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In the Land of Start-Ups, 40 can be Considered a Dinosaur

A terminated employee at the ripe old age of 43 was able to defeat a motion for a summary judgment for age discrimination.  Plaintiff Frederick Brown sued his former employer Crowdtwist under the New York City Human Rights Law (“NYCHRL”) alleging age and disability discrimination.  The court denied the Defendant’s motion for summary judgment as to the Plaintiff’s age discrimination claim. As discussed below, the comments of Brown’s former supervisor in reference to Brown’s age in relation to his younger co-workers led to Judge Baer of the SDNY to deny the Defendant’s summary judgment motion.

Brown was hired by Crowdtwist, a start-up marketing company, as the Head of Sales.  He was their employee for only three months before he was terminated. He was 43 years old when he was let go and replaced by a 37 year old outside candidate. At the time of his termination, he was the oldest employee in the company; however, the other employees at Crowdtwist ranged from 31-38.

The NYCHRL makes it unlawful “for an employer or an employee or agent thereof, because of the actual or perceived age … of any person … to discharge from employment such person or to discriminate against such person in compensation or in terms, condition or privileges of employment.” N.Y.C. Admin. Code § 8-107(1)(a). Claims under the NCYHRL are construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Albunio v. City of New York, 16 N.Y.3d 4770478.

In Judge Baer’s opinion, he noted that plaintiff made a sufficient showing of age discrimination based on evidence of discriminatory comments made by his co-workers about his age.  Plaintiff explained in his deposition that one of Crowdtwist’s founders and the Chief Operating Officer told Plaintiff that he should “get in shape to keep up with us young guys.”  When Plaintiff suffered a hernia, his injury was referred to as an “old man injury” and heard comments such as “look what happens when you try to keep with the thirty year olds.”

Defendant argued against discriminatory intent by reasoning that the same individuals who terminated Plaintiff also hired him three months earlier when he was around the same age.  This “same actor inference” is a common defense for claims under the NYCHRL.  However, because many of the facts defendant relied on were in dispute, the court did not accept this defense. Defendant also argued that only five years of age existed between plaintiff and the new employee, which precluded an inference of discrimination.  The court noted that previous case law established that a jury could view a five-year age difference as significant in the context of a certain case, where it places plaintiff in his forties as opposed to his thirties. See Edwards v. William Raveis Real Estate, Inc., 2010 WL 3829060 (D.Conn. Sept.22, 2010).

To show a legitimate, non-discriminatory explanation for the termination, Defendant argued that Plaintiff was not performing up to expectations and thus his termination had nothing to do with his age.   Specifically,  Defendant noted that Plaintiff did not close any sales during his time at Crowdtwist and that he performed poorly.    Judge Baer found that there was a disputed issue of fact with respect to Brown’s job performance.  In fact, the only evidence of Plaintiff’s performance was a set of online evaluation, which rated Plaintiff’s skills as “excellent” or “good” in the majority of categories.

As such, Plaintiff was able to show that a reasonable jury could find that Defendant’s explanation is at least partially pre-textual and that discrimination was a motivating factor in his termination.

We will keep you apprised of all developments in this manner.  If you believe you have been the victim of age discrimination please contact our office at (212) 323-6980 or at



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