In Zdanowitz v. Queens-Long Island Medical Group, P.C., No. 159574/2017, 2022 WL 2387853, 2022 N.Y. Slip Op. 32050(U) (N.Y. Sup Ct, New York County July 01, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of age discrimination asserted under the New York City Human Rights Law.
From the decision:
To defeat summary judgment, Plaintiff must first establish a prima facie case. “To meet this burden, plaintiff must show 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.” Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 [1st Dept 2012]. This burden is on the plaintiff at this stage is “de minimus.” Bennett, 92 AD3d 29, 38.
Plaintiff meets three elements of his prima facie case because he was 64 years at the time of his termination, was qualified to hold his position that he had held for 4 years without any performance concerns and was terminated. Rollins v Fencers Club, Inc., 128 AD3d 401, 401 [1st Dept 2015. Plaintiff satisfies the fourth prong because ACP replaced him with Dr. Thakker, who is 32 years younger than Plaintiff. Hosking v Mem. Sloan-Kettering Cancer Ctr., 186 AD3d 58, 67 [1st Dept 2020]; Sklaver v. Casso-Solar Corp., No. 02-CV-9928 (WCC), 2004 WL 1381264, at *6 (S.D.N.Y. May 15, 2004).
Additionally, Dr. Zeitlin’s comment to Dr. Bajaj, who was 71 years old at her termination, that ACP wanted to “present a younger face,” also supports an inference of discrimination. Rollins, 128 AD3d at 401.
This comment “directly reflect[s] age-based discriminatory bias.”
Since plaintiff established a prima facie case of discrimination, the court turned to the next steps of the analysis:
Because Plaintiff has established a prima facie case for disparate treatment based on age, Defendant must proffer a legitimate business reason for terminating Plaintiff. Primmer v. CBS Studios, Inc., 667 FSupp. 2d 248, 261 [SDNY 2009]. If Defendant can do so, Plaintiff must show that the reason is pretextual “by reliance on the evidence comprising the prima facie case, without more.” Id. Under NYCHRL, Plaintiff needs to produce “pretext evidence (or otherwise), or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination.” Bennett, 92 A.D.3d at 39. Plaintiff must only produce some evidence to suggest that one of Defendant’s reasons is “false, misleading, or incomplete.” Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 201 [1st Dept 2015]. Evidence of pretext “should in almost every case indicate to the court that a motion for summary judgment must be denied.” Bennett, 92 A.D.3d at 44. “This is because once a plaintiff introduces **9 pretext evidence, a host of determinations properly made only by a jury come into play, such as whether a false, misleading, or incomplete explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons.” Cadet-Legros, 135 AD3d 200 (internal quotations omitted).
The NYCHRL does not require a plaintiff at the pretext stage to provide evidence that the pretext was a coverup for discrimination. In Bennett, the First Department explicitly rejected the view that a plaintiff must show both that the defendant’s reason was false and that the reason was a pretext for discrimination. Bennett, 92 A.D.3d at 41-44.7 All a plaintiff must do to avoid summary judgment is show a reason is false, misleading, or incomplete. Bennett, 92 A.D.3d at 43. ACP claims it terminated Plaintiff for operational reasons, specifically that “two part-time Hematology/Oncology physicians could be replaced by one full-time physician.”
Here, plaintiff met her burden. Here, while defendant claimed that it terminated plaintiff “because it decided in its business judgment that it would no longer have part-time hematology-oncology specialists,” the court cited, e.g., evidence contradicting this claim, the fact that there was no contemporaneous evidence supporting it, the fact that defendant (instead of offering a full-time position to plaintiff) offered it to a person who was half plaintiff’s age, and defendant’s alleged failure to follow its own policy (o offer full-time positions to part-time physicians when eliminating their positions).
Based on this, the court held that “[w]hile Defendant has articulated non-discriminatory reasons for Plaintiff’s termination, Plaintiff has presented sufficient evidence to require a jury to determine whether Defendant acted with discriminatory intent,” warranting denial of defendant’s motion.