Reduction in Force Coupled With Retention of Others Not in Plaintiff’s Protected Class Insufficient to State Claims of Age and Gender Discrimination

In McCabe v Consulate General of Canada, No. 101565/15, 8619, 8620, 2019 N.Y. Slip Op. 01651, 2019 WL 1064104 (N.Y.A.D. 1 Dept., Mar. 07, 2019), the court, inter alia, affirmed the dismissal of plaintiff’s sex and age discrimination claims under the New York State and City Human Rights Laws.

From the decision:

The court properly granted defendant’s motion to dismiss plaintiff’s causes of action alleging sex and age discrimination under the State and City Human Rights Laws, as plaintiff failed to allege sufficient facts to establish a prima facie case for these causes of action (Executive Law § 296[1][a]; Administrative Code of City of N.Y. § 8–107[1][a] ). Plaintiff sparingly alleges that he was terminated as part of a larger work force reduction while a younger man and woman were retained, which, standing alone, does not suffice to support either age or sex discrimination (see Matter of Leka v. New York City Law Dept., 160 A.D.3d 497, 76 N.Y.S.3d 7 [1st Dept. 2018]; Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013] ). He similarly failed to elaborate on the nature of any complaints he made to establish that those complaints were “protected activity,” and to establish any causal connection between those complaints and his later termination or any other adverse employment action[.]