In Spiegel v 226 Realty LLC, No. 150371/13, 2023–03102, 2805, 2024 N.Y. Slip Op. 05076, 2024 WL 4486892 (N.Y.A.D. 1 Dept., Oct. 15, 2024), the Appellate Division, First Department, unanimously reversed the lower court’s award of summary judgment to defendants on plaintiff’s claims of age discrimination asserted under the New York State and City Human Rights Laws.
From the decision:
We also find that plaintiff’s evidence raises issues of fact on his age discrimination claims against defendants 47th Street Management Co. and Edison Hotel Management Company, thus precluding dismissal of those claims under both the State and City HRLs. Defendants established, prima facie, that plaintiff, a hotel front desk agent, was terminated for the legitimate, nondiscriminatory reason that he engaged in a hostile altercation with the hotel’s owner, for which an arbitrator found the hotel had just cause to fire plaintiff. In opposition, plaintiff submitted evidence that the hotel’s general manager, who participated in the decision to terminate plaintiff, told front desk managers about a plan to fill front desk positions “with young and attractive individuals,” naming as examples two front desk agents in their twenties. The hotel’s list of front desk employees hired between 2006 and 2012 shows that plaintiff was the oldest and that the two most recent hires were decades younger.
Plaintiff’s evidence that the hotel had twice attempted to terminate him for reasons found by arbitrators to be unsubstantiated, failed to interview him about the incident giving rise to his third termination, and prohibited testimony favorable to him from being offered at his third arbitration, as well as evidence that the arbitrator found plaintiff’s grievance to be a close case, could lead a reasonable jury to conclude that defendants’ proffered reason for the termination was “false, misleading, or incomplete” (Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 43, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432090 [2012]). Therefore, the evidence supports an inference of age discrimination sufficient to reach a jury (see Krebaum v. Capital One, N.A., 138 A.D.3d 528, 528, 29 N.Y.S.3d 351 [1st Dept. 2016]).
Evidence about a “game” during which plaintiff’s coworkers, including his supervisor, would “yell out” plaintiff’s name when they saw “a guest walking through the lobby who was particularly aged and feeble-looking,” and “then erupt in raucous laughter,” also raises issues of fact as to plaintiff’s discrimination claim under the City HRL by showing that he was “treated differently or less well than other employees” because of his age (Gordon v. Bayrock Sapir Org. LLC, 161 A.D.3d 480, 481, 76 N.Y.S.3d 157 [1st Dept. 2018] [internal quotation marks omitted]).
The court also reversed the lower court’s award of summary judgment on plaintiff’s whistleblower claim under New York Labor Law § 740.