Downey v. Adloox Inc.

238 F. Supp. 3d 514, 2017 WL 816141, 2017 U.S. Dist. LEXIS 28444
CourtDistrict Court, S.D. New York
DecidedFebruary 28, 2017
Docket16-CV-1689 (JMF)
StatusPublished
Cited by24 cases

This text of 238 F. Supp. 3d 514 (Downey v. Adloox Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Downey v. Adloox Inc., 238 F. Supp. 3d 514, 2017 WL 816141, 2017 U.S. Dist. LEXIS 28444 (S.D.N.Y. 2017).

Opinion

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

In September 2015, Plaintiff Kevin Dow-ney was hired by Defendant Adloox Inc.— an advertising technology company—as Vice President of Sales in its newly opened New York City office, Adloox Inc. (“Adloox U.S.”) is the United States-based, wholly owned subsidiary of Adloox (“Adloox France”), a French corporation (collectively, “Defendants”), Less than two months after hiring Downey, Adloox U.S. terminated his employment. Downey, who was fifty-one at the time of his termination, now sues Adloox U.S. and Adloox France, alleging age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.\ the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107. He also brings claims under New York law for fraudulent inducement and [518]*518unjust enrichment. Defendants now move, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the Second Amended Complaint (the “Complaint”) in its entirety. (Docket No. 27).1 For the reasons that follow, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND

The relevant facts, taken from the Complaint and assumed to be true for purposes of this motion, can be stated briefly. See, e.g., Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011). Downey, now fifty-two years old, has worked as a sales professional in the advertising technology industry since 1996. (Docket No. 26 (“Sec. Compl.”) ¶¶ 11-12, 26). In July 2015, executives from Adloox France (who, at some point, became executives of Adloox U.S. as well) traveled from Paris, France, to New York City to interview Downey for the position of Vice President of Sales North America. (Id. ¶¶ 16, 21, 27). At the time, Adloox France had no subsidiaries or representatives in the United States, but it was looking to establish a presence. (Id. ¶¶ 16, 21). As part of the hiring process, Adloox France asked Downey to prepare a presentation on how the company could enter the United States market and achieve a certain level of sales. (Id. ¶ 27). On July 29, 2015, Downey received a preliminary offer of employment. (Id. ¶28). As a condition of employment, however, Adloox executives advised Downey that he would first need to free himself from a non-compete agreement with his former employer. (Id. ¶¶ 29-30). Downey brought suit in New York State Supreme Court against his former employer, which resulted in the non-compete restrictions being declared unlawful. (Id. ¶ 31). He expended $40,000 of his own money in doing so. (Id.).

Once the non-compete issue was resolved, Downey began working for Adloox U.S. pursuant to an executed employment agreement. (Id. ¶ 32). Starting on September 7, 2015, he spent a few days training in Adloox’s London office and then returned to the Adloox U.S. office in New York City, where his work included networking with industry contacts, selling Adloox services to potential customers, and interviewing potential sales associates for the New York office. (Id. ¶¶ 32-33). Downey reported directly to supervisors from Ad-loox France, as he was the sole Adloox U.S. employee at the time and Adloox U.S. and Adloox France were both managed by the same people acting as Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer. (Id. ¶¶ 22-23). In late October 2015, Downey spent time preparing the company for a major marketing exhibition in New York. (Id. ¶ 38). On October 29, 2015, Downey turned over his list of business contacts at the request of the CEO (id. ¶ 39); the next day, Downey was fired via an email sent from the CFO in Paris. (Id. ¶ 40).

Downey alleges that, during the course of his employment, his supervisors repeatedly referred to him as the “old timer.” (Id. ¶ 34). Additionally, while Downey was interviewing potential sales staff for Adloox U.S., company executives sent emails indicating a desire to employ only “young sharks” and instructing the company’s recruiter to “target candidates aged ideally around 30 (35 big max).” (Id. ¶¶ 35-36). At one point, Downey recommended a candidate over the age of thirty-five, but [519]*519an Adloox executive responded: “Too old/senior. We’re looking for young sharks.” (Id. ¶ 37). After Downey was terminated, his position was filled by a thirty-one year old. (Id. ¶ 42). On March 4, 2016, Downey filed the instant action. (Docket No. 1).

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a plaintiff asserting an employment discrimination complaint under the ADEA must plausibly allege that adverse action was taken against her by her employer, and that her age was the ‘but-for’ cause of the adverse action.” Marcus v. Leviton Mfg. Co., Inc., 661 Fed. Appx. 29, 31-32 (2d Cir. 2016) (summary order) (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)). The plaintiff need not prove discrimination, or even allege facts establishing every element of a prima facie case of discrimination, but he “must plead facts that give ‘plausible support to a minimal inference’ of the requisite discriminatory causality.” Id. at 32 (quoting Littlejohn v. City of New York, 795 F.3d 297, 310-11 (2d Cir. 2015)). More specifically, the plaintiff “must supply sufficient factual material, and not just legal conclusions, to push the misconduct alleged in the pleading beyond the realm of the ‘conceivable’ to the ‘plausible.’ ” Id. (citing Vega, 801 F.3d at 84).2

DISCUSSION

As noted, Downey alleges age discrimination under the ADEA, NYSHRL, and NYCHRL as well as state law claims for fraudulent inducement and unjust enrichment. The Court will address the ADEA claim first, then turn to the remaining claims.

A. The ADEA Claim

Wisely, Defendants do not dispute that the allegations in the Complaint are sufficient to raise an inference of age discrimination. Given, among other things, evidence that supervisors repeatedly called Downey the “old timer,” that executives explicitly advocated for hiring “young sharks” and rejected at least one candidate as “[t]oo old/senior,” and that Adloox U.S. replaced Downey with a thirty-one year old, the allegations are plainly sufficient to give “ ‘plausible support to a minimal inference’ of the requisite discriminatory causality.” Marcus, 661 Fed.Appx. at 32 (quoting Littlejohn, 795 F.3d at 310-11). Instead, Defendants make two arguments for dismissal of Downey’s ADEA claim.

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Bluebook (online)
238 F. Supp. 3d 514, 2017 WL 816141, 2017 U.S. Dist. LEXIS 28444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downey-v-adloox-inc-nysd-2017.