In Miller v. News Am., 2018 NY Slip Op 03946 (App. Div. 1st Dept. June 5, 2018), the court affirmed the dismissal of plaintiff’s age discrimination and retaliation under the New York State and City Human Rights Laws.
From the decision:
Plaintiff minimally established a prima facie case of age discrimination by demonstrating that he was a member of a protected class, that he was qualified to work as a freelance sports photographer, and that defendant reduced the number of assignments it offered him under circumstances giving rise to a an inference of age discrimination … .
To rebut this prima facie case, defendant established a legitimate, nondiscriminatory reason for reducing the number of assignments it offered plaintiff … . The managing editor testified about his longstanding, documented dissatisfaction with the quality of plaintiff’s work and plaintiff’s lack of professionalism, which he discussed with plaintiff on several occasions. Plaintiff concedes that the number of his assignments was decreased after July 2010, when he abandoned a critical assignment. Defendant also demonstrated that it employed other freelance sports photographers who were as old as, and older than, plaintiff and that these photographers did not suffer a reduction in the number of assignments they were offered.
Plaintiff failed to raise an issue of fact as to whether defendant’s stated reasons for reducing the number of assignments it offered him were pretextual … or whether discrimination was one of the motivating factors for the adverse employment action … . Indeed, plaintiff testified that no manager, supervisor or anyone responsible for job assignments had ever made a derogatory comment about his age. In addition, he had considerable difficulty recollecting the July 28, 2010 conversation in which, the complaint alleges, an employee of defendant, who, in any event was not responsible for assigning freelance projects, suggested that plaintiff was getting too old to do his job.