ADEA Age Discrimination Claim Survives Dismissal; “Smoking Gun” Evidence Not Required

In Goldblatt v. New York Institute of Technology, 2020 WL 5027150 (E.D.N.Y. August 25, 2020), the court, inter alia, held that plaintiff sufficiently alleged a claim for age discrimination under the Age Discrimination in Employment Act (ADEA) and its state counterpart (the New York State Human Rights Law).

After summarizing the applicable law, the court applied it to the facts:

Plaintiff’s allegations that he was 66 when he was terminated and allegedly received a harsher punishment than two younger employees, as well as his allegations about a pattern and practice of age discrimination, are insufficient to meet the pleading standard. See Marcus, 661 F. App’x at 32 (categorizing comparators as “younger” “[w]ithout any information as to whether these employees were otherwise similarly situated or the specifics of their conduct…does not give rise to even a minimal inference of age discrimination.”). Nonetheless, the fact that Defendant was aware of the June 2016 altercation and took no action for nine months, allowing Plaintiff to continue his job without any warning or reprimand, certainly gives the Court pause. Defendant argues that “even if [Defendant] became aware of the alleged ‘physical encounter with a patient’ in June 2016, which [Defendant] denies, yet delayed terminating Plaintiff’s employment until March 2017, Plaintiff fails to allege how [Defendant’s] purported delay had anything to do with his age.” (Def.’s Mem. in Rep. [ECF No. 26] at 4.) However, Plaintiff allegedly has no prior history of patient altercations and complied with proper reporting protocol. No investigation was conducted at the time of the altercation, despite Plaintiff informing Defendant about it, and no action was taken until nine months later.

Defendant also argues that Plaintiff’s claim of pretext is subverted by his admission that he engaged in the conduct for which he was terminated. However, the issue is not Plaintiff’s involvement in the patient altercation but whether there is a plausible presumption of age discrimination that arises from the aggregated circumstances surrounding the decision to terminate Plaintiff. The nine-month delay between the altercation and termination, the lack of investigation by Defendant into the altercation, and the fact Plaintiff continued to work in his normal employment capacity for the nine months following the altercation, undermine Defendant’s reasoning for the termination.

The court found persuasive plaintiff’s observation that “it is difficult to find a ‘direct smoking gun’ in discrimination cases, and often the court must rely on ‘bits and pieces’ to support an inference of discrimination,” and concluded that “[g]iven the ‘bits and pieces’ alleged here and the early stage of the proceeding, the claim survives Defendant’s motion to dismiss.”

argument that

Share This:
(212) 227-2100