In Basso v. EarthLink, Inc., 2018 NY Slip Op 00030 (App. Div. 1st Dept. Jan. 2, 2018), the court affirmed summary judgment in defendants’ favor on plaintiff’s claims of gender and age discrimination under the New York State and City Human Rights Laws.
From the decision:
Plaintiff carried her “de minimis burden” of showing a prima facie case of discrimination based on age and gender (Melman v Montefiore Med. Ctr., 98 AD3d 107, 113-114, 115 [1st Dept 2012] [internal quotation marks omitted]; Baily v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 123 [1st Dept 2007]; see generally Executive Law § 296; Administrative Code of City of NY § 8—107[1][a]). Defendants do not dispute that plaintiff’s age, 64 years, and gender are protected classes, or that plaintiff was qualified for the position at issue. In addition, plaintiff demonstrated that her employment was terminated, that she was replaced by a younger man, and that she had been the only branch manager nationwide who was over 60 years old.
The motion court nevertheless correctly granted summary judgment dismissing the complaint because plaintiff failed to raise an issue of fact whether defendants’ reason for terminating her employment was pretextual (see Melman, 98 AD3d at 113-114). Defendants demonstrated a legitimate, nondiscriminatory reason for eliminating plaintiff’s branch manager position. Specifically, defendant EarthLink, Inc., was reorganizing and consolidating some branches to improve operational efficiency, so it eliminated one of two branch manager positions in the New York area. In addition, plaintiff’s work performance, in particular, her sales record, was inferior to that of the other branch manager, Naim Mustafaj, a younger male.
The court also rejected plaintiff’s reliance on comments by her supervisor, and explained that plaintiff’s “impression that he was uncomfortable around older women, and preferred to work with younger men, does not raise any triable issue”, reasoning that “[a] plaintiff’s feelings and perceptions of being discriminated against are not evidence of discrimination.”
Furthermore, the court explained that “[o]ne derogatory reference to plaintiff and her male colleagues as girls when they lagged behind on the way to a restaurant, on an unspecified date, is at most [a] stray remark[] that does not, without more, constitute evidence of discrimination.”