Age Discrimination (Failure-to-Hire) Claim Dismissed

In Diresta v. Biz2Credit Inc. et al, 21-cv-208, 2021 WL 6052104 (S.D.N.Y. Dec. 20, 2021), the court, inter alia, dismissed plaintiff’s claim of age discrimination asserted under the Age Discrimination in Employment Act of 1967.

From the decision:

The Amended Complaint does not allege facts that either provide “minimal support for the proposition that the employer was motivated by discriminatory intent,” Littlejohn, 795 F.3d at 311, or that DiResta’s age was the but-for cause of Defendants’ decision not to hire him, see Lively, 6 F.4th at 303. Here, DiResta plausibly alleges that Defendants hired a person significantly younger than him as he was weeks shy of 50 while the individual hired was 31 years old. However, allegations that someone younger took the place of the plaintiff, alone, are not sufficient to survive a motion to dismiss. Cf. Ndremizara, 93 F. Supp. 3d at 316–17 (collecting ADEA cases in which allegations that younger individuals replaced plaintiff are insufficient to survive a motion to dismiss); see also James v. Borough of Manhattan Community College, 2021 WL 5567848, at *7 (S.D.N.Y. Nov. 29, 2021).

Allegations that the younger individual hired was less qualified than DiResta might help “nudge [his] claims across the line from conceivable to plausible.” E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d at 254 (cleaned up). The Amended Complaint alleges that the younger individual was not and still is not licensed as an attorney in New York and had no experience with New York law, a qualification that Defendants allegedly sought. Though these allegations may speak to the younger individual’s qualifications, the Amended Complaint nowhere alleges that DiResta was licensed in New York or had any experience with New York law.

DiResta’s allegations regarding Defendants’ desire to have someone younger to report to Awan does not serve to nudge the complaint across the line to the plausible. Although he states that others at the company decided that he was not young enough for the position, he does not allege that he heard that comment or provide any other basis for that allegation, save for the speculation that because he was not hired and a younger person was hired, the decision must have been made because he was not young enough. “A [p]laintiff’s speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn.” Small v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) (alteration omitted) (quoting Little v. State of N.Y., 1998 WL 306545, at *6 (E.D.N.Y. June 8, 1998)). Without any allegation of how DiResta knows or why he believes that Defendants chose not to hire him because he was too old, the Amended Complaint fails to provide that minimal support for an inference of discriminatory intent necessary for this case to proceed to discovery. It also cannot serve to show that DiResta’s age was plausibly the but-for cause of the decision not to hire him.

The court did, however, grant plaintiff leave to amend his complaint to address the aforementioned deficiencies, noting that such an attempt would not be “futile.”

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