In Brown v. Crowdtwist, the Southern District of New York (Judge Baer) recently denied defendant’s motion for summary judgment on plaintiff’s age discrimination claim under the New York City Human Rights Law.
The court held that the plaintiff, a 43-year old male, presented sufficient evidence that he was terminated by internet startup technology company Crowdtwist because of his age. Plaintiff cited age-related remarks, as well as the fact that he was replaced by a 37-year old, in support of his claims. In particular:
Plaintiff recounts frequent commentary from [Crowdtwist founder and Chief Operating Officer Josh] Bowen about his age and inability to “keep up” with the staff members who were in their 30s. Plaintiff started to work on December 20, 2011. These remarks began in late January, when Plaintiff started having pain in his abdomen later diagnosed as a hernia. Plaintiff says Bowen remarked that he needed to “get to the gym to keep up with everyone.” After Bowen took Plaintiff to the hospital on February 8th and heard Plaintiff give his birth date, Plaintiff says Bowen called him “an old man” and afterwards continued to make comments about his age and how he could not “keep up with young New Yorkers.” On March 5th, Plaintiff’s hernia was discovered and he was given an emergency operation to repair it. When Plaintiff called Bowen to notify him, Bowen once again joked about his “old age” and said, “Look what happens when you try to keep up [with] the thirty year olds.” Plaintiff claims that such comments were also made on numerous internal calls, where Bowen continued the refrain that “he could not keep up with the thirty year olds on the team.” On the advice of his doctor, Plaintiff worked from home and did not travel to Crowdtwist’s offices in New York until March 26th. Upon his return, he was asked about the injury in front of the staff and Bowen joked that it was “an old man injury.” Three days later, on March 29th, Plaintiff was terminated.
When evaluating remarks alleged to indicate discriminatory animus, the Second Circuit considers four factors, namely:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).
Applying these factors, the court held:
While Bowen was not Plaintiff’s direct supervisor, he was one of the three main decisionmakers in the firm, and undisputedly had input into Plaintiff’s termination. … While the comments were not explicitly connected to Plaintiff’s termination, some were made very close to the decision to terminate the Plaintiff, which occurred in late March. Finally, a reasonable juror could find that the comments showed Bowen’s discriminatory animus and that Bowen viewed Plaintiff as falling into a different age category than other employees and believed this inhibited his ability to perform in a fast-paced startup environment. While Defendant contends that these were stray remarks not sufficient to show discriminatory animus, the cases belie that concept. … While the comments are said to have been intended as jokes, whether they demonstrate discriminatory animus is for a jury to determine.
The court next considered, and rejected, defendant’s reliance on the “same actor inference” (i.e., their argument that “there could not have been discriminatory intent, because the same decision-makers who terminated Plaintiff hired him only three months prior, when he was virtually the same age.”) The doctrine was inapplicable, since it was debatable whether defendant actually knew plaintiff’s age when it hired him, and whether the same actors were in fact involved in the decisions to hire and fire plaintiff.
It also rejected defendant’s argument that “any inference of age discrimination is undercut where, as here, a plaintiff is over 40 years old when she is hired”, noting that while the federal Age Discrimination in Employment Act protects employees over 40, the New York City Human Rights Law has no age limitation.
Furthermore, the “mere five and a half year age gap between Plaintiff and his replacement” was not dispositive, since plaintiff was not relying solely on the age difference. Also, “a jury might well view a five year age difference as significant in the context of this case, where it places Plaintiff in his forties as opposed to his thirties.”
While defendant proffered numerous alleged nondiscriminatory reasons for plaintiff’s termination – such as plaintiff’s failure to generate new business or recruit new sales team members – plaintiff demonstrated that “a reasonable jury could find that Defendant’s explanation is at least partially pretextual and that unlawful discrimination was one of the motivating factors in his termination.” Plaintiff raised material issues of fact as to “what he was given to understand were the expectations for his performance and what he in fact accomplished”. Since defendant relied “almost exclusively on the testimony of its founders, all of these disputes require credibility determinations to resolve, a quintessential jury role.”