“Advanced Age” Discrimination Claim Dismissed; Alleged Sexual Harassment Was Reason For Termination

In Lively v. Wafra Inv. Advisory Group, Inc., No. 154121/2021, 2022 WL 195735 (N.Y. Sup Ct, N.Y. Cty., Jan. 21, 2022), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s age discrimination claim under the New York State Human Rights Law (N.Y. Exec. Law § 290, et seq.) and the New York City Human Rights Law (N.Y.C. Admin Code § 8-101, et seq.).

Defendants contend that plaintiff was terminated following complaints from plaintiff’s direct report of sexual harassment and discrimination by plaintiff.

Plaintiff had previously filed a federal lawsuit; there, the court dismissed plaintiff’s federal claims and declined to exercise supplemental jurisdiction over plaintiff’s state and city claims.

Here, the state court held – even assuming that the Second Circuit decision affirming the federal district court’s dismissal did not collaterally estop him from asserting such claims under state and city law, it held that plaintiff nevertheless failed to state a prima facie case of discrimination.

It explained:

A prima facie case of discrimination requires a showing by the plaintiff that: [1] he is a member of a protected class; [2] he was qualified to hold the position; [3] he was terminated from employment or suffered another adverse employment action; and [4] the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). A plaintiff claiming retaliation under either the State or City HRL “must allege that . . . there was a causal connection between the protected activity and the adverse action” (Fletcher v. Dakota, Inc., 99 AD3d 43, 51 [1st Dept 2012]).

As in the federal action, plaintiff has again failed to allege sufficient facts to support his discrimination and retaliation claims. While “an employer need not engage in a consistent pattern of discrimination in order to discriminate against someone based upon their protected status” (Melman v. Montefiore Medical Center, 98 AD3d 107 [1st Dept 2012]) mere comments without any causal relationship to the adverse action does not give rise to the inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 NY3d at 308; see also Mete v. New York State Office of Mental Retardation and Developmental Disabilities, 21 A.D.3d 288, 294 [1st Dept. 2005]). Indeed, like in the now-dismissed federal action, plaintiff again alleges that that “Al-Mubaraki[] recognized Lively’s substantial contributions and exceptional work by email in 2017, and again in 2018, during Lively’s annual formal evaluation”, which undercuts the claims of discriminatory animus al-Mubaraki allegedly manifested at unspecified meetings with unspecified individuals and in a casual comment to plaintiff’s son. Plaintiff’s failure to allege sufficient facts which would give rise to an inference of discrimination warrants dismissal of his first through fourth causes of action (see i.e. Askin v. Dep’t of Educ. of the City of N.Y., 110 AD3d 621, 621–22 [1st Dept 2013]).

Based on this, the court granted defendants’ motion to dismiss these claims.

The court also dismissed plaintiff’s claims for defamation, negligence, unjust enrichment, and quantum meruit.

Share This: