Motion Date: 08/10/12
DEBRA A. JAMES, Justice
The following papers, numbered 1 to 9 were read on this motion for summary judgment.
Notice of Motion/Order to Show Cause -Affidavits -Exhibits_________
1 – 4
Answering Affidavits – Exhibits________________________________
Replying Affidavits - Exhibits__________________________________
Upon the foregoing papers,
In this action, plaintiff alleges that defendants discriminated against her based upon her age by firing her in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107  [a]) (HRL). Defendants now move for summary judgment dismissing the complaint.
Plaintiff was hired as General Manager by defendant Club in August 2007 at the suggestion of co-defendant James Melcher at which time she was 58 years old. Plaintiff, alleges that the defendant's current Executive Director who first became a board member in 2008 commented on plaintiff's work performance on numerous occasions stating that plaintiff "looked tired" which plaintiff interpreted as referring to plaintiff's age and alleged inability to perform the duties of her job for that reason. The Executive Director testified at deposition that on at least two occasions she used the aforementioned phrase in discussing the plaintiff, but disagreed that she was referencing plaintiff's age.
Plaintiff asserts that she diligently performed her duties and was rewarded with a pay raise in September 2008. Co-defendant Melcher, then Board Chairman of the Club, stated in his deposition that plaintiff's request for a raise was discussed in September 2008 and "was negotiated that it would be in the form of a bonus at the end of the year." Plaintiff also points to a letter from Melcher to the membership of the Club dated September 2, 2008, in which it is stated that "Lyn Rollins came on board as the Club's new Manager one year ago and has 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."
However, plaintiff was terminated from her employment with defendant in December 2008.
Plaintiff argues that against these positive portrayals of her performance, the comments and actions of defendant's Executive Director disparaging her performance and favoring a younger staff member constitute sufficient evidence of discrimination to survive defendants' attempt to dismiss her claims.
In Bennett v Health Management Systems, Inc. (92 A.D.3d 29, 31 [1st Dept 2011]), the Court took "the opportunity to address the evidentiary showing required at the summary judgment stage in [an age] discrimination case brought pursuant to the New York City Human Rights Law" as is the case here. The Court noted that
Six years after the passage of the New York City Local Civil Rights Restoration Act (Local Law No. 85  of City of NY) (Restoration Act), it is beyond dispute that the City HRL now "explicitly requires an independent liberal construction analysis in all circumstances." an analysis that "must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's 'uniquely broad and remedial' purposes, which go beyond those of counterpart state or federal civil rights laws" (Williams v New York City Hous. Auth., 61 A.D.3d 62, 66 [1st Dept 2009],
lv denied 13 N.Y.3d 702  [emphasis added]).
Id. at 34. The Court then began its analysis by stating that
The McDonnell Douglas (411 U.S. 792 ) burden-shifting approach initially requires only that the plaintiff make a prima facie showing of membership in a protected class and that an adverse employment action had been taken against him. The adverse action must have occurred under circumstances giving rise to an inference of discrimination. Once that minimal showing is made, the burden shifts to the defendant to articulate through competent evidence nondiscriminatory reasons that actually motivated defendant at the time of its ...