In McDermott v. The Bd./Dept. of Educ. of the City of New York, No. 159989/2022, 2024 WL 2214288 (N.Y. Sup Ct, New York County May 16, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claims of age discrimination under the New York State and City Human Rights Laws.
From the decision:
Even under the liberal pleading standards applied in employment discrimination actions (see Vig, 67 AD3d at 145), the complaint fails to adequately allege a claim for age discrimination (see Harrington, 157 AD3d at 584-585). At a minimum, the complaint satisfies the first three elements of a prima facie case. Plaintiff, who was 65 years of age in 2015, is a member of a protected class (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006]), and was qualified for the position (see Gregory v Daly, 243 F3d 687, 696 [2d Cir 2001] [“by hiring the employee, the employer itself has already expressed a belief that [the plaintiff] is minimally qualified”]). Termination constitutes an adverse employment action (see Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 202 [1st Dept 2015]). As to the fourth element, however, the complaint fails to plead any facts tending to show that plaintiff was terminated under circumstances that would give rise to an inference of discrimination (see Lewkowicz v Terence Cardinal Cook Health Ctr., 212 AD3d 443, 443 [1st Dept 2023], lv denied 39 NY3d 914 [2023]; Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). “ ‘Discriminatory motivation may be inferred from, among other things, ‘invidious comments about others in the employee’s protected group[,] or the more favorable treatment of employees not in the protected group’ ” (Mazzeo v Mnuchin, 751 Fed Appx 13, 14 [2d Cir 2018] [citation omitted]). The complaint alleges that Fanning once remarked, “Oh my goodness, I didn’t know you were that old” (NYSCEF Doc. No. 2, ¶ 16), but the complaint fails to plead a causal connection between this remark from 2015 and plaintiff’s termination six years later (see Lively v Wafra Inv. Advisory Group, Inc., 211 AD3d 432, 433 [1st Dept 2022]; Brown v City of New York, 188 AD3d 518, 519 [1st Dept 2020]). Apart from this one remark, the complaint fails to plead other, specific facts tending to show a discriminatory animus based on age (see Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569, 570 [1st Dept 2014]). The complaint also fails to adequately plead that other employees who did not share plaintiff’s protected characteristic were treated more favorably (see Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]).
Further, while the complaint “alleges that a member of the Social Studies Department Global team received tenure after four years and one day of service,” it “fails to set forth this teacher’s age so that it would be reasonable to infer that plaintiff was treated less well because of her age.”