Gender & Age Discrimination Claims Sufficiently Alleged Against NYC Dept. of Education

In Alvarez v. New York City Department of Education, 2021 WL 1424851 (S.D.N.Y. April 15, 2021), the court, inter alia, held that plaintiff sufficiently alleged her claims of age- and gender-based employment discrimination.

The court summarized the law as follows:

“The Second Circuit has not created an unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision.” Henny v. N.Y. State, 842 F. Supp. 2d 530, 553 (S.D.N.Y. 2012) (internal quotation marks omitted). That said, “the level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low.” De La Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). Plaintiff does not, and need not, allege “direct evidence of discriminatory animus.” Henny, 842 F. Supp. 2d at 553. “A victim of discrimination is … seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence.” Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).

In the Second Circuit, “[a] showing of disparate treatment—that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group—is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case” of employment discrimination. Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks omitted); see also D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007) (finding that “circumstances [gave] rise to an inference of discrimination” where plaintiff was rejected for a job twice in favor of those younger than him); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (“A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.”).

Applying the law, the court explained:

Here, Plaintiff has alleged a similar theory of disparate treatment related to an adverse employment decision: she lost her ENL class, resulting in significantly reduced responsibilities, while a younger male teacher with less experience retained his. See (Compl. ¶¶ 25–29.) Such allegations sufficiently establish an inference of discrimination for purposes of surviving a motion to dismiss.5 Defendant claims that Plaintiff has not properly alleged that Martinez and Plaintiff are “similarly situated in all material respects,” meaning that Plaintiff cannot properly establish a prima facie claim based on disparate treatment. (Doc. 11, at 8) (quoting Day v. City of N.Y., No. 15 Civ. 4399 (GDH)(HBP), 2015 U.S. Dist. LEXIS 161206, at *45 (S.D.N.Y. Nov. 30, 2015)). Yet Day itself notes that “[o]rdinarily, whether two employees are similarly situated … presents a question of fact,’ rather than a legal question to be resolved on a motion to dismiss.” Day, 2015 U.S. Dist. LEXIS 161206, at *46 (quoting Brown v. Daikin Am., Inc., 756 F.3d 219, 230 (2d Cir. 2014)).

The court concluded that while the parties disagreed as to Plaintiff’s and Martinez’s relative qualifications, that was a factual dispute that should not be decided at this stage, and the plaintiff’s contentions, taken as true (as is required on defendant’s motion to dismiss), were sufficient to establish an inference of discrimination as part of plaintiff’s prima facie case.

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