintiff did so:

Defendants acknowledge that plaintiff has alleged sufficient facts to support his age discrimination claim with respect to LCC’s decision not to hire him for a full-time faculty position. However, they argue that plaintiff has not met his burden with respect to his second discrimination claim, predicated on the decision not to assign him courses to teach as an adjunct professor, because he bases his claim solely on the allegation that younger professors were assigned the courses he could have taught. However, in addition to that allegation, plaintiff also alleges that he not infrequently heard statements disparaging professors for their age in the Natural Sciences Department. For example, he overheard statements by an administrator in the department disapprovingly referring to “these old adjuncts.”

In addition, plaintiff alleges that, in his interview for the full-time position, he was asked “How do you write grants at this age?” and told “Your old methods don’t work.” He was then denied the position. Although these allegations relate to his application for the full-time position, they plausibly support an inference that age animus infected all of the department’s hiring decisions with respect to plaintiff. Both the full-time and adjunct positions that plaintiff sought are within the same department, and the decisions to reject him for both positions were made close in time, only a few months apart. It is at least plausible that, in such a relatively small environment, some of the same people who exhibited age animus during the full-time hiring process were also involved in the decision-making process about adjunct faculty assignments. Plaintiff’s allegations as a whole sufficiently support his claim that his age was a motivating factor, and even a but-for cause, in LCC’s decision not to assign him courses to teach.