Absence of Ageist Comments Dooms Age Discrimination Case at the “Pretext” Stage

In Hu v. UGL Services Unicco Operations Co., decided October 9, 2014, the Southern District of New York dismissed plaintiff’s age discrimination claims under the federal Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).

One take-away point from this case is that in an age discrimination case, the plaintiff must do more – even under the comparatively broad NYCHRL – than demonstrate that, for example, they were fired and replaced by someone even significantly younger.

Although plaintiff, who worked for defendant as an HVAC engineer, arguably presented a “prima facie case” of discrimination by showing that one of the two employees who replaced him was 18 years younger than him, he failed to demonstrate that defendant’s proffered legitimate non-discriminatory reason for discharging him – namely, his “substandard performance” – was pretextual, and that his age was the “but-for” cause of his termination.

Specifically, plaintiff

points to no evidence that any supervisor or colleague ever made any comments relating to his age or took any action that was conceivably motivated by age discrimination. At his deposition, he articulated no reason for his belief that he was discriminated against due to his age, stating only that his supervisors “maybe … just don’t like [him]” and repeating his conclusory assertion that “they discriminated against [him].” However, “[t]he plaintiff’s belief that [he] has been the victim of age discrimination cannot defeat a motion for summary judgment in the absence of any corroborating evidence.”

Therefore, the court granted summary judgment for defendant on plaintiff’s claims under the ADEA and NYSHRL.

Plaintiff also failed to establish discrimination under the more lenient NYCHRL standard, which merely required him to show that his employer “treated him less well, at least in part for a discriminatory reason.” In rejecting this claim, the court reasoned:

The only evidence Plaintiff has pointed to that conceivably indicates discrimination is that Defendant hired an individual who was eighteen years younger than Plaintiff. While this fact is sufficient to establish a rebuttable inference for purposes of McDonnell Douglas, drawing all inferences in favor of Plaintiff, a reasonable jury could not conclude that this fact in and of itself establishes that Defendant did in fact treat him less well than other employees or that Defendant did so for a discriminatory reason.

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