In Brager v. Quality Bldg. Services Corp., No. 155832/2021, 2022 WL 1599529 (N.Y. Sup. Ct. NY Cty. May 20, 2022), the court, inter alia, dismissed plaintiff’s age and national origin-based hostile work environment claim as insufficiently pled.
As to plaintiff’s age discrimination claim, the court explained:
Plaintiff’s allegations regarding the alleged hostile work environment related to age discrimination, namely, that Mirjanic “favored” younger employees and typically hired them over older employees, are not only vague and conclusory, but in general constitute the types of petty slights or trivial inconveniences that are not actionable. He concedes that he was not the only employee subjected to Mirjanic’s alleged abuse, and he cites no age-based comments made by Mirjanic, nor any intimidation, ridicule, or insult based on age.
The fact that he was hired by Mirjanic negates the inference that she discriminated against plaintiff because of his age. (See e.g., Carlton v Mystic Transp., 202 F3d 129 [2d Cir 2000] [when same actor hires person within protected class and then later fires him or her, it is difficult to impute a discriminatory motivation to actor]). Moreover, that plaintiff’s duties were given to someone younger than him, by itself, does not establish that it was based on age discrimination. (See Green v Citibank, N.A., 299 AD2d 182 [1st Dept 2002] [replacement by a younger employee not enough to support claim of age discrimination absent other facts]; Demay v Miller & Wrubel P.C., 262 AD2d 184, 185 [1st Dept 1999] [allegation that plaintiff was replaced by younger employee insufficient to support age discrimination claim absent age-related comments or evidence that younger employee was desired]). Plaintiff’s thus fails to state a claim for age-based hostile work environment under federal, state, or city law.
As to plaintiff’s national origin claim, plaintiff alleged that defendant Mirjanic treated Albanians better than non-Albanians. However, the court held plaintiff did not offer any factual support that defendant Mirjanic is Albanian, nor for his allegation that other employees favored or hired by her were also Albanian and not Jewish. In addition, held the court, “being Jewish is not a covered national origin category.”