Age Discrimination Claim Dismissed; Court Finds That Sexual Harassment Allegation Against Plaintiff Was a More Likely Cause of Termination Than “Remote” Age-Related Comment

In Lively v. WAFRA Investment Advisory Group, Inc. et al, 2020 WL 4038350 (S.D.N.Y. July 17, 2020), the court, inter alia, granted defendant’s motion for judgment on the pleadings (under Federal Rule of Civil Procedure 12(c)) on plaintiff’s claim of age discrimination under the Age Discrimination in Employment Act (ADEA).

From the decision:

The complaint contains only one nonconclusory allegation in support of Lively’s argument that age was the reason for his termination: his boss Al-Mubaraki’s “making negative comments about [his] age.” (Compl. ¶ 13.) Although Lively insinuates this was a regular occurrence (id.), he cites only one specific instance of this happening: a November 13, 2017, “after-hours gathering” where Al-Mubaraki allegedly told Lively’s son that “WAFRA needed to replace older employees like his father with younger employees like Lively’s son.” (Compl. ¶ 14.) This alleged comment, however, was made almost six months before Lively was terminated. (Id.) The gap between the sole alleged comment and the subsequent termination is significant because “ ‘[s]tray remarks … are rarely given great weight, particularly if they were made temporally remote [from] the date of the decision.’ ” Campbell v. All. Nat’l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000) (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)); see also Moore v. Verizon, No. 13-CV-6467, 2016 WL 825001, at *8 (S.D.N.Y. Feb. 5, 2016) (Sullivan, J.) (“[S]tray remarks, even if made by a decision maker, do not constitute sufficient evidence to support a case of employment discrimination.”).

More importantly, any inference of but-for causation is undermined by the existence of a far more plausible cause of Lively’s termination: the allegations of sexual harassment and discrimination made against Lively by another employee.3 Nearly six months separate the alleged comment by Al-Mubaraki from Lively’s termination (see Compl. ¶ 14.), while less than a month separates the claims of sexual misconduct made against Lively and his termination (see Answer at 2). A far stronger “nexus,” then, exists between the sexual harassment claims against Lively and WAFRA’s decision to discharge him.

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Commentary: This decision aptly illustrates how the ADEA’s heightened “but for” causation standard, as articulated by the Supreme Court in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009), operates where allegations of discrimination/sexual harassment against the plaintiff are proffered as the reason for adverse employment action(s) taken against the plaintiff.

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