Age Discrimination Claims Survive Dismissal Against NYC Health & Hospitals Corp.; Alleged Ageist Comments Were Not “Stray Remarks”

In Mandeville v. NYC Health & Hospitals, No. 159748/2020, 2021 WL 2165639, 2021 N.Y. Slip Op. 31815(U) (N.Y. Sup Ct, New York County May 18, 2021), the court, inter alia, held that plaintiff sufficiently alleged age discrimination under the New York State and City Human Rights Laws.

Notably, this decision considers, and rejects, defendants’ attempt to rely on the often-cited “stray remarks” doctrine.

From the decision:

Here, defendants attempt to pigeonhole Carrington’s remarks as stray and unrelated to plaintiff’s termination. However, the alleged remark by Carrington, who undisputedly has final authority to terminate staff, that plaintiff was “getting too old for this” work, was more than a stray remark and clearly suggests that plaintiff was unable to perform his work because of his age (see Godino v Premier Salons, Ltd., 140 AD3d 1118, 1119 [2d Dept 2016] [plaintiff’s allegation, among others, that her “coworkers, managers, and supervisors frequently ridiculed and harassed her because of her age by stating that she was ‘too old’ and that she ‘should retire’ ” were sufficient to state a claim for age based discrimination under the NYSHRL]; Rollins v Fencers Club, Inc., 128 AD3d 401, 401 [1st Dept 2015] [employer’s references to plaintiff, including “ ‘(a)re you sure you’re up for this? You know you’re at that age where you … need more rest. You look tired,’ and asking whether plaintiff was ‘up for’ meetings that ‘might be too much’ for her and would ‘tire (her) out’ ” raised an inference of age-based discrimination]).

Moreover, the remaining alleged remarks concerning the replacement of the old guard and to move the company in a “younger direction,” when taken together with Carrington’s other remarks, and the allegation that plaintiff was replace by a physician twenty years his junior (see Colon v Trump Int’l Hotel & Tower, US Dist Ct, SD NY, 10 Civ 4794, Koeltl, J., 2011] [“Evidence that an employee was replaced by a substantially younger individual or an individual outside the protected class suffices to show circumstances giving rise to an inference of age discrimination”]; Hosking v Mem’l Sloan-Kettering Cancer Ctr., 186 AD3d 58, 67 [1st Dept 2020] [“The fact that plaintiff was replaced by a person nearly 30 years younger than her suffices to support an inference that her termination was motivated by age-based animus”]; Grella v St. Francis Hosp., 149 AD3d 1046, 1048 [2d Dept 2017] [“The fact that an employee was replaced by a substantially younger employee gives rise to an inference of discrimination sufficient to make a prima facie case of age discrimination”]), are sufficient to constitute evidence of discrimination (Danzer v Norden Sys., Inc., 151 F3d 50, 56 [2d Cir 1998] [“When, however (as in the instant appeal), other indicia of discrimination are properly presented, the remarks can no **4 longer be deemed ‘stray,’ and the jury has a right to conclude that they bear a more ominous significance”]).

Defendants rely on Melman v Montefiore Med. Ctr. (98 AD3d 107 [1st Dept 2012]) in support their argument that alleged remarks were limited in scope and not work related. However, the remarks at issue in Melman were, first “[s]imply positive references to ‘young’ professionals that, in the absence of other evidence of ageist bias, do not imply any sinister aspersion on older workers’ ” (id. at 125). And second, the remarks made by the defendant’s former CEO in a newspaper article profiling him just before his retirement concerning age-related health concerns were unrelated to an employment decision. As discussed above, the remarks at issue here were directed at plaintiff concerning his ability to perform his work, and thus, distinguishable from the remarks at issue in Melman.

Likewise, defendants’ reference to Mete v New York State Off. of Mental Retardation & Developmental Disabilities (21 AD3d 288, 294 [1st Dept 2005]) is also unavailing. Unlike the matter at issue, the plaintiff in Mete alleged only one comment concerning the need for “[n]ew and younger employees to take over the leadership of the agency” (id.).

Based on this, the court held that plaintiff adequately pled a claim for age-based discrimination.

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