Rollins v. Fencers Club, Inc.

128 A.D.3d 401, 8 N.Y.S.3d 202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 2015
• Docket: 12973 106303/09
• Status: Published

Opinions

Order, Supreme Court, New York County (Debra A. James, J.), entered August 15, 2013, which denied defendants’ motion for summary judgment dismissing the complaint alleging age-based discrimination in violation of the New York City Human Rights Law, affirmed, without costs.

It is essentially undisputed that plaintiff has made out the first three elements of a prima facie case of discrimination by showing that, aged 58 at the time of her hiring, she was a member of a protected class based on her age, was qualified for the position of executive director of defendant Club, and was terminated and thereby subjected to a disadvantageous employment action (see Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). Contrary to our dissenting colleague, we conclude that the fourth element of a prima facie case of discrimination, namely, that plaintiff was disadvantaged under circumstances giving rise to an inference of discrimination, is sufficiently made out to warrant a trial.

Plaintiff testified that Elizabeth Cross, the Club board member who succeeded plaintiff as executive director, “very frequently” made references to plaintiffs age, including by saying, “Are 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.” Notwithstanding the dissent’s dismissive characterization of these statements as “stray remarks” and, more incredibly, as the concern of a solicitous employer, as if they had no discriminatory import or implication, we find that when plaintiffs testimony is credited for purposes of this motion, these remarks directly reflect age-based discriminatory bias on Cross’s part (see Weiss v JPMorgan Chase & Co., 332 Fed Appx 659, 665 [2d Cir 2009]), and raise an inference of age-related bias sufficient to make out plaintiffs prima facie case of employment discrimination (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 35 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). In concluding that no inference of discriminatory motive can be drawn from this evidence, the dissent fails to abide by the precept that "all of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party’s favor” (Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010]). In particular, in observing that there is no direct evidence that Cross communicated to the board her views regarding plaintiffs age-related unfitness for the job, the dissent fails to recognize that given her position as executive director, it is fair to infer that Cross would have made such communications in the normal course of carrying out her responsibilities.

Under these circumstances, the fact that several of the persons involved in the decision to fire plaintiff were close to her in age, and thereby in the same protected class, does not vitiate the inference of discriminatory animus raised by Cross’s claimed remarks (see O’Connor v Consolidated Coin Caterers Corp., 517 US 308, 312 [1996]). In particular, Elizabeth Cross’s age of 53 does not eliminate the import or weight of her remarks; indeed, she was not only implying that plaintiff, at 59, almost 60, was infirm, but was also implicitly suggesting that the board should view Cross herself, at 53, as a member of a younger age group than that in which she placed plaintiff. Nor is the discriminatory inference negated because plaintiff was hired at the age of 58. When plaintiff was hired, Cross was not a part of the decision-making process; however, Cross was allegedly a prime mover in the board’s decision to fire plaintiff, and her discriminatory impulse may be attributable to the board.

In response to plaintiffs showing, defendants contend that they terminated her because of her poor performance, as reflected in Cross’s findings in a management study she submitted to the Club’s executive committee on November 7, 2008. In particular, defendants contend that, among other things, plaintiff was rude to members, failed to boost membership levels, was inefficient and unnecessarily raised Club operating expenses. Defendants’ submissions shift the burden back to plaintiff to prove that the proffered reasons were merely a pretext for discrimination (see Bennett, 92 AD3d at 36). However, notwithstanding the dissent’s implication, defendants’ assertions are not established facts, they are simply allegations that are disputed by plaintiff.

To show that the reasons offered by the Club for her firing were pretextual, plaintiff points out that, on September 2, 2008, defendant board member James Melcher wrote an open letter to all Club members in which he stated that, since becoming Club manager in August 2007, plaintiff had “done a terrific job of reorganizing and modernizing our procedures across the board, while continuing our tradition of friendly and welcoming interaction with members, parents, and coaches.” This praise directly contradicts Cross’s finding that plaintiff had poor relations with members. The 20% total bonus she was awarded in late September 2008 also supports plaintiffs position. Coming as little as six weeks before Cross’s study, the Melcher letter and the 20% bonus substantially undermine defendants’ proffered reason for plaintiffs termination (see Carlton v Mystic Transp., Inc., 202 F3d 129, 137 [2d Cir 2000], cert denied 530 US 1261 [2000]).

Documentary evidence also undercuts Cross’s finding that plaintiff unnecessarily boosted expenses. Notably, Club records indicate that expenses for calendar year 2009, when Cross was in charge, increased by over $500,000 (from $1.2 million to $1.7 million) from calendar year 2008, when plaintiff was in charge until mid-November.

Plaintiff has thus met her burden of showing pretext by “responding] with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete” (Bennett, 92 AD3d at 45; accord Sandiford v City of New York Dept. of Educ., 94 AD3d 593, 595 [1st Dept 2012], affd 22 NY3d 914 [2013]). Accordingly, a trial is warranted, and the motion court correctly denied defendants’ summary judgment motion.

Because defendants have not shown that they are entitled to summary judgment under the McDonnell Douglas burden-shifting framework (see McDonnell Douglas Corp. v Green, 411 US 792 [1973]), we need not analyze plaintiffs claims under the “mixed motive” framework (see Bennett, 92 AD3d at 40-41). Concur—Acosta, Saxe, Gische and Kapnick, JJ.