- September 28, 2017
Stewart Lee Karlin Law Group, P.C., New York, NY (Daniel E.
Dugan of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng
and Eric Lee of counsel), for respondents.
RANDALL T. ENG, P.J. SHERI S. ROMAN ROBERT J. MILLER LINDA
DECISION & ORDER
action to recover damages for discrimination in employment on
the basis of age in violation of the Age Discrimination in
Employment Act of 1967 (29 USC § 621, et seq.),
the plaintiff appeals from an order of the Supreme Court,
Kings County (Genovesi, J.), dated April 16, 2015, which
granted the defendants' motion to dismiss the amended
complaint pursuant to CPLR 3211(a).
that the order is affirmed, with costs.
plaintiff was a teacher at a junior high school in Brooklyn.
She commenced this action to recover damages for
discrimination in employment on the basis of age in violation
of the Age Discrimination in Employment Act of 1967 (29 USC
§ 621, et seq.).
amended complaint alleged that the plaintiff had been
subjected to repeated instances of discrimination by the
principal and the assistant principal. The amended complaint
alleged that these instances of discrimination created a
hostile work environment and ultimately led to the
constructive discharge of the plaintiff.
defendants moved to dismiss the amended complaint pursuant to
CPLR 3211(a). The Supreme Court granted the defendants'
motion, and the plaintiff appeals. We affirm.
a motion pursuant to CPLR 3211(a)(7) to dismiss for failure
to state a cause of action, the court must afford the
pleading a liberal construction, accept all facts as alleged
in the pleading to be true, accord the plaintiff the benefit
of every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal
theory" (Phillips v. Taco Bell Corp., 152
A.D.3d 806, 807; see Leon v. Martinez, 84 N.Y.2d 83,
Discrimination in Employment Act of 1967 (hereinafter the
ADEA) provides, in relevant part: "It shall be unlawful
for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of
employment, because of such individual's age" (29
USC § 623[a]; see Lichtman v. Martin's News
Shops Mgt., Inc., 81 A.D.3d 696, 697). "To
establish a prima facie case of age discrimination under the
ADEA, a claimant must demonstrate that: 1) [she] was within
the protected age group; 2) [she] was qualified for the
position; 3) [she] was subject to an adverse employment
action; and 4) the adverse action occurred under
'circumstances giving rise to an inference of
discrimination'" (Terry v. Ashcroft, 336
F.3d 128, 137-138 [2d Cir], quoting Roge v. NYP Holdings,
Inc., 257 F.3d 164, 168 [2d Cir]).
the amended complaint alleged that the plaintiff was subject
to two types of adverse employment actions: (1) she was
constructively discharged due to a hostile work environment,
and (2) she was given "unsatisfactory" ratings with
respect to certain annual performance evaluations. In the
order appealed from, the Supreme Court concluded that the
amended complaint failed to adequately allege that the
plaintiff was subject to an adverse employment action.
we reject the plaintiff's contention that the alleged
"unsatisfactory" annual performance evaluations
satisfied the requirement that the plaintiff was subject to
an adverse employment action. Contrary to the plaintiffs
contention, these negative evaluations may not serve as
independent adverse employment actions because those discrete
acts occurred more than 300 days before the plaintiff filed a
complaint with the Equal Employment Opportunity Commission
(see National Railroad Passenger Corporation v.
Morgan,536 U.S. 101, 110). Although we have considered
these annual performance evaluations in connection with the
plaintiffs contention that she was constructively discharged
due to a hostile work environment (see id. at 115-117), under
the circumstances here they may not independently ...