In Bennett v. Time Warner Cable, the Supreme Court, New York County, held that plaintiffs sufficiently pleaded age discrimination claims under both a “disparate treatment” and “disparate impact” theory.
Here are the alleged facts, as summarized by the court:
Plaintiffs, whose ages range between 51 and 69, are employees of TWC, and until about September 2013, held the position of General Foreman. Complaint, ¶¶ 3-17, 23. Each plaintiff held the General Foreman position for many years and performed his job satisfactorily, receiving positive performance evaluations and bonuses. Id., ¶ 28. In or around September 2013, TWC took away the General Foreman title and job duties from plaintiffs, and plaintiffs were effectively demoted, receiving a reduction in pay, and decreased overtime opportunities and monetary bonuses. Id., ¶¶ 29-30. TWC subsequently assigned plaintiffs’ General Foreman job duties to newly hired younger employees with less experience than plaintiffs. Id., ¶ 31. Plaintiffs also allege that TWC management representatives made age-related comments to various plaintiffs, including remarks about plaintiffs’ gray hair, and statements that they “don’t have much more time left” before retiring and that they are now “in the 21st Century.” Id., ¶ 32.
Defendants moved to dismiss plaintiffs’ claims under CPLR 3211(a)(7). At this stage, the court’s role is “not to determine whether there is evidentiary support for the complaint”, but rather to “determine only whether the facts as alleged fit within any cognizable legal theory.”
Under New York law, “employment discrimination claims are assessed “under a particularly relaxed `notice pleading’ standard.”
The court, analyzing plaintiffs’ claims through the lens of CPLR 3211(a)(7) and its interpretive case law, denied defendant’s motion.
As to plaintiffs’ disparate treatment claim, the court held:
Here, plaintiffs allege that they are employees in their 50’s and 60’s, and, as such, are members of a protected class based on age; that they were qualified for the General Foreman position, having held the position satisfactorily for many years; that they were subjected to an adverse action when the General Foreman position was eliminated and they were demoted; and that the work they performed as General Foremen was assigned to newly hired, younger employees. Taking all of the allegations in the complaint as true, and resolving all inferences in favor of the plaintiffs, as the court must, the complaint sufficiently states a cause of action for age discrimination.
Next, the court held that plaintiffs sufficiently alleged discrimination on a “disparate impact” theory. It explained:
[D]isparate treatment and disparate impact theories of recovery are simply alternative doctrinal premises for a statutory violation. The major difference between the theories is that disparate treatment claims require proof of discriminatory intent, while disparate impact claims do not. Disparate impact claims instead are based on allegations that a facially neutral practice or policy has a disparate adverse effect on members of a protected class.
Noting that the Court of Appeals has not addressed the question of whether a disparate impact claim is cognizable in an age discrimination case under New York law, the court declined to adopt defendant’s argument, based on the Third Department’s decision in Bohlke v. General Electric Co., that a disparate impact claims are not actionable under the New York State and City Human Rights Laws.