Age Discrimination Sufficiently Alleged; Plaintiff Was Terminated and Replaced by Employee 10 Years Younger

In Gough v. Remedy Partners, LLC, No. 650623/2020, 2022 WL 2612436 (N.Y. Sup Ct, New York County July 07, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of age discrimination asserted under the New York State and City Human Rights Laws.

From the decision:

The complaint alleges that plaintiff was terminated from his position and was replaced by an employee who is 10 years younger than him (NYSCEF Doc No. 24, ¶¶ 101-104). While the fact that plaintiff’s replacement was younger than him, standing alone, may not be sufficient for purposes of establishing a prima facie case of age discrimination on summary judgment (see Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58, 67 [1st Dcpt 2020]), a motion to dismiss tests the adequacy of a pleading, not whether a party will ultimately prevail on a claim (see Oluwo v Sutton, — AD3d –, 2022 NY Slip Op 03734, *2 [2d Dept 2022]).

According plaintiff the benefit of every possible favorable inference, the allegations arc sufficient to plead a cause of action for age discrimination under the State and City HRLs (see Terranova v Liberty Lines Transit, Inc., 292 AD2d 441, 442-443 [2d Dcpt 2002] [denying a motion to dismiss on the ground that allegations the plaintiff was demoted and replaced by a younger employee were sufficient to plead an age discrimination claim]; Bennett v Time Warner Cable, Inc., 2014 NY Slip Op 33007[U], *6 [Sup Ct, NY County 2014], affd 138 AD3d 598 [1st Dept 2016] [denying a pre-answer motion to dismiss where the complaint alleged that the plaintiffs were subjected to adverse action when their positions were eliminated and the work they performed was assigned to newly hired, younger employees]; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621-622 [1st Dept 2013] [granting dismissal where the complaint lacked concrete factual allegations to support an age discrimination claim]).

Defendant also argues that plaintiff’s termination was an economic decision as the complaint contains allegations that defendant paid plaintiff’s replacement a lower salary and offered her fewer stock options and benefits (NYSCEF Doc No. 24, ¶¶ 102 and 104). However, these allegations do not necessarily negate the assertion that plaintiff was replaced by a younger employee. In any event, the argument that plaintiff’s termination may have been motivated by economic factors may be more appropriate for summary judgment (see e.g. Green v Citibank, 299 AD2d 182, 182 [1st Dept 2002] [granting summary judgment where the plaintiff’s termination was part of an effort to reduce costs in the department]).

Defendant further argues that plaintiff was already in the protected class when he was hired, and “[b]eing in the protected class when hired undermines any inference of age discrimination” (Baguer v Spanish Broad Sys., 2010 WL 2813632, *14, 2010 US Dist LEXIS 69212, * 41 [SD NY, July 12, 2010, No. 04 Civ. 8393 (RJS)], affd 423 Fed Appx 102 [2d Cir 2011]). While this court is not obligated to follow federal casclaw, whether the plaintiff in Baguer was already a member of a protected class when he was hired was just one factor in determining whether he had satisfied his initial burden under the burden-shifting framework described in McDonnell Douglas Corp. v Green (411 US 792, 802-803 [1973]) for analyzing employment discrimination cases (Baguer, 2010 WL 2813632, *14-15, 2010 US Dist LEXIS 69212, *39-42). Moreover, Baguer involved a motion for summary judgment, whereas here, defendant moved for pre-answer dismissal. Consequently, the motion insofar as it seeks dismissal of the third and fourth causes of action is denied.

The court also denied defendant’s motion to dismiss plaintiff’s whistleblower retaliation claim asserted under New York Labor Law § 740.

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