A former employee’s sex and age discrimination claims against the Consulate General of Canada were rightly dismissed—in part because the employee alleged he was terminated during a larger workforce reduction while a younger man and woman were retained, and “standing alone” that doesn’t sufficiently support his claims, an appeals court has ruled.
An Appellate Division, First Department panel also wrote that former employee John McCabe failed to establish “any causal connection between … complaints he made [pertaining to the Consulate General of Canada] and his later termination or any other adverse employment action.”
Affirming two lower court decisions, the panel both granted the Consulate General’s motion to dismiss McCabe’s lawsuit and denied McCabe’s motion to renew his motion to dismiss.
Manhattan Supreme Court Justice Joan Kenney had rendered both rulings below. First she’d issued her dismissal decision in January 2017. In October 2017, she issued her denial of McCabe’s renewal motion, the panel said.
The lawsuit was brought in 2016, court records show. In the suit, McCabe alleged sex and age discrimination under the New York state and New York City human rights laws, according to the panel.
The unanimous panel’s decision did not indicate what job position or positions McCabe had held at the Consulate General of Canada. And the decision did not say how long he’d worked there. According to a LinkedIn profile of McCabe, he was a Business Development Officer/Trade Commissioner who was employed in New York City by the Consulate General of Canada from November 2001 to August 2012.
The panel of Justices Dianne Renwick, Sallie Manzanet-Daniels, Peter Tom, Marcy Kahn and Ellen Gesmer wrote that McCabe failed to allege facts sufficient to establish a prima facie case for his sex and age discrimination causes of action.
McCabe “sparingly alleges that he was terminated as part of a larger work force reduction while a younger man and woman were retained, which, standing alone, does not suffice to support either age or sex discrimination,” the justices wrote, citing in part Matter of Leka v. New York City Law Dept.
In addition, McCabe “similarly failed to elaborate on the nature of any complaints he made [pertaining to the Consulate General of Canada] to establish that those complaints were ‘protected activity,’ and to establish any causal connection between those complaints and his later termination or any other adverse employment action,” the justices wrote, citing in part Forrest v. Jewish Guild for the Blind.
The panel also wrote that “to the extent [McCabe] challenges dismissal of the complaint on purported government immunity grounds, that was not the basis of the [lower] court’s decision to dismiss the complaint.”
Later in its March 7 decision, the panel addressed both McCabe’s motion to renew his motion to dismiss the complaint and a request he made for leave to amend his complaint.
Referring to both the motion and the request, the justices wrote that McCabe “failed to state any reasonable justification for his failure to raise certain ‘new facts’ in his original dismissal motion.”
They added that “although he asserts that he believed he could not use certain documents in the course of litigation due to an earlier preliminary conference order that limited disclosure of certain consular documents, he offers no justification for his failure to timely raise that argument, or why he then belatedly submitted an amended complaint containing those facts.”
“In any case,” the justices continued, “the facts alleged in his amended complaint are largely barred by the three-year statute of limitations … and the remaining facts do not sufficiently support his claims to make a prima facie case” for his legal claims.
McCabe represented himself pro se in the appeal, and he could not be immediately reached for comment.
Alan J. Bennett of Alan J. Bennett in Brooklyn represented the Consulate General of Canada in the appeal. Bennett declined to comment.