Attorney’s ADEA Age Discrimination Claim Survives Dismissal

In Wallace v. Esper, 18-cv-6525, 2019 WL 4805813 (S.D.N.Y. Sept. 30, 2019), the court, inter alia, denied plaintiff’s claim of age discrimination under the Age Discrimination in Employment Act (ADEA).

From the decision:

Wallace has also “ple[d] sufficient facts … to plausibly support a minimal inference of ‘but-for’ causality between [her] age” and these adverse employment actions. See Marcus v. Leviton Mfg. Co., 661 Fed. App’x 29, 32–33 (2d Cir. 2016). First, Wallace alleges that she was the oldest member in her unit, that Defendant had not hired anyone above the age of 40 since 2010, and that she was effectively, then actually, replaced by someone several years younger. These allegations help to support an inference of age discrimination. See Alejandro v. New York City Dep’t of Educ., No. 15-CV-3346 (AJN), 2017 WL 1215756, at *13 (S.D.N.Y. Mar. 31, 2017) (delegation of plaintiff’s “long-time responsibilities” to much younger, newly hired employees gave rise to an inference of age discrimination), appeal dismissed, No. 17-1278 (2d Cir. Aug. 28, 2017); Burger v. New York Inst. of Tech., 94 F.3d 830, 834 (2d Cir. 1996) (considering that plaintiff employee was the oldest in her department as relevant factor in concluding that she established a prima facie case).

This Court has recently held that similar allegations, without more, do not raise the requisite inference of but-for causation under the ADEA. See Spires v. Metlife Group, Inc., No. 18-CV-4464 (RA), 2019 WL 4464393, at *7 (S.D.N.Y. Sept. 18, 2019) (dismissing ADEA claim based solely on the plaintiff’s contention that he was the oldest staff member in his department and that the position he was denied was given to a less qualified, younger employee). Here, however, Wallace does plead more; as previously noted, she alleges that her supervisors, Lee and McAndrew, made several ageist comments in connection with Defendant’s hiring practices. Compl. ¶¶ 80–83, 86 (alleging that Lee and McAndrew stated that the USACE Chief Counsel’s policy is to hire “only young attorneys,” that Defendant “does not need old lawyers,” “is hiring only young lawyers,” and “the younger, the better”). The fact that these comments were purportedly made in 2014 and 2015—well before the reassignment of Wallace’s litigation work in 2016 and her termination in 2017—does undercut their probative value. … But because the comments clearly reflect an intent to discriminate in employment practices based on age, and because they were allegedly made by Lee—who Wallace claims personally removed her responsibilities and played a key role in her termination—the Court finds that they ultimately support to an inference that Wallace experienced the adverse actions because of her age.

Upon considering plaintiff’s complaint’s allegations in their entirety, and drawing all reasonable inferences in plaintiff’s favor – as it must, in the procedural posture here – the court held that plaintiff “has pled just enough to nudge her ADEA claim across the line from conceivable to plausible to proceed.”

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