In Cagino v. Meg Levine et al, No. 532458, 2021 WL 5113121 (N.Y.A.D. 3 Dept. Nov. 04, 2021), the court, inter alia, affirmed the dismissal of plaintiff’s age discrimination claim asserted under the New York State Human Rights Law.
After affirming the dismissal of plaintiff’s religious discrimination claim, the court explained:
We reach a similar conclusion regarding plaintiff’s cause of action for age discrimination. Plaintiff alleged that defendants discriminated against him in filling the position with “a younger person with no prior management or supervisory experience.” Although an employer’s knowledge of a significant age discrepancy between candidates for a particular position may give rise to an inference of age discrimination (see e.g. Testa v. Carefusion, 305 F Supp 3d 423, 436 [ED N.Y.2018]; see generally Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 77 [2017] ), the pleading here is silent as to the age of the successful candidate, leaving plaintiff to rely upon defendants’ alleged inquiries regarding when he was going to retire and defendant Meg Levine’s alleged statement that she did not want to fill the position with someone who was near retirement to give rise to an inference of discrimination.
Accepting such statement and inquiries as true, merely inquiring as to an employee’s retirement plans is – standing alone – insufficient to establish discriminatory intent (see e.g. Lefevers v. GAF Fiberglass Corp., 667 F3d 721, 724 [6th Cir2012]; Mike v. Haylor, Freyer & Coon, 169 A.D.2d 911, 911–912 [1991] ). Indeed, “discussion of retirement is common in offices, even between supervisors and employees,” and “even direct references to a plaintiff’s age are not necessarily indicative of discrimination” (Hamilton v. Mount Sinai Hosp., 528 F Supp 2d 431, 447 [SD N.Y.2007], affd 331 Fed Appx 874 [2d Cir2009] ), as employers have legitimate business interests in planning to fill vacancies (see id.) and assessing “the economic consequences of [their] employment decisions” (Criley v. Delta Air Lines, Inc., 119 F3d 102, 105 [2d Cir1997], cert denied 522 U.S. 1028 [1997] ). Absent “further indicia of age-related animus” (McGuire–Welch v. House of the Good Shepherd, 219 F Supp 3d 330, 344 [ND N.Y.2016], affd 720 Fed Appx 58 [2d Cir2018] ), plaintiff’s cause of action for age discrimination was properly dismissed.
The court rejected plaintiff’s assertion that NYS Human Rights Law § 300 imposes a lesser pleading requirement, reasoning that “[n]either the liberal construction of the Human Rights Law” codified in § 300 “nor a favorable reading of plaintiff’s complaint obviates the need for plaintiff to allege sufficient facts to state a cause of action for discrimination in the first instance.”