In DeLaRosa v. New York City Department of Education et al, 21-CV-4051 (JPO), 2022 WL 2752589 (S.D.N.Y. July 14, 2022), the court, inter alia, held that plaintiff sufficiently alleged age discrimination under the Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law, and the New York City Human Rights Law.
From the decision:
Plaintiff has stated a disparate treatment claim under the ADEA, NYSHRL, and NYCHRL from allegations contained in the amended complaint. The ADEA provides that an employer may not “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In an age discrimination case, to survive a motion to dismiss, a plaintiff need only “plausibly allege that she is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Zoulas v. New York City Dep’t of Educ., 400 F. Supp. 3d 25, 51 (S.D.N.Y. 2019) (quotation marks omitted). “[T]o defeat a motion to dismiss … an ADEA plaintiff must plausibly allege that he would not have [suffered the adverse employment action] but for his age.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021). “Discrimination claims under the NYSHRL are largely subject to the same analysis.” Brown v. Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014). The NYCHRL does not require a plaintiff to identify a “materially adverse employment action[ ].” Mihalik v. Credit Agricole Chevreux N. Am., Inc., 715 F.3d 102, 114 (2d Cir. 2013).
Defendants move to dismiss the disparate treatment claim on the grounds that Plaintiff has not identified an adverse employment action or raised an inference of discriminatory intent. (See Dkt. No. 21 (“Defs.’ Memo”) at 12-17.) A plaintiff alleges an adverse employment action under the ADEA if she raises an inference that she has “endure[d] a materially adverse change in the terms and conditions of employment.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007). Such changes include “a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.” Id. As for discriminatory intent, an inference of such intent “can arise from circumstances including, but not limited to, the employer’s criticism of the plaintiff’s performance in … degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s [adverse employment action].” Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015).
The amended complaint adequately alleges at least two adverse employment actions supported by an inference of discriminatory intent. First, the amended complaint alleges that Plaintiff had been involved with a college readiness program called “College Access for All” for “many years,” but Principal Delarosa “excluded” her from the program. (FAC ¶ 13.) Instead, Principal Delarosa gave younger assistant principals “extra monies for per session activities” involving the program. (See id.) Such exclusion amounts to a “material loss of benefits.” Kassner, 496 F.3d at 238. And the “more favorable treatment” of younger assistant principals raises an inference of discriminatory intent. Littlejohn, 795 F.3d at 312; see Alvarez v. New York City Dep’t of Educ., No. 20-CV-255, 2021 WL 1424851, at *9 (S.D.N.Y. Apr. 15, 2021). Second, Plaintiff alleges that Principal Delarosa gave work to the two younger assistant principals “for summer school for a few weeks for the upcoming summer” but denied Plaintiff summer work. (See FAC ¶ 41.) That denial, which prevented Plaintiff from earning additional wages, amounts to an adverse change. See Kassner, 496 F.3d at 238. And such differential treatment raises an inference of discriminatory intent. See Littlejohn, 795 F.3d at 312; Alexander v. New York City Dep’t of Educ., No. 19-CV-7023, 2021 WL 7027509, at *6 (S.D.N.Y. Nov. 30, 2020).
The court concluded that “[b]ecause at least some of Plaintiff’s allegations make out a disparate treatment claim, that claim survives.”
It additionally held that plaintiff sufficiently alleged a retaliation claim, but not a hostile work environment claim.