ADEA Age Discrimination Claim Dismissed; NYC Human Rights Law Age Discrimination Claim Survives (Sort Of)

Schlosser v. Time Warner Cable Inc., No. 14CV9349, 2017 WL 2468975 (S.D.N.Y. June 7, 2017) (J. Pauley), a recent federal court decision, highlights the difference between federal anti-discrimination law (here, the Age Discrimination in Employment Act) and the comparatively broader New York City Human Rights Law.

The court dismissed plaintiff’s ADEA claim, holding that the non-discriminatory reason for refusing to hire the plaintiff was not pretext for unlawful age discrimination:

The record is devoid of any evidence to show that Time Warner offered pretextual, non-discriminatory reasons to conceal the sole, but-for reason it refused to hire Schlosser—his age. Schlosser claims that Time Warner’s reliance on his previous performance issues—in spite of his thirty-nine years of experience and his “far superior” qualifications—constitutes pretext. But the documentary evidence in the record dispels any notion that Schlosser’s age was the sole, controlling reason why he was not hired. Schlosser’s Final Written Warning and previous performance review sufficiently substantiate Time Warner’s view that Schlosser was not the best candidate for the positions to which he applied. Setting aside the supervisory and managerial shortcomings memorialized in both the Final Written Warning and performance review, Schlosser was generally perceived by others at the company as “unapproachable to speak with” due to his harsh demeanor. (SMF ¶ 20.) That fact only bolsters Time Warner’s non-discriminatory, discretionary decision not to hire Schlosser.

The court reached the opposite conclusion, however, with respect to plaintiff’s claim under the New York City Human Rights Law.

It explained the key differences between the ADEA and the city law:

The NYCHRL requires that courts give the statute an independent and more liberal construction than its federal and state counterparts. [] The NYCHRL’s elements differ materially from those under the ADEA. For example, a plaintiff need not show that an employment action was materially adverse and must simply how that she was treated different from others in a way that was more than trivial, substantial, or petty. [] Moreover, the inference of discrimination prong of the prima facie case is satisfied if a member of a protected class was treated differently than a worker who was not a member of that protected class. []
Most importantly, the but-for causation standard does not apply to age discrimination claims brought under the NYCHRL. Rather, the NYCHRL requires only that a plaintiff prove that age was a motivating factor’ for an adverse employment action.

Applying the law, the court held:

While the record evidence falls short of raising a genuine dispute regarding whether age was a but-for cause of Time Warner’s refusal to hire Schlosser, it is sufficient for purposes of asserting a claim under the NYCHRL. Here, Schlosser was rejected repeatedly from both managerial and entry level positions, most of which were offered to applicants substantially younger than Schlosser. His sole interview appears to have been given on the basis of a “formality” without much regard for his qualifications. And while the brevity and substance of that interview do not create a factual dispute as to whether his age was the controlling reason why he was not hired, they may create a genuine dispute when analyzed under the NYCHRL’s liberal standard—that Schlosser’s age was in part, a motivating factor, underlying Time Warner’s decision to pass on him.

The court, however, having dismissed plaintiff’s federal (ADEA) claim, declined to exercise jurisdiction over his NYCHRL claim, and dismissed it without prejudice to refiling it in state court.

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