Age Discrimination Claim Dismissed; Court Finds “Young Man’s Game” Comment To Be a “Stray Remark”

In Tsismentzoglou v. Milos Estiatorio Inc., 18-cv-9664, 2019 WL 2287902 (SDNY May 29, 2019), the court, inter alia, dismissed plaintiff’s employment discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA).

From the decision:

Plaintiff has not shown circumstances giving rise to even a minimal inference of discrimination, however, Tsismentzoglou does not provide any facts in support of his assertion that he was not given the shifts he desired, was not promoted, or was terminated because of his age. See Lawtone–Bowles v. City of N.Y., Dep’t of Sanitation, 22 F. Supp. 3d 341, 350 (S.D.N.Y. 2014) (“To plead a claim of age discrimination under the ADEA, the plaintiff must allege sufficient facts to support a plausible inference that [ ]he suffered an adverse employment action because of [his] age.”); Sanders-Peay v. N.Y.C. Dep’t of Educ., No. 14-4534 (CBA)(MDG), 2014 WL 6473507, at *3 (E.D.N.Y. Nov. 18, 2014) (“Naked assertions of [age] discrimination … without any specific factual allegation of a causal link between the defendants’ conduct and the plaintiff’s protected characteristic are too conclusory to withstand a motion to dismiss.”) (internal quotation marks omitted).

Rather, Plaintiff simply states that: (1) Mario told him at one point that “this is a young man[’]s game,” and (2) he was not given additional shifts and “the same opportunity to generate income[ ] [as] [his] co-workers.” Pet. at 5. But Plaintiff provides no additional detail or context with respect to Mario’s alleged comment. In any event, a stray remark, by-itself, cannot satisfy a claim for employment discrimination. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998); McNamara v. Associated Press, 40 F. Supp. 3d 345, 355 (2d Cir. 2014) (“[A]lthough a stray remark may lend support to [a] plaintiff’s age discrimination claim when considered with other evidence, ‘by itself such remarks are usually not sufficient proof to show age discrimination.’ ”) (quoting Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000)).

Nor does Plaintiff adequately allege that his co-workers who supposedly faced no adverse employment actions were similarly situated to himself. See, e.g., Smith v. City of N.Y., 16-CV-9244 (JGK), 2018 WL 3392872, at *4 (S.D.N.Y. July 12, 2018) (“To establish an inference of discrimination based on similarly situated employees, a plaintiff must allege that [he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [himself],” such as whether they were subject to “the same workplace standards”). Indeed, Plaintiff does not provide any characteristics of his co-workers, including whether these persons were even under the age of forty or if Defendant knew their ages.

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