In Rollins v. Fencers Club, Inc. (App. Div. 1st Dept. May 5, 2015), the Appellate Division, First Department affirmed the denial of defendants’ motion for summary judgment dismissing plaintiff’s complaint alleging age discrimination in violation of the NYC Human Rights Law. As a result, plaintiff gets a trial on her claims.
The court analyzed plaintiff’s claim under the McDonnell Douglas v. Green burden-shifting framework.
Initially, the court held that plaintiff presented sufficient evidence to establish her prima facie case, namely, “that plaintiff was disadvantaged under circumstances giving rise to an inference of discrimination.” It explained:
Plaintiff testified that Elizabeth Cross, the Club board member who succeeded plaintiff as executive director, “very frequently” made references to plaintiff’s age, including by saying, “Are you sure you’re up for this? You know you’re at that age where you . . . need more rest. You look tired,” and asking whether plaintiff was “up for” meetings that “might be too much” for her and would “tire [her] out.” Notwithstanding the dissent’s dismissive characterization of these statements as “stray remarks” and, more incredibly, as the concern of a solicitous employer, as if they had no discriminatory import or implication, we find that when plaintiff’s testimony is credited for purposes of this motion, these remarks directly reflect age-based discriminatory bias on Cross’s part, and raise an inference of age-related bias sufficient to make out plaintiff’s prima facie case of employment discrimination. …
Under these circumstances, the fact that several of the persons involved in the decision to fire plaintiff were close to her in age, and thereby in the same protected class, does not vitiate the inference of discriminatory animus raised by Cross’s claimed remarks. In particular, Elizabeth Cross’s age of 53 does not eliminate the import or weight of her remarks; indeed, she was not only implying that plaintiff, at 59, almost 60, was infirm, but was also implicitly suggesting that the board should view Cross herself, at 53, as a member of a younger age group than that in which she placed plaintiff. Nor is the discriminatory inference negated because plaintiff was hired at the age of 58. When plaintiff was hired, Cross was not a part of the decision-making process; however, Cross was allegedly a prime mover in the board’s decision to fire plaintiff, and her discriminatory impulse may be attributable to the board.
In response to defendants’ contention that plaintiff was fired for poor performance and other deficiencies, plaintiff presented sufficient evidence – including a letter praising plaintiff’s work and a bonus awarded to her – that was pretextual because it showed “that at least one of the reasons proffered by defendant is false, misleading, or incomplete”.