Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490

Plaintiffs Fagan (62) and Curcio (56) allege age and gender discrimination under ADEA, Title VII, NY HRL § 296, and ADA against corporate and individual defendants at U.S. Carpet Installation, Inc. and USIG.
Plaintiffs claim hostile work environment, retaliation for complaints, and discriminatory termination following complaints in 2008-2009; Fagan faced lymphoma and chemo in 2006-2008.
Alleged adverse actions occurred after complaints: supervisory personnel allegedly tightened duties, increased scrutiny of sick days, and ultimately terminated or constructively terminated both plaintiffs in February 2009.
After complaints, both plaintiffs were replaced by younger, male employees; Curcio’s hours and duties increased, culminating in a constructive discharge.
The parties moved to dismiss federal claims against individual defendants; plaintiffs later dismissed federal claims as to individuals but preserved NY HRL § 296 age claim against them.
Court must decide whether age discrimination claims under NY HRL § 296 can be pled where age is one of multiple factors and whether pleading must show but-for causation at this stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NY HRL § 296 age claim may be pled when age is one of multiple factors	Fagan/Curcio allege age as a significant factor, not the sole cause.	Age must be the but-for cause for liability under NY HRL § 296.	Age may be pled as an alternative factor; but-for causation need not be pled at the complaint stage.
Whether pleading can allege alternative theories (age and gender) for termination	Plaintiffs use alternative theories; age and gender claims may coexist at pleading.	Alternative theories need explicit separation in pleadings.	Rule 8 allows pleading in the alternative; no need to separate in distinct counts at this stage.
Whether the complaint plausibly alleges an inference of age discrimination under NY HRL § 296	Multiple significant factors may still support age as the but-for factor.	If age is only a factor among others, insufficient for but-for discrimination.	Plaintiffs plausibly state an age discrimination claim under NY HRL § 296.
Whether the motion to dismiss the NY HRL age claim as to individual defendants should be granted	Age discrimination can be asserted against individuals under NY HRL.	Individual liability is not clearly established for NY HRL discrimination claims at pleading.	Denied; NY HRL age claim against individuals survives at this stage.

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (plausibility standard for pleading)
Ashcroft v. Iqbal, 129 S. Ct. 1937 (S. Ct. 2009) (standard to evaluate complaints; threadbare recitals not enough)
Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) (two-pronged framework after Twombly/Iqbal)
Swierkiewicz v. Sorema, 534 U.S. 506 (S. Ct. 2002) (pleading burden at Rule 8; not requiring prima facie case at pleading)
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229 (2d Cir. 2007) (pleading standards; alternative theories permissible)
Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (S. Ct. 2009) (but-for causation standard clarified as evidentiary, not pleading)
Roginsky v. County of Suffolk, 729 F. Supp. 2d 561 (E.D.N.Y. 2010) (but-for standard in age discrimination context)
Gorzynski v. Jetblue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (framework for ADEA and HRL claims analogous)
Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir. 1997) (age discrimination pleading standards in HRL/ADEA context)
Hertz Corp. v. City of New York, 1 F.3d 121 (2d Cir. 1993) (standard for evaluating discrimination pleading and burden shifting)