Age Discrimination Claim Against CUNY Survives Summary Judgment

In a recent Southern District case, Dickinson v. City University of New York, 2018 WL 4333986 (S.D.N.Y. Sept. 11, 2018), the court (inter alia) denied defendant’s motion for summary judgment on plaintiff’s age discrimination claim against the City University of New York.^[1]Plaintiff also asserted claims of gender discrimination, retaliation, and hostile work environment; here I will focus on the court’s assessment of plaintiff’s age discrimination claim.

Plaintiff alleged, among other things, that defendant discriminated against her by offering a desired position to a younger male (Kisel) instead of her.

From the decision:

… With regard to evidence that age played a role in Lepera’s decision, Plaintiff argues that once Kisel was hired, it became clear that Lepera had a preference for him over Plaintiff, apparently due to his youth. Plaintiff claims that Lepera “frequently” referred to Kisel as “kid,” also described him as “cute,” “young,” and “energetic,” and never heard Lepera refer to anyone else, including Plaintiff, as “kid.” (Dickinson Aff. ¶¶ 8–9.) Lepera admits that she referred to Kisel as a “cute kid” at least once or twice, but claims that she referred to numerous people as “kid,” including other staff members of various ages and her own mother. (Lepera Decl. ¶ 44; see also Malik Decl. ¶¶ 3–6.) Plaintiff also claims that Lepera told Plaintiff that she wanted “new blood” for the acting position when Plaintiff and Lepera met in January 2014, before Lepera announced that Kisel would take the acting position. (Dickinson Aff. ¶¶ 11–12.) Lepera disputes that this ever occurred. (Lepera Decl. ¶ 45.)

The terms Plaintiff claims to have heard Lepera call Kisel—some of which are not disputed by Defendant—could suggest a preference for his age. See, e.g., Weiss v. JPMorgan Chase & Co., 332 F. App’x 659, 664–65 (2d Cir. 2009) (summary order) (concluding that describing an employee as “energized” could be a euphemism for youthfulness); Gallaway v. Curtice-Burns Foods, Inc., 806 F. Supp. 28, 31 (W.D.N.Y. 1992) (holding that, among other things, manager’s stated desire to bring “new blood” into the company raised triable issue as to pretextual nature of plaintiff’s demotion); Ross v. Arcata Graphics Co., 788 F. Supp. 1298, 1307 (W.D.N.Y. 1992) (noting that “new blood” could be interpreted as a “metaphor[ ] for youth” (quoting Nobler v. Beth Israel Med. Ctr., 702 F. Supp. 1023, 1029 (S.D.N.Y. 1988) ) ). Whether Lepera called others “kid,” the frequency with which she called Kisel “cute kid,” whether she told Plaintiff she wanted “new blood” for the acting position, and what Lepera meant by those terms are questions for the jury and may not be resolved at this stage. See Owens v. N.Y.C. Hous. Auth., 934 F.2d 405, 410 (2d Cir. 1991) (comments about age made by individuals with substantial influence over plaintiff’s employment “raise[ ] a triable issue as to whether the articulated reasons for [plaintiff’s] firing were pretextual”).

Citing several cases, Defendant contends that Plaintiff cannot meet her burden on summary judgment “merely by disagreeing with her former supervisor’s view of her work” and by asking the court to give the jury a chance to disbelieve Defendant’s proffered evidence. (Def.’s Reply 2.)17 However, each of the cases Defendant cites stands for the proposition that Plaintiff must offer some affirmative evidence calling into question Defendant’s proffered evidence in order to get to the jury. See, e.g., Anderson, 477 U.S. at 257 (“[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”); Martin v. Citibank, N.A., 762 F.2d 212, 217–18 (2d Cir. 1985) (“If all of the witnesses deny that an event essential to plaintiff’s case occurred, he cannot get to the jury simply because the jury might disbelieve these denials. There must be some affirmative evidence that the event occurred.” (citation omitted) ). A plaintiff’s sworn testimony in a discrimination case is the type of affirmative evidence that can defeat summary judgment. … Plaintiff’s detailed affirmation, therefore, is sufficient to create genuine disputes of material fact. …

The court rejected defendant’s reliance on three arguments that “counteract an inference of discrimination”, namely, that (1) plaintiff and the person who denied her the position are members of the same protected class, (2) that person and plaintiff are of the same protected class, and (3) plaintiff was replaced by a member of the same protected class.