Practice point: To support a cause of action sounding in age discrimination, a plaintiff must demonstrate (1) membership in a protected class; (2) constructive discharge; (3) qualification to hold the position; and (4) circumstances giving rise to an inference of discrimination.
Practitioners should note that, in order to win on the motion to dismiss, a defendant must demonstrate either that plaintiff cannot establish the elements of intentional discrimination, or that there is no triable issue as to whether defendant’s facially legitimate and nondiscriminatory reasons for the termination were pretextual.
Case: Balsamo v. Savin Corp., NY Slip Op 02737 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
