Age Discrimination Dismissal Affirmed; “Old School” and Other Comments Held Insufficient

In Sicola v Cushman & Wakefield, No. 160229/15, 16600, 2021-03378, 2022 N.Y. Slip Op. 06185, 2022 WL 16640723, at *2 (N.Y.A.D. 1 Dept., Nov. 03, 2022), the court affirmed the dismissal of plaintiff’s age discrimination claim asserted under California law (specifically, California’s Fair Employment and Housing Act, or FEHA).

From the decision:

To make out a prima facie claim for discrimination under the statute, a plaintiff “must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive” (Guz v. Bechtel Natl., Inc., 24 Cal 4th 317, 355 [2000]). Once the plaintiff makes a prima facie showing, the employer is required to adduce a “legitimate, nondiscriminatory reason” for its adverse employment action, and upon such a showing, the plaintiff must then demonstrate that the proffered reason was pretext for discrimination or offer other evidence of discriminatory motive (id. at 355–356). Here, as noted above, defendant proffered legitimate, nondiscriminatory reasons for the adverse employment actions, and plaintiff failed to raise a triable issue of fact as to improper motive. The stray remarks by various individuals that she was “backward-looking,” of “the past,” and was “old school” were insufficient to suggest age discrimination.

The court also held that the lower court properly dismissed plaintiff’s retaliation claim.

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