Summary judgment in an age discrimination action.

Practice point: To establish entitlement to summary judgment dismissing a cause of action alleging age discrimination in violation of Executive Law § 296, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether its explanations were pretextual.

In opposition, plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for the challenged action is false or unworthy of belief and, (2) it is more likely than not the employee's age was the real reason for the termination.

Student note: To support a prima facie case of age discrimination under the statute, the plaintiff must demonstrate (1) that plaintiff is a member of the class protected by the statute; (2) that plaintiff was actively or constructively discharged; (3) that plaintiff was qualified to hold the position from which plaintiff was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.

Case: Dzikowski v. J.J. Burns & Co., LLC, NY Slip Op 05797 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Collateral estoppel.