ABBEY v. BAUSCH LOMB INC (2006)

Plaintiffs commenced this action alleging that they were discharged from their employment with defendant as the result of unlawful age discrimination.   Supreme Court properly granted defendant's motion seeking summary judgment dismissing the second amended complaint.   With respect to the first cause of action, alleging intentional discrimination, defendant established its entitlement to judgment as a matter of law by demonstrating the absence of proof that plaintiffs were discharged under circumstances giving rise to an inference of discrimination, by offering “legitimate, nondiscriminatory reasons for [its] challenged actions, [and by demonstrating] the absence of a material issue of fact as to whether [its] explanations were pretextual” (Forrest v. Jewish Guild for Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998;  see generally Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629-630, 665 N.Y.S.2d 25, 687 N.E.2d 1308).   Even assuming, arguendo, that plaintiffs may maintain the second cause of action, alleging age discrimination based upon a theory of disparate impact (cf. Bohlke v. General Elec. Co., 293 A.D.2d 198, 200-201, 742 N.Y.S.2d 131, lv. dismissed 98 N.Y.2d 693, 747 N.Y.S.2d 410, 775 N.E.2d 1289), we conclude that defendant met its initial burden by establishing that, contrary to plaintiffs' allegations, its restructuring and workforce reduction did not have a disproportionate impact on employees over 40, and plaintiffs failed to raise “an inference that the [termination of their employment] cannot be justified by any explanation other than age discrimination” (Mete v. New York State Off. of Mental Retardation & Dev. Disabilities, 21 A.D.3d 288, 297, 800 N.Y.S.2d 161).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: