SDNY Dismisses Employment Discrimination Complaint Asserting Unequal Discipline and Age-Related Jokes and Comments

In Franchino v. Roman Catholic Archdiocese of New York, No. 15 CV 6299 (VB), 2016 WL 3360525, at (S.D.N.Y. June 15, 2016), the court dismissed plaintiff’s complaint for discrimination on the basis of gender, ethnicity, national origin, and age under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

In dismissing his Title VII claims, Judge Briccetti explained:

[A]a plaintiff asserting a discrimination claim under Title VII must allege (i) the employer discriminated against him (ii) because of his race, color, religion, sex, or national origin. …

[P]laintiff alleges his termination was motivated by discrimination because he is an American non-Hispanic Caucasian male, while a female Hispanic co-worker [initials LMB] was not fired. Plaintiff’s theory of discrimination is one of disparate treatment – i.e., defendants terminated him while a similarly situated employee, who did not have his same protected characteristics, was not terminated. …

The amended complaint does not contain any facts to support an inference that plaintiff and [LMB] engaged in conduct of comparable seriousness, and that defendants chose to terminate plaintiff in part because of his gender, ethnicity, or national origin. In the context of employee discipline, the plaintiff and the similarly situated employee must have engaged in comparable conduct, that is, conduct of comparable seriousness. Plaintiff alleges he was accused of inappropriate or sexist conduct in the workplace, the accusation was investigated by his boss, and the boss terminated him. Plaintiff makes no comparable allegations as to [LMB]. Instead, he simply asserts [LMB] created a hostile work environment and was abusive towards her subordinates. These conclusory allegations, without more, cannot support an inference that he and [LMB] engaged in comparable conduct and defendants chose to terminate plaintiff due to his gender, ethnicity, or national origin. (Emphasis added.)

The court rejected plaintiff’s argument that the “accusation of inappropriate or sexist conduct leveled against him was a pretext for his termination, while the true reason he was terminated was his gender, ethnicity, or national origin”, noting among other things that “the mere fact plaintiff felt he was accused of sexist conduct because he is male is insufficient to indicate gender bias.”

The court also dismissed plaintiff’s age discrimination claim under the Age Discrimination in Employment Act. For example, while plaintiff alleged that his co-workers “made hurtful comments about his age” and his superiors “allowed plaintiff to be depicted as old and decrepit in unflattering cartoons,” he “failed to allege when these acts occurred or who made the comments or cartoons that could support an inference of a nexus between the comments or cartoons and his termination.”

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