Court Affirms Dismissal of Age Discrimination Complaint

In Lively v. Wafra Inv. Advisory Group, Inc., 2022 NY Slip Op 06887 (N.Y. App. Div. 1st Dept. Dec. 6, 2022), the court, inter alia, unanimously affirmed the dismissal of plaintiff’s age discrimination asserted under the New York State and City Human Rights Laws.

From the decision:

Even under the lenient notice pleading standard afforded to employment discrimination claims under state law, the complaint fails to sufficiently allege age discrimination under State HRL (Executive Law § 296) or City HRL (Administrative Code of City of NY §§ 8-101, 8-107) (see e.g. Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). The complaint alleges that defendant Al-Mubaraki made negative comments about plaintiff’s age on a few occasions in the summer of 2017 and November 2017, but it fails to plead a causal connection between these remarks and his termination several months later (see Brown v City of New York, 188 AD3d 518, 519 [1st Dept 2020]). Moreover, during that time, plaintiff was allegedly promoted to a senior managing director position and was commended for his exceptional work by Al-Mubaraki during his 2017 and 2018 annual formal evaluations. Plaintiff also alleges that another Wafra employee had complained that he had sent the employee “written messages of a personal romantic nature,” and that he was terminated shortly after being notified of this complaint.

In addition, plaintiff failed to allege facts showing that the named comparators were terminated under similar circumstances or that younger employees were treated more [*2]favorably (see Thomas v Mintz, 182 AD3d 490, 490 [1st Dept 2020]; Pappas v Moody’s Inv. Serv., 202 AD3d 630, 630 [1st Dept 2022]). Indeed, plaintiff does not allege that any of the terminated “older” employees were replaced by younger workers. In light of the inadequate and inconsistent allegations in the complaint, and the lapse in time between Al-Mubaraki’s comment and plaintiff’s termination, the assertion that his termination was based on age discrimination is conclusory, and the claims under the State and City HRLs were properly dismissed.

[Cleaned up.]

While plaintiff’s claims were dismissed, there is one plaintiff-friendly premise emerging from this decision: namely, the court’s determination that the Second Circuit’s affirming the dismissal of plaintiff’s federal claim of age discrimination under the Age Discrimination in Employment Act (ADEA) did not preclude, based on collateral estoppel, plaintiff’s state and city law claims.

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