Barclay Damon
Barclay Damon


A child-care agency’s former employee filed a complaint in the Federal District Court for the Northern District of New York alleging that her termination from employment constituted age discrimination under the Age Discrimination in Employment Act and the New York State Human Rights Law, and unlawful retaliation under the Americans With Disabilities Act and the Rehabilitation Act. 

After the agency successfully obtained summary judgment dismissing the complaint in its entirety, the former employee appealed the trial court’s determination to the Second Circuit Court of Appeals.  Barclay Damon’s labor and employment team, which was retained to oppose the appeal on behalf of the agency, was successful and obtained a decision affirming the dismissal of all claims against the agency. 

In agreeing with Barclay Damon’s arguments and denying the appeal, the Second Circuit rejected the former employee’s arguments that the agency provided inconsistent explanations for her termination and deviated from its own policy in terminating her without providing progressive discipline. 

In addition, the Second Circuit rejected the appellant’s reliance on a lone stray remark concerning her retirement plans (allegedly made two years before she was terminated) and that she was replaced by a much younger employee.  As to the retaliation claims, the Second Circuit ruled that the former employee failed to meet her prima facie burden because her conduct as alleged did not qualify as protected activity. 



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Larry Oppenheimer

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