Three former Bronx-Lebanon Hospital Center employees alleging age discrimination have raised sufficient questions about the hospital's stated reasons for their terminations, and thus their lawsuit must go forward, an appeals court has ruled.

An Appellate Division, First Department panel has ruled that the former employees, including two patient care managers, have raised sufficient factual issues about whether their age was a factor in the firings.

Consequently, the panel decided, the hospital's summary judgment motion was rightfully denied in 2017 by Bronx Supreme Court Justice Alison Tuitt.

And while addressing a separate ruling rendered in 2018 by Supreme Court Justice George Silver, now the deputy chief administrative judge for the New York City Courts, the panel also affirmed Silver's ruling to not sever out, and hold a different trial for, one plaintiff's claims.

For that plaintiff, referred to only as “Sinclair” in the opinion and whose exact hospital job role was not made clear, the panel wrote that the former employee's circumstances were not identical to other two employees' circumstances but that “the common elements outweigh the differences, and trial of the claims will entail much of the same evidence and many of the same witnesses.”

At the heart of the opinion, issued on Tuesday, was the panel's look at both certain evidence and the hospital's stated reasons for terminating the three employees. The panel considered the information in light of the hospital's summary judgment dismissal motion.

Justices David Friedman, Barbara Kapnick, Ellen Gesmer, Jeffrey Oing and Peter Moulton first addressed the terminations and evidence surrounding two of the plaintiffs, Paula DeFreitas and another one referred to only as “Walker.” The justices said that both had been patient care managers at the Bronx-Lebanon Hospital Center, which today is known as the BronxCare Health System.

Later in the decision, the panel addressed the termination of and certain evidence related to Sinclair.

Both DeFreitas and Walker, the justices wrote, had met their burden under the state Human Rights Law (Executive Law §296[1][a]) of showing that a material factual issue exists regarding whether the hospital's stated reason for terminating DeFreitas and Walker “is false or unworthy of belief and that more likely than not their age was the real reason,” citing Ferrante v. American Lung Assn.

Specifically, the unanimous panel wrote that “while [the hospital] claims budgetary reasons for terminating DeFreitas and Walker … there is evidence that off-shift PCMs did not experience a reduction in force … and that new, younger individuals were hired.”

“An issue of fact exists as to whether the new employees replaced plaintiffs,” the justices said, citing, as a case example, Ashker v. International Bus. Machs.

They further pointed out that the hospital had relied, as evidence, on a chart prepared by the nursing department's vice president that showed DeFreitas and Walker's positions were eliminated, but the vice president “prepared the chart after her deposition, and the chart does not indicate the source of the information.”

Moreover, “issues of fact also exist as to the performance evaluation forms on which [the hospital] relies and as to the way the [reduction in force] was conducted,” the panel wrote.

Regarding the force reduction, the justices wrote in DeFreitas v. Bronx-Lebanon Hospital Center that “there is evidence that, after DeFreitas and Walker were terminated, significantly younger probationary employees remained employed.”

Turning to Sinclair, the panel explained that she was fired after being granted a transfer from night shift to day shift and to a different department, where she was given poor evaluations.

But then “in a departure from [the hospital's] internal procedures, upon termination, Sinclair was not considered for return to her original position,” the justices wrote, and the hospital has “failed to demonstrate as a matter of law that this departure from procedure was solely for nondiscriminatory reasons.”

In addition, Sinclair testified that one employee who evaluated her “made negative comments related to age” and the evaluating employee “did not refute having made them.”

“In view of the foregoing,” the panel explained, the three plaintiffs had also raised factual issues sufficient to defeat summary judgment under the New York City Human Rights Law's (Administrative Code of City of NY §8-107[1][a]) “more lenient 'mixed motive' standard” applicable to their claims made under the city law.

Bronx attorney Delmas Costin Jr., who is handling the case along with David Etkind of Echtman & Etkind in Manhattan for the plaintiffs, said in an email that the case was decided correctly and the decision “shows that a jury can find an employer liable where 1) an employer makes any employment decision that unlawfully considers an employee's age and 2) an employer fails to follow its own workplace rules, whenever it makes any employment decision.”

He added that the court also “properly identified facts that a jury can use to determine that defendant's actions and statements treated Plaintiffs less well than other employees,” and, in denying severance, “correctly concluded that the common elements such as identical witnesses and identical evidence, outweighs the differences.”

Celena Mayo, a partner at Wilson Elser Moskowitz Edelman & Dicker in Manhattan representing the hospital, could not be reached for comment.