Judge Andrew Carter Jr. (NYLJ/Rick Kopstein)
A Manhattan federal judge on Thursday threw out a paralegal’s multiple age discrimination claims against Special Counsel—finding that the suit, even with its allegations of 41 unsuccessful job applications, fell short on pleading that the large national legal staffing firm knowingly passed her over for younger candidates.
U.S. District Judge Andrew Carter called plaintiff Terri Jablonski’s age claims conclusory, speculative and unsupported by plausible facts, and also dismissed the bulk of the related claims from the complaint, which had pleaded 14 causes of action including unemployment status discrimination and unlawful blacklisting.
Carter, sitting in the U.S. District Court for the Southern District of New York, left alive only claims for defamation and retaliation, both which he directed must be re-pleaded in shorter and plainer ways.
Ticking through the causes of action in workmanlike fashion, Carter found repeatedly that Jablonski’s 86-page complaint jumped to conclusions and failed to provide facts that would plausibly support her theories of wrongdoing.
“Jablonski does not plead facts that establish that she applied for position X and position X was filled by one of those younger individuals,” Carter wrote while addressing one aspect of Jablonski’s discrimination allegations, lodged under the federal Age Discrimination in Employment Act.
“Moreover, there is no allegation, beyond Jablonski’s own speculation that recruiters could perceive the ages, that Special Counsel knew of the age difference between Jablonski and the individual who was hired for the position(s) she applied for,” Carter added.
Then, quoting Ndremizara v. Swiss Re American Holding, 93 F. Supp. 3d 301, 317 (S.D.N.Y. 2015), Carter wrote, “She merely asserts that other applicants hired or referred for placement by Special Counsel were younger and less qualified than her, which is ‘entirely conclusory, naked, and devoid of further factual enhancement,’ and thus not entitled to a presumption that it is true.”
In an emailed statement on Thursday, Jablonski’s attorney, Maria Estelle Jablonski, whose practice is based in Pearl River, New York, vowed that her client would appeal.
“This order reflects that the legal system does not take seriously complaints of age bias against Americans over 40 and those unemployed,” Maria Jablonski wrote. “Terri is a Haverford College graduate (a top-20 ranked college), with a paralegal certificate from New York University with years of paralegal experience, with excellent references. While rejecting her, Special Counsel Inc. hired mostly recent graduates, some having no experience or degree. They knew she was over 40 and [we] knew from their resume graduation dates that they hired substantially younger applicants, in their 20s. Its website also posted direct evidence: that it actively pursues employed applicants.”
(Maria Jablonski didn’t answer an inquiry regarding whether she and Terri Jablonski are related.)
Terri Jablonski, now 49, brought an action first in Manhattan Supreme Court, and in July it was removed to federal court. It claimed age discrimination based on Jablonski, a 19-year veteran paralegal, allegedly applying with Special Counsel for 41 paralegal job openings from Aug. 2, 2013, to July 21, 2015, in the New York City, New Jersey, and White Plains areas, yet never getting hired or referred for placement for any of those positions.
Jablonski claimed Special Counsel uses an “applicant tracking system” that analyzes applicants’ resumes for review by its recruiters, and that recruiters used it to screen out applicants who exceeded a certain age or were unemployed. She said that recruiters also further reviewed the applicant’s resumes to ensure that older applicants were screened out.
The lawsuit brought age discrimination claims under the ADEA, the New York State Human Rights Law, and the New York City Human Rights Law. It lodged retaliation and other claims under the city Human Rights Law and other statutes.
As the lawsuit proceeded, Carter wrote, Special Counsel admitted in its answer that computer coding of Jablonski as “not minimally qualified” was a mistake that occurred when Jablonski’s candidate profile information became mixed with another candidate who shared similar and overlapping identifiers.
Because of an earlier merger, the computer database of Ajilon Professional Staff merged with Special Counsel’s database, and this resulted in the mix-up, Carter wrote.
But even that error by Special Counsel did not equate to a legally cognizable claim that should survive dismissal, Carter ruled.
“The court is not aware of any New York case law that recognizes a duty of care owed by an employer or employing agency to a job applicant in the handling of the applicant’s application. Accordingly, Jablonski’s negligence and gross negligence claims are dismissed,” Carter wrote.
Carrie Elizabeth Anderer, a partner at Smith, Gambrell & Russell in Manhattan, represented Special Counsel. Anderer and another firm lawyer did not return a email message seeking comment.