ADEA Claim Insufficiently Alleged Against PetSmart; Motion to Amend Deniedismissed Against PetSmart

In Hooper v. PetSmart, Inc. et al, 2019 WL 4888651 (EDNY Sept. 30, 2019), the court denied plaintiff’s motion to amend an age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA).

The court held that plaintiff’s ADEA claim had three flaws; its discussion of each succinctly highlights important features of the law in this area – namely, administrative exhaustion, the statute of limitations, and causation.

From the decision:

First, plaintiff did not allege age discrimination in the Charge of Discrimination he filed with the EEOC. He did not mention his age and checked the box to indicate he was alleging only “retaliation.” The facts alleged in the narrative plaintiff attached to the Charge also did not suggest age discrimination. Accordingly, it seems likely plaintiff did not exhaust his age discrimination claims.

Second, the age discrimination claims are time-barred. The right-to-sue letter was dated February 27, 2018, and advised plaintiff that he had to commence his employment discrimination action within 90 days of his receipt of the letter.5 Although plaintiff commenced this action on April 3, 2018, he did not request permission to add an employment discrimination claim until November 2018.

Third, the allegations in plaintiff’s own pleadings suggest mixed motives for plaintiff’s termination. The Supreme Court has held that a “plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Thus, plaintiff must establish “that age was the ‘reason’ that the employer decided to act,” and “not just a motivating factor.” Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019) (quoting Gross, 557 U.S. 176). In this case, plaintiff’s pleadings – including the Proposed SAC – imply that Treanor was motivated by plaintiff’s refusal to fire the two managers, and not solely because of plaintiff’s age.

Based on this, the court held that an amendment to add such a claim would be futile.