Ehrbar v. Forest Hills Hospital et al
Filing
44
MEMORANDUM AND ORDER granting 34 Defendants' Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court grants Defendants' motion for summary judgment as to Plaintiff's age discrimination and retaliation claims under the ADEA and NYSHRL. The Court dismisses Plaintiff's NYCHRL claims without prejudice. The Clerk of Court is directed to close the case. Ordered by Judge Margo K. Brodie on 9/22/2015. (Rolle, Drew)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------DOREEN EHRBAR,
Plaintiff,
MEMORANDUM & ORDER
13-CV-1761 (MKB)
v.
FOREST HILLS HOSPITAL and NORTH SHORE
LONG ISLAND JEWISH HEALTH SYSTEM,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Doreen Ehrbar brings the above-captioned action against Defendants North
Shore Long Island Jewish Health System (“NSLIJ Health System”) and Forest Hills Hospital
(the “Hospital”), 1 alleging age discrimination and retaliation in violation of the Age
Discrimination in Employment Act (“ADEA”), the New York State Human Rights Law
(“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Defendants moved
for summary judgment on all claims. (Defs. Mot. for Summ. Judg. (“Defs. Mot.”), Docket Entry
No. 34; Defs. Mem. in Support of Defs. Mot. (“Defs. Mem.”), Docket Entry No. 34-48.) For the
reasons discussed below, the Court grants Defendants’ motion for summary judgment as to
Plaintiff’s age discrimination and retaliation claims under the ADEA and NYSHRL. The Court
dismisses Plaintiff’s NYCHRL claims without prejudice.
I.
Background
In July of 2007, John Udisky hired Plaintiff as the Hospital’s Director of Patient Access
1
NSLIJ Health System is the corporate parent of the Hospital.
Services. 2 (Defs. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Udisky was 54 years old at the time, and Plaintiff was
58 years old. (Defs. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) As part of the Patient Access Services Department
(the “PAS Department”), Plaintiff managed a team of registrars and, together with the employees
in the department, had various responsibilities related to patient admission, registration and
payment collection. (Defs. 56.1 ¶¶ 3–4; Pl. 56.1 ¶¶ 3–4.) Plaintiff initially reported to Udisky,
but at various times before 2008 she was supervised by others, including Gerri Randazzo and
Bob Hettanbach, before returning to Udisky’s supervision. (Pl. 56.1 ¶ 65.) According to
Plaintiff, Jackie McCarthy also supervised her for “a few months” in 2012. (Id.)
Although the PAS Department carried out its responsibilities in a number of ways, one of
its most important functions was to manage Emergency Department (“ED”) Logbook, which was
critical to the Hospital’s ability to comply with the Emergency Treatment and Labor
(“EMTALA”) regulations. 3 (Defs. 56.1 ¶ 6; Pl. 56.1 ¶ 6.)
a.
Plaintiff’s initial performance issues
According to Defendants, Plaintiff had job performance issues during her first four years
at the Hospital. (Defs. 56.1 ¶ 8.) For example, the PAS Department was responsible for
verifying that a patient’s insurance company had pre-authorized the patient’s surgery prior to the
surgery. (Defs. 56.1 ¶ 8(a); Pl. 56.1 ¶ 8(a).) However, despite this responsibility, there were
2
Defendants submitted a statement of material facts pursuant to Local Rule 56.1 in
support of their motion for summary judgment. (See Defs. Statement Pursuant to Local Rule
56.1 (“Defs. 56.1”), Docket Entry No. 34-49.) Plaintiff submitted a counter-statement of facts.
(See Pl. Resp. to Defs. Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”),
Docket Entry No. 37.)
3
An inaccurate ED Logbook could subject the Hospital to serious penalties including
fines and loss of revenue streams. (Defs. 56.1 ¶ 15; Pl. 56.1 ¶ 15.)
2
occasions when patients arrived for surgery without pre-authorization, delaying their operation. 4
(Decl. of John Udisky (“Udisky Decl.”) ¶ 17.) This problem occurred twice in 2009, prompting
Udisky to ask Plaintiff for a “corrective action plan.” 5 (Sept. 24, 2009 and Nov. 3, 2009 emails
to Plaintiff, Defs. Exs. 5 and 6.) Plaintiff admits that these incidents occurred, but asserts they
were caused by physicians who bypassed the PAS Department to schedule surgeries. (Pl. 56.1
¶ 8(a).) According to Plaintiff, she established a system to address the problem. (Id.)
There were also issues with Plaintiff’s performance in 2010. In early 2010, Udisky
received a letter complaining about how Plaintiff was treating her employees. (Defs. 56.1 ¶ 8(b);
Pl. 56.1 ¶ 8(b).) In addition, the PAS Department had problems with patient wait times. (Defs.
56.1 ¶ 8(c); Pl. 56.1 ¶ 8(c).) The PAS Department was responsible for patient registration, but,
according to Defendants, Plaintiff routinely left her registrars without adequate supervision on
nights and weekends. 6 (Defs. 56.1 ¶ 8(d).) In or about July of 2010, after an incident where a
patient had been “triaged” but not registered for two hours, Gerri Randazzo wrote to Udisky
about the unacceptably long patient wait times. (Defs. 56.1 ¶ 8(c); Pl. 56.1 ¶ 8(c); Udisky Decl.
4
Defendants did not electronically file the Declaration of John Udisky, submitting only a
courtesy copy to the Court.
5
Although Defendants filed 44 exhibits in support of their motion, they did not annex
them to any particular declaration, and refer to them in each declaration only by their exhibit
numbers. See Rule 7.1 of the Local Rules of the United States District Courts for the Southern
and Eastern Districts of New York (requiring parties to submit “[s]upporting affidavits and
exhibits thereto . . . .”). Plaintiff did not object to these supporting exhibits, and relies on them
throughout her opposition papers. The Court references these exhibits by their apparent title and
exhibit number.
6
Plaintiff asserts that any concern regarding night and weekend supervision does not
“reflect a criticism” of her performance, but concedes there was a problem. (Pl. 56.1 ¶ 8(d).)
According to Plaintiff, she followed the process in place upon her arrival, and attempted to
address night and weekend coverage issues, but the Hospital’s administration “denied” her
request. (Id.) Plaintiff also asserts that HR “never gave [her] the authorization” to extend her
staff’s schedule into the weekend. (Id.)
3
¶ 27.) In an email that Udisky later forwarded to Plaintiff, Randazzo demanded an investigation
and suggested a change in the PAS Department’s management. (July 2010 emails among
Udisky, Randazzo and Plaintiff (“July 2010 Emails”), Defs. Ex. 8.) Thereafter, Udisky directed
Plaintiff to address the problem. (Id.) Plaintiff admits this issue arose in 2010, but contends that
the incident prompting Randazzo’s concern did not actually involve a wait-time issue. (Pl. 56.1
¶ 8(c).)
Another issue arose regarding a backlog of hospital bed assignments. Throughout 2010,
Udisky and other managers noted that the PAS Department had problems assigning hospital beds
through the “bed board,” which was the Hospital’s tool for tracking available emergency room
beds. (Defs. 56.1 ¶ 8(d); Pl. 56.1 ¶ 8(d).) In March of 2010, after a patient experienced a dayslong wait for a hospital bed, then-Executive Director of Patient Care Services, Rita Mercieca,
spoke to Plaintiff, expressing disbelief at the situation, and demanding “[n]o more excuses.”
(Mar. 2, 2010 email from Mercieca to Plaintiff and others, Defs. Ex. 9.) Backlogs persisted and
Mercieca spoke to Plaintiff again in May and June of 2010, expressing concern that bed
assignment delays would prevent the PAS Department from reaching the pre-set “metric” for bed
assignments. (See May 3, 2010 email from Mercieca to Plaintiff and others, Defs. Ex. 10; June
22, 2010 emails to Plaintiff and others, Defs. Ex. 12.) Plaintiff does not dispute that there were
problems with bed assignments or that Mercieca addressed this issue with her. (Pl. 56.1 ¶ 8(d);
Decl. of Doreen Ehrbar (“Pl. Decl.”), ¶ 4, Docket Entry No. 38.) However, Plaintiff asserts that
the Nursing Department caused the problem by failing to inform the PAS Department of
available beds. (Pl. 56.1 ¶ 8(d).)
b.
Plaintiff’s performance evaluations
Despite these issues, Udisky gave Plaintiff generally positive annual performance
4
evaluations from 2008 through 2010. 7 (Defs. 56.1 ¶ 9; Pl. 56.1 ¶ 9; Plaintiff’s 2008 Performance
Evaluation (“2008 Evaluation”), Defs. Ex. 13; Plaintiff’s 2009 Performance Evaluation (“2009
Evaluation”), Defs. Ex. 14; Plaintiff’s 2010 Performance Evaluation (“2010 Evaluation”), Defs.
Ex. 15.) Udisky rated Plaintiff’s overall performance as “Meets” expectations each year. (2008
Evaluation; 2009 Evaluation; 2010 Evaluation.)
Each year, Plaintiff’s evaluations indicated that she met or exceeded expectations in all
fifteen competency categories, 8 however, Plaintiff’s ratings did fluctuate in some categories. In
2009, Plaintiff received higher ratings in four areas — “Engagement,” “Urgency,” “Talent
Development” and “Organizational Awareness” — but lower rating in three others —
“Excellence” “Teamwork” and “Execution”. 9 (Compare 2008 Evaluation with 2009
Evaluation.) Unlike 2009, Plaintiff’s 2010 evaluation indicated lower ratings in six areas —
“Engagement,” “Technical/Analytical Skill,” “Urgency,” “Talent Development,” “Team
Leadership,” and “Organizational Awareness” — all of which were areas of improvement in
7
The evaluations contain the following fifteen categories: Excellence, Teamwork,
Integrity, Caring, Innovation, Patient First, Accountability/Ownership, Adaptability,
Engagement, Execution, Technical/Analytical Skill, Urgency, Talent Development, Team
Leadership, and Organizational Awareness. There is also an “Overall Rating.” For each, the
reviewer can rate the employee as “Does Not Meet” “Meets” “Exceeds” the reviewer’s
expectations or “Not Applicable.” The reviewer can also provide an “Individual Development
Plan.” (See 2008 Evaluation; 2009 Evaluation; 2010 Evaluation.)
8
The evaluations also include a category for “Department or Business Related Goals,”
which, beginning in 2009, rated Plaintiff in the sub-categories of “Financial,” “Quality” and
“Service.” (See e.g., 2009 Evaluation.) Plaintiff received “Does Not Meet” ratings in some of
these three sub-categories from 2009 through 2011, however, Udisky noted that he rated these
three categories based on the Hospital’s performance overall, rather than on Plaintiff’s individual
performance. (See 2009 Evaluation; 2010 Evaluation; 2011 Evaluation.)
9
Plaintiff’s evaluation changed from “Exceeds” to “Meets” expectations in these
categories. (2009 Evaluation.)
5
2009. 10 (Compare 2009 Evaluation with 2010 Evaluation.)
Although Udisky gave Plaintiff overall positive ratings, he also gave her “Development
Goals” for each year. In 2009, Udisky recommended that Plaintiff “[p]rovide greater supervision
in the ED registration area” and “increase performance for the ED Discharge Process.” (2009
Evaluation.) In 2010, Udisky again noted the need for Plaintiff to arrange for greater
management supervision of employees in the ED registration area, stating, “[Plaintiff] [n]eeds to
incorporate Management supervision into evening and weekend coverage,” and to “verify that
clerical staff is completing all levels of responsibilities,” including “timely and accurate
completion of the ED Log.” (2010 Evaluation.) In addition, Udisky encouraged Plaintiff to
“[c]ontinue [] improv[ing] upon accurate collection of patient demographic data . . . .” (Id.)
c.
Plaintiff’s 2011performance and ED Logbook issues
Additional issues arose with Plaintiff’s performance in 2011. In March, an employee
accused Plaintiff of racial discrimination. (Defs. 56.1 ¶ 8(e); Pl. 56.1 ¶ 8(e).) Two months later,
after an investigation, the Human Resources (“HR”) Department found that Plaintiff had not
discriminated against the employee, but required Plaintiff to complete courses to improve her
communication and management skills. (Defs. 56.1 ¶ 8(e); Pl. 56.1 ¶ 8(e); Udisky Decl. ¶ 66.)
In August, HR informed Udisky that Plaintiff interfered with their investigation of one of
Plaintiff’s employees. (Defs. 56.1 ¶ 8(f); Udisky Decl. ¶ 51.) According to Udisky, he learned
that Plaintiff had spoken with the target employee and asked about the underlying misconduct,
which alerted the employee to the investigation. (Udisky Decl. ¶ 51.) Udisky raised the issue
10
Defendants assert that these evaluations reflect Udisky’s “leniency” in evaluating his
employees. (Defs. 56.1 ¶ 9; Dep. of John Udisky (“Udisky Dep.”) 147:15–148:3, Defs. Ex. 41.)
Plaintiff disputes that characterization, asserting that her 2008 through 2010 evaluations
accurately reflect the quality of her work. (Pl. 56.1 ¶ 9(b).)
6
directly with Plaintiff. (Id ¶ 56.) Plaintiff admits that during the investigation she spoke with the
employee about the allegations, but denies that this constituted interference because she acted at
the direction, and with the approval of, the Labor Relations and HR department. (Pl. 56.1 ¶ 8(f);
Dep. of Doreen Ehrbar (“Pl. Dep.”) 126:21–130:5, Defs. Ex. 40.)
A serious issue arose in December of 2011, when the New York State Department of
Health (“DOH”) inspected the Hospital and reviewed the ED Logbook for compliance with
EMTALA regulations. (Defs. 56.1 ¶ 17; Pl. 56.1 ¶ 17.) The ED Logbook contained information
about the Hospital’s emergency room patients, including their names, demographic information,
treating physicians, and “final dispositions.” (Defs. 56.1 ¶¶ 7, 10–12; Pl. 56.1 ¶¶ 7, 10–12.)
Regulators like the DOH reviewed the information maintained in the ED Logbook to determine
whether the Hospital was complying with the EMTALA statute, or was “patient dumping” by
turning away prospective emergency room patients who could not pay. (Defs. 56.1 ¶¶ 7, 10–12;
Pl. 56.1 ¶¶ 7, 10–12.) Logbook inaccuracies could subject the Hospital to fines of at least
$25,000 and the potential loss of Medicaid and Medicare payments, which accounted for 70% of
the Hospital’s revenue. (Defs. 56.1 ¶ 15; Pl. 56.1 ¶ 15.)
The PAS Department possessed the ED Logbook, (Defs. 56.1 ¶ 39; Pl. 56.1 ¶ 39; Pl. Dep.
70:17–22), but the parties dispute whether Plaintiff, as head of the PAS Department, had
exclusive or shared responsibility for maintaining the ED Logbook. According to Plaintiff, the
ED Logbook was a “shared responsibility” between the PAS Department and the ED Nursing
Department, which was led by Miriam Chapman. (Pl. 56.1 ¶ 10; Pl. Decl. ¶ 9.) Plaintiff asserts
that Chapman’s department provided the ED Logbook’s “disposition information,” which was
then entered into the Logbook by PAS Department staff and volunteers. (Id.) It is undisputed
that Plaintiff’s registrars were responsible for entering information into the Logbook, (Defs. 56.1
7
¶ 14; Pl. 56.1 ¶ 14), but Plaintiff asserts that the accuracy of the information depended on the
accuracy of the data provided by Chapman’s department, (Pl. Decl. ¶ 9). According to
Defendants, the PAS Department was “exclusively responsible for maintaining the ED
Logbook,” and had access to all the necessary information for the Logbook. (Defs. 56.1 ¶ 13.)
During the December 2011 inspection, DOH uncovered at least one error in the ED
Logbook. (Defs. 56.1 ¶ 18; Pl. 56.1 ¶ 18.) Plaintiff asserts that the error was that a child visited
the emergency room twice in one day, but only appeared once in the Logbook. (Pl. 56.1 ¶¶ 18–
19; Pl. Dep. 63:6–13.) According to Defendants, the DOH inspection revealed that the PAS
Department was failing to log “each and every patient” and record each patient’s disposition
accurately. (Defs. 56.1 ¶¶ 18–19.) The Hospital began the process of a major corrective action
to address DOH’s findings and ensure the Hospital’s compliance with the ED Logbook
requirements. (Defs. 56.1 ¶ 20; Pl. 56.1 ¶ 20.)
According to Plaintiff, after the DOH visit, the Logbook became a focus for the staff, (Pl.
Dep. 65:2–4), and the PAS Department teamed with other departments to develop a corrective
plan, (Defs. 56.1 ¶ 21; Pl. 56.1 ¶ 21). Her staff followed the plan, creating reports matching the
ED Logbook information that the PAS Department compared and reconciling them with the
Logbook each day. (Pl. 56.1 ¶ 20; Pl. Dep. 63:14–64:8.)
d.
Change in executive management
A change in the Hospital’s management coincided with the negative DOH inspection. In
November 2011, Rita Mercieca replaced Gerri Randazzo as the Hospital’s Executive Director,
and Brian O’Neill became the Hospital’s Deputy Executive Director. (Defs. 56.1 ¶¶ 23–24; Pl.
56.1 ¶¶ 23–24.) This new management was committed to improving the Hospital’s performance.
(Defs. 56.1 ¶ 27; Pl. 56.1 ¶ 27.) They planned to focus on various areas, including the ED
8
Logbook, which was of “crucial importance” to them. (Defs. 56.1 ¶ 25; Pl. 56.1 ¶ 25.) The new
management also encouraged management staff, like Udisky and Plaintiff, to “achieve new
levels of excellence.” (Defs. 56.1 ¶ 25; Pl. 56.1 ¶ 25.)
After assuming his new role, O’Neill met with Udisky and discussed the upcoming 2011
evaluation process. (Defs. 56.1 ¶ 26; Pl. 56.1 ¶ 26.) O’Neill told Udisky to evaluate the
employees reporting to Udisky “in a more serious fashion,” and include additional “constructive
performance analysis.” (Defs. 56.1 ¶¶ 27–28; Pl. 56.1 ¶¶ 27–28; Udisky Dep. 148:11–15.)
According to Udisky, O’Neill was “pretty tough” in evaluations and noted their importance.
(Udisky Dep. 149:2–3.)
At some point in 2011, Udisky completed evaluations for his subordinates, including
Plaintiff. (2011 Evaluation, Defs. Ex. 23.) The record is unclear as to O’Neill’s role in these
evaluations. Udisky testified that he “sat with” O’Neill, and they prepared the 2011 evaluations
together. (Udisky Dep. 132:16–133:25.) However, O’Neill testified that he had no role in
preparing Plaintiff’s 2011 evaluation, stating that Plaintiff’s “direct supervisor was responsible
for writing it.” (Dep. of Brian O’Neill (“O’Neill Dep.”) 26:3–6, Ex. 42.)
Plaintiff’s 2011 evaluation was more negative than her prior evaluations. 11 Plaintiff’s
ratings in the 2011 evaluation saw no increases, and decreased in nine competency categories.
(2011 Evaluation.) For the first time Plaintiff received a “Does Not Meet” rating in eight
11
Plaintiff asserts that Udisky evaluated more than three people in 2011, and points to
Udisky’s alleged evaluations of Marilyn Renaudin-Guerrier and Kevin Wallace. (Pl. 56.1 ¶ 28.)
Plaintiff further asserts that these employees were in their 30’s and 40’s respectively, and, based
on Plaintiff’s conversations with them, they received generally positive evaluations consistent
with the prior year. (Id.) Plaintiff’s testimony about her conversations with other employees
about the substance of their evaluations is hearsay, and Plaintiff does not present any basis to
admit these statements. Regardless, these facts are immaterial to the Court’s resolution of this
motion.
9
“Competency” categories — “Teamwork,” “Integrity,” “Caring,” “Innovation,”
“Accountability/Ownership,” “Execution,” “Talent Development,” and “Team Leadership” —
two of which were downgraded from “Exceeds” in 2010 — “Integrity,” and “Caring.” (2011
Evaluation.) In February of 2012, Udisky met with Plaintiff to discuss the evaluation. (Defs.
56.1 ¶¶ 26, 28; Pl. 56.1 ¶¶ 26, 28.) Plaintiff submitted a rebuttal, challenging parts of the
evaluation. (Pl. Dep. 57:8–14.)
Plaintiff asserts that the evaluation does not reflect Udisky’s real view of her performance
because, in December of 2011, Plaintiff and Udisky prepared a “Patient Access Services
Transition Plan” containing a review of the PAS Department. (Pl. 56.1 ¶ 69; Patient Access
Services Transition Plan (“PAS Transition Plan”), annexed to Decl. of Steven Morelli (“Morelli
Decl.”) as Ex. A.) The document is not dated, but details strengths and weaknesses of the PAS
Department, highlights 2012 goals, and notes “Personal Accomplishments.” 12 (PAS Transition
Plan 1–3.)
e.
Plaintiff’s 2012 performance and March 2012 incident
According to Plaintiff, after the 2011 evaluation, “there was fault with everything that
[she] did,” and the staff would “take a word and they would blow it up to make it, [sic] the whole
process was wrong.” (Pl. Dep. 188:2–7.) Throughout 2012, issues with Plaintiff’s performance
persisted. In January of 2012, the Labor Relations department complained about how Plaintiff
scheduled her staff, in particular that she repeatedly scheduled one part-time employee for hours
12
The ED Logbook is referenced in the Transition Plan’s “Personal Accomplishments,”
which states, “[w]orked with the Patient Relations Department to utilize volunteers in the ED
Log Book.” (PAS Transition Plan 1.) The Transition Plan does not specify the employee to
whom this accomplishment refers. (Id.)
10
exceeding the employee’s allotment. 13 (Defs. 56.1 ¶ 29(a); Pl. 56.1 ¶ 29(a); Udisky Decl.
¶¶ 103–06.) Plaintiff concedes there was at least one complaint, but asserts that she made all
scheduling decisions in accordance with the PAS Department policy given the Hospital’s
coverage needs, patient satisfaction, and financial restrictions. (Pl. 56.1 ¶ 29(a).)
In March of 2012, the PAS Department committed another error. (Defs. 56.1 ¶ 29(c);
Pl. 56.1 ¶ 29(c).) When an emergency room patient died, the Hospital attempted to contact the
decedent’s family. (Mar. 5, 2012 email from Udisky to Ehrbar et al., Defs. Ex. 26.) Although
the PAS Department was in charge of collecting demographic information, the decedent’s
demographic information on file was incorrect, and the Hospital was unable to contact the
patient’s family. (Id.) As a result, the family did not learn of the patient’s death until they came
to pick up the patient. (Id.)
f.
Discrimination complaint
In or about April of 2012, Plaintiff hired a lawyer and sent a letter to NSLIJ Health
System’s President and CEO Michael Dowling, at his Great Neck, New York office. 14
(Defs. 56.1 ¶¶ 48–49; Pl. 56.1 ¶¶ 48–49.) The letter states that Plaintiff was experiencing age
discrimination. (Letter to M. Dowling dated April 25, 2015 (“Pl. April 25 Ltr.”) 3, Defs. Ex. 39.)
The letter recounts Plaintiff’s positive performance evaluations for the years 2008 through 2010,
13
Defendants assert that there was more than one staffing incident. (Defs. 56.1 ¶ 29(a).)
A letter, dated January 20, 2012, from a Labor Relations Manager to Plaintiff’s personnel file
recounts a staffing issue involving Plaintiff and another employee who Plaintiff repeatedly
staffed for double the number of permissible weekly hours for each employee. (Jan. 20, 2012
letter from S. Kapochunas to D. Ehrbar Personnel File, Defs. Ex. 24.) The letter also reports that
an employee had difficulty with Plaintiff in scheduling a vacation. (Id.)
14
Plaintiff did not send the letter to anyone at the Hospital. (Defs. 56.1 ¶¶ 48, 54; Pl.
56.1 ¶¶ 48, 54.)
11
and states that the negative 2011 evaluation was not based on her work product and came as a
“shock” to Plaintiff. (Id. at 2.) The letter also details numerous incidents in support of Plaintiff’s
claim of age discrimination, including that HR forced Plaintiff to take communications courses
after a false discrimination allegation, that she was “wrongly blamed” for interfering with an
investigation and mismanaging staff vacation times, and that management seemed to be
searching for reasons to “substantiate” the 2011 performance evaluation. (Id. at 2–3.)
After Dowling’s staff received the letter, someone forwarded the letter to the NSLIJ
Health System’s Office of Legal Affairs, also in Great Neck, New Jersey (Defs. 56.1 ¶¶ 51–52;
Pl. 56.1 ¶¶ 51–52.) However, due to an unspecified issue in their Office of Legal Affairs, the
letter went to a paralegal and remained “on [the] paralegal’s desk” until after Plaintiff filed a
post-termination complaint with the United States Equal Employment Opportunity Commission
(“EEOC”) in September of 2012. 15 (Defs. 56.1 ¶ 53; Pl. 56.1 ¶ 53.) It is undisputed that no one
at the Hospital knew that Plaintiff had sent a letter complaining of age discrimination until after
the EEOC sent Defendants a notice in September of 2012. (Defs. 56.1 ¶ 54; Pl. 56.1 ¶ 54.)
15
Defendants submitted a declaration from Elizabeth Dore, Senior Associate General
Counsel in NSLIJ Health System’s Office of Legal Affair, explaining the Legal Affairs’ process
for dealing with letters sent to Dowling, but Dore only “vaguely recall[ed]” Plaintiff’s letter.
(Declaration of Elizabeth Dore (“Dore Decl.”) ¶¶ 4–7, Docket Entry No. 34-50.) Dore recalls
giving the letter to a paralegal, and not seeing it again until September 2012. (Id. ¶ 7.) Upon
receiving the EEOC “Notice of Charge of Discrimination,” in September of 2012, and reading
the retaliation allegation, Dore “immediately went to [the] paralegal’s office to see what had
become of [Plaintiff’s letter].” (Id. ¶ 9.) Dore submits that the letter was found under papers in
the paralegal’s office and no “work up” had been completed. (Id.) According to Dore, NSLIJ
contacted no one at the Hospital to alert them about the letter. (Id.)
12
g.
ED Logbook errors and DOH inspections
According to Defendants, chief among Plaintiff’s additional problems in 2012 16 were the
continued issues with the ED Logbook. (Defs. 56.1. ¶¶ 40–43; Udisky Decl. ¶ 114.) In April of
2012, DOH returned to the Hospital to review the ED Logbook. (Defs. 56.1 ¶ 33; Pl. 56.1 ¶ 33.)
The review required medical records from the ED, but because the records were unavailable, the
DOH postponed its review. (Defs. 56.1 ¶ 34; Pl. 56.1 ¶ 34.) Given DOH’s impending return, the
Hospital’s Associate Executive Director of Quality Management, Linda Dascher, who had
partnered with Plaintiff on the ED Logbook corrective action plan, informed Plaintiff that she
must ensure the ED Logbook “stay[ed] up to date.” (Defs. 56.1 ¶ 35; Pl. 56.1 ¶ 35.) At that
time, and at her deposition, Plaintiff acknowledged that the PAS Department had responsibility
for the Logbook. (Defs. 56.1 ¶¶ 36–37; Pl. 56.1 ¶¶ 36–37.) Plaintiff now asserts that the
responsibility was “shared” with Miriam Chapman’s department. (Pl. 56. 1 ¶ 36.)
On July 19, 2012, DOH returned to the Hospital to inspect the ED Logbook. (Defs. 56.1
¶ 40; Pl. 56.1 ¶ 40.) At that point, Plaintiff had been “working hard” for seven months to ensure
the ED Logbook’s compliance, and had told upper management that the PAS Department was
auditing the ED Logbook daily to ensure it was correct. (Defs. 56.1 ¶ 41; Pl. 56.1 ¶ 41.)
During its inspection, DOH found that seven of the ten charts from the ED Logbook had
errors. (Defs. 56.1 ¶ 42; Pl. 56.1 ¶ 42.) As a result, Deputy Executive Director O’Neill met with
Plaintiff to discuss the errors and Plaintiff’s process for ensuring the ED Logbook was complete
and accurate. (Defs. 56.1 ¶ 43; Pl. 56.1 ¶ 43.) According to Defendants, Plaintiff stated that she
16
In addition to the problems detailed above, the parties agree that, in 2012, there were
complaints about the PAS Department not answering its telephones and about errors in reports
that Plaintiff’s staff circulated. (Defs. 56.1 ¶¶ 29(b), (e); Pl. 56.1 ¶¶ 29(b), (e); Emails between J.
Udisky and D. Ehrbar, Defs. Ex. 25.)
13
knew the PAS Department was responsible for the ED Logbook, but asserted that her
“volunteers” had not performed work related to the ED Logbook as expected. (Defs. 56.1 ¶ 44.)
Plaintiff does not respond to the assertion that, when meeting with Udisky, she stated the PAS
Department had responsibility for the ED Logbook; instead, she asserts that the responsibility
was shared with Miriam Chapman’s Nursing Department. (Pl. 56.1 ¶ 44.) As to the errors in the
ED Logbook, Plaintiff asserts that “most of the errors” were the product of receiving incorrect
information from ED clerical staff within Chapman’s group. (Id.) Citing a memorandum from
O’Neill to “File,” dated July 19, 2012, Defendants assert that Plaintiff acknowledged that her
managers had not been monitoring the staff for compliance and there was no procedure in place
to audit their compliance. (Defs. 56.1 ¶ 45; Defs. O’Neill Memorandum to File, Ex. 34.)
Plaintiff denies making this statement. (Pl. 56.1 ¶ 45.)
h.
Plaintiff’s termination
According to Defendants, by mid-August of 2012, Udisky had decided to terminate
Plaintiff’s employment because of her ongoing performance issues and mismanagement of the
ED Logbook. (Defs. 56.1 ¶ 46.) At some point, Udisky consulted with O’Neill about firing
Plaintiff. (Defs. 56.1 ¶¶ 47, 54; Pl. 56.1 ¶¶ 47, 54.) On August 13, 2012, Plaintiff met with
Udisky, Fisher, and O’Neill, and they gave her two options: resign or be terminated. Plaintiff
chose to be terminated. (Defs. 56.1 ¶ 47; Pl. 56.1 ¶ 47.) According to Plaintiff, they told her she
was terminated because of the ED Logbook. (Pl. 56.1 ¶ 72; Pl. Dep. 211: 23–212:7.) A
termination letter dated August 13, 2012, and addressed to Plaintiff states that she was
terminated “for unsatisfactory performance.” (Letter dated Aug. 13, 2012 (“Termination
Letter”), Defs. Ex. 36.) Plaintiff was sixty-three years old at the time of her termination. (Pl.
56.1 ¶ 2.) On August 17, 2012, Plaintiff filed an age discrimination complaint with the EEOC.
14
(Pl. 56.1 ¶ 75.)
i.
Plaintiff’s replacement
In November 2012, the Hospital hired Martin Muratore to replace Plaintiff as Director of
the PAS Department. (Defs. 56.1 ¶ 55; Pl. 56.1 ¶ 55.) Muratore was sixty-one years old and was
recommended by a California facility where he worked in a similar position. (Defs. 56.1 ¶ 55;
Pl. 56.1 ¶ 55.) A year later, in November of 2013, Muratore resigned or was terminated. 17
On April 2, 2013, after receiving a “right to sue letter” from the EEOC, Plaintiff timely
filed this action. (Pl. 56.1 ¶ 75.)
II. Discussion
a.
Standard of review
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Tolbert v. Smith, 790
F.3d 427, 434 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.
2013); Kwong v. Bloomberg, 723 F.3d 160, 164–65 (2d Cir. 2013). The role of the court is not
“to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162
(2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine
issue of fact exists when there is sufficient “evidence on which the jury could reasonably find for
the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a scintilla of evidence” is not
17
Plaintiff asserts that Defendants terminated Muratore. (Pl. 56.1 ¶ 55.) Udisky testified
that Muratore was terminated. (Udisky Dep. 82:11–15.) Defendants submitted an email from
Muratore to Angela Fisher dated November 12, 2013, wherein Muratore provides his
resignation. (Email from Muratore to Fisher dated Nov. 12, 2014, Defs. Ex. 38.)
15
sufficient to defeat summary judgment. Id. The court’s function is to decide “whether, after
resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational
juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.
2000). The Second Circuit has cautioned that “[w]here an employer acted with discriminatory
intent, direct evidence of that intent will only rarely be available, so affidavits and depositions
must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination.” Taddeo v. L.M. Berry & Co., 526 F. App’x 121, 122 (2d Cir. 2013) (quoting
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)).
b.
Age discrimination — ADEA and NYSHRL
Plaintiff claims that Defendants discriminated against her on the basis of age in violation
of the ADEA and the NYSHRL. (Compl. ¶ 43, Docket Entry No. 1.) Courts assess such claims
under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Gorzynski, 596 F.3d at 105–106; Spiegel v. Schulmann, 604 F.3d 72, 83 (2d
Cir. 2010) (applying framework to NYSHRL). Under that framework, a plaintiff must first
establish a prima facie case of discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993); Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). A plaintiff’s burden at this
stage is “minimal.” Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (quoting Hicks,
509 U.S. at 506). If the plaintiff satisfies this initial burden, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506–07; Ruiz,
609 F.3d at 492. The defendant’s burden “is not a particularly steep hurdle.” Hyek v. Field
Support Servs., 702 F. Supp. 2d 84, 93 (E.D.N.Y. 2010), aff’d, 461 F. App’x 59 (2d Cir. 2012).
This burden “is one of production, not persuasion; it ‘can involve no credibility assessment.’”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting Hicks, 509 U.S.
16
at 509).
However, even if the defendant offers a legitimate, nondiscriminatory explanation for its
actions, summary judgment is not warranted if the plaintiff can show that an explanation was
pretext. The plaintiff must show that “the evidence, viewed in the light most favorable to the
plaintiff, would permit a jury to find . . . . that age was the ‘but-for’ cause of the challenged
adverse employment action.” 18 Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted) (quoting Gorzynski, 596 F.3d at 106). That age
was a “but for cause” does not mean “that age was the employers [sic] only consideration, but
rather that the adverse employment action would not have occurred without it.” Id. at 169
18
Whether the “but for” standard applies to NYSHRL discrimination claims remains
unresolved in New York state courts. See DeKenipp v. State, 949 N.Y.S.2d 279, 282 (App. Div.
2012) (“This Court has not yet determined whether this recent and more stringent federal
standard applies to the analysis of age discrimination under the Human Rights Law and we
decline to reach that issue here . . . .” (internal citations omitted)). But see Anderson v. Young &
Rubicam, 890 N.Y.S.2d 45, 46 (App. Div. 2009) (noting that “case law endorses the ‘but for’
language,” citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and finding that “[t]he
requested mixed motive charge was unwarranted”). The Second Circuit has “assumed, without
deciding, that the ADEA’s ‘but for’ standard of causation also applies to age discrimination
claims brought under the NYSHRL,” noting that “New York courts have yet to rule definitively
on this issue.” Mikinberg v. Bemis Co., 555 F. App’x 34, 35 (2d Cir. 2014) (citing DeKenipp, 49
N.Y.S.2d at 281–82); see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 n.6 (2d Cir.
2010) (“The law governing ADEA claims has been held to be identical to that governing claims
made under the NY[S]HRL. Accordingly, we assume, without deciding, that the Supreme
Court’s Gross decision affects the scope of the NY[S]HRL law as well as the ADEA.” (internal
citations omitted)). The Court follows the Second Circuit and courts in this Circuit, and applies
the “but for” standard to Plaintiff’s NYSHRL age discrimination claims. See e.g., Allen v.
Chanel, Inc., No. 12-CV-6758, 2015 WL 3938096, at *4 (S.D.N.Y. June 26, 2015) (“With
regard to ADEA and NYSHRL claims, ‘the plaintiff retains the burden of persuasion to establish
that age was the ‘but-for’ cause of the employer’s adverse action.” (citing Gross, 557 U.S. at 177
and Gorzynski, 596 F.3d at 106)); Siani v. State Univ. of N.Y. at Farmingdale, 7 F. Supp. 3d 304,
321 (E.D.N.Y. 2014) (“[T]he Second Circuit assumed without deciding in Gorzynski that
Gross’s ‘but-for’ causation standard applied to the NYHRL also. This Court adopts the same
assumption.” (internal citations omitted)); Glenwright v. Xerox Corp., 832 F. Supp. 2d 268, 279
(W.D.N.Y. 2011) (applying Gross’s “but for” standard to NYSHRL age discrimination claim);
Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 574 (S.D.N.Y. 2010) (same).
17
(internal quotation marks and alteration omitted) (quoting Fagan v. U.S. Carpet Installation,
Inc., 770 F. Supp. 2d 490, 496 (E.D.N.Y. 2011)).
Defendants move for summary judgment on Plaintiff’s ADEA claims, arguing that
Plaintiff has not shown an inference of discrimination to establish a prima facie case of
discrimination, and that even assuming Plaintiff could do so, no reasonable jury could find that
Defendants’ legitimate non-discriminatory reasons for firing Plaintiff were pretext.
i.
Inference of discrimination
To establish a prima facie case of age discrimination under the ADEA and NYSHRL, a
plaintiff must show that, (1) “she was within the protected age group,” (2) “she was qualified for
the position,” (3) “she experienced adverse employment action,” and (4) “such action occurred
under circumstances giving rise to an inference of discrimination.” Gorzynski, 596 F.3d at 107.
Here, there is no dispute that Plaintiff has established the first three parts of her prima facie case.
(Defs. Mem. 14; Pl. Mem. in Opp’n to Defs. Mot. (“Pl. Opp’n”) 11, Docket Entry No. 36.)
Plaintiff was fifty-eight years old when she was hired and therefore a member of the protected
class, she was qualified for the position, and she suffered an adverse employment action when
Defendants terminated her on August 13, 2012. The only issue is whether Plaintiff can establish
that her termination occurred under circumstances giving rise to an inference of discrimination.
Plaintiff asserts that she has raised an inference of discrimination because Defendants treated her
differently than similarly situated younger employees who engaged in similar conduct. (Pl.
Opp’n 14–15.) Defendants assert that Plaintiff cannot raise an inference of discrimination
because Plaintiff (1) presents no evidence that similarly situated younger workers were treated
more favorably than Plaintiff, (2) was within the protected class when hired and terminated by
the same actor, who was also within the protected age group; and (3) was replaced by a member
18
of the protected age group. (Defs. Mem. 15–20.)
A plaintiff can raise an inference of age discrimination by showing that she (1) was
similarly situated to other younger employees, and (2) was treated less favorably than those
employees. See Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (“[T]he plaintiff [must]
show that the employer treated him or her ‘less favorably than a similarly situated employee’
outside of the protected group.” (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000)); Ruiz, 609 F.3d at 493 (“A showing of disparate treatment . . . is a recognized method of
raising an inference of discrimination for the purposes of making out a prima facie case.”);
Berube v. Great Atl. & Pac. Tea Co., 348 F. App’x 684, 686 (2d Cir. 2009) (“[P]laintiff has
proffered sufficient evidence to make out a prima facie claim of discriminatory intent by
demonstrating that younger, similarly-situated employees received progressive discipline for
transgressions of comparable seriousness while he did not.”).
This “comparator” does not need to be “identical” to the plaintiff; only “similarly situated
in all material respects.” Raspardo, 770 F.3d at 126 (citing Graham, 230 F.3d at 40); see
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Those “material respects”
will “var[y] somewhat from case to case,” and the relevant factors are whether the plaintiff and
potential comparator were (1) “subject to the same performance evaluation and discipline
standards” and (2) “engaged in comparable conduct.” Ruiz, 609 F.3d at 493–94 (quoting
Graham, 230 F.3d at 40); Graham, 230 F.3d at 40 (requiring “a reasonably close resemblance of
the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both
cases are identical”).
The employees’ positions, job responsibilities, and reporting structures are relevant. See
Shaw v. McHugh, No. 12-CV-6834, 2015 WL 1400069, at *9 (S.D.N.Y. Mar. 26, 2015)
19
(“Distinctions in assignment, reporting structure, responsibilities and workplace standards
undercut Plaintiff’s argument that his comparators are similarly situated.”); Boakye-Yiadom v.
Laria, No. 09-CV-622, 2012 WL 5866186, at *4 (E.D.N.Y. Nov. 19, 2012) (proffered
comparators lacked similar responsibilities where although there was “some evidence” that other
employees assisted with the budget, the plaintiff did not point to evidence suggesting they shared
“the ultimate responsibility” for the budget); Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202,
226 (E.D.N.Y. 2010) (proffered comparators had “marked differences” in job responsibilities).
However, the Second Circuit has found that an employee with a different supervisor can still
serve as a comparator where the employee and comparator were “subject to the same workplace
standards and disciplinary procedures.” Berube, 348 F. App’x at 686–87 (“[T]he fact that
Berube had a different supervisor from the employees he cites as comparators does not appear
sufficient in itself to preclude Berube from showing that he was subject to the same workplace
standards and disciplinary procedures.” (citing Graham, 230 F.3d at 40 and Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 97 (2d Cir. 1999))); see Dall v. St. Catherine of Siena Med.
Ctr., 966 F. Supp. 2d 167, 184 (E.D.N.Y. 2013) (“Similarly situated employees do not
necessarily need to share the same position, nor do they necessarily need to report to the same
supervisor.” (internal quotation marks and alteration omitted))).
Where the argument of disparate treatment is based on disparate enforcement of company
policy, a plaintiff must show that “similarly situated employees who went undisciplined engaged
in comparable conduct.” Graham, 230 F.3d at 40. The conduct in question must be of
“comparable seriousness,” but it does not have to be identical. Id. (citing McDonnell Douglas,
411 U.S. at 804). In addition, “[t]he determination that two acts are of comparable seriousness
requires . . . an examination of the context and surrounding circumstances in which those acts are
20
evaluated.” Id.; see Conway v. Microsoft Corp., 414 F. Supp. 2d 450, 464 (S.D.N.Y. 2006)
(“When a plaintiff’s misconduct is objectively more serious than that of a proposed comparator,
differential treatment by the employer does not create an issue of fact that will defeat a motion
for summary judgment.”).
In sum, there should be an “objectively identifiable basis for comparability.” Graham,
230 F.3d at 40. Because the inquiry is so fact-specific, “[w]hether two employees are similarly
situated ordinarily presents a question of fact for the jury.” Matusick v. Erie Cty. Water Auth.,
757 F.3d 31, 54 (2d Cir. 2014) (quoting Graham, 230 F.3d at 39); Mandell v. Cty. of Suffolk, 316
F.3d 368, 379 (2d Cir. 2003) (same).
Here, Plaintiff asserts that Miriam Chapman was a similarly situated younger employee
who Defendants treated more favorably. 19 (Pl. Opp’n 14–15.) Plaintiff concedes that she and
Chapman had very different roles at the Hospital. While both Plaintiff and Chapman were
directors, they were in different departments and had different supervisors — Chapman was in
the ED reporting to Doreen O’Grady, the Nurse Executive, while Plaintiff was in the PAS
Department reporting to Udisky. (Defs. 56.1 ¶¶ 59–64; Pl. 56.1 ¶¶ 59–64.) Plaintiff was a
“clerical” employee whereas Chapman was a registered nurse and a “clinical” employee such
that they were subject to different “performance issues” and metrics. (Defs. 56.1 ¶ 64; Pl. 56.1
¶ 64.) When Plaintiff was terminated, Chapman was forty-nine years old and was therefore also
a member of the same protected class. (Decl. of Lauren Levine ¶¶ 17, 17 n.2, Docket Entry No.
34-45; (Dep. of Miriam Chapman (“Chapman Dep.”) 41:4–8, Defs. Ex. 43.) Defendants argue
that given Chapman and Plaintiff’s membership in the same protected class and the differences
19
According to Defendants, in discovery, Plaintiff identified additional comparators.
(Defs. Mem. 18.) However, in opposing summary judgment Plaintiff relies only on Chapman.
(Pl. Opp’n 14–15.)
21
in their roles at the Hospital, they are not similarly situated. (Defs. Mem. 15–20.)
However, Plaintiff’s disparate treatment argument focuses on the respective roles of
Plaintiff and Chapman with regard to the ED Logbook. According to Plaintiff, she shared
responsibility for the ED Logbook’s accuracy with Chapman, but when DOH uncovered errors
in the Logbook, Defendants only disciplined Plaintiff. (Pl. 56.1 ¶¶ 10(b), 72–74.) Plaintiff
argues that this difference in treatment for similar conduct raises an inference of discrimination.
(Pl. Opp’n 15.) Defendants argue that because Plaintiff had exclusive responsibility for the
Logbook and its errors, there is no inference of discrimination. (Defs. Mem. 18–20; Defs. Reply
in Support of Defs. Mot. (“Defs. Reply”) 4–5, Docket Entry No. 35.)
Despite Defendants’ assertions, there are disputed factual issues as to Chapman’s shared
responsibility for the ED Logbook, which the Court cannot resolve on a summary judgment
motion. Both Chapman and her supervisor assert that Chapman was responsible only for the
accuracy of the information her clerks entered into the “Envision” computer program and not the
accuracy of the information in the ED Logbook, even though the information from Envision was
included in the ED Logbook’s information. (Chapman Dep. 25:15–26:22; Decl. of Doreen
O’Grady (“O’Grady Decl.”) ¶¶ 8–10, Docket Entry No. 34-46) Similarly, in sworn declarations,
Udisky and O’Neill assert that Plaintiff, not Chapman, was exclusively responsible for the
accuracy of the ED Logbook. (Udisky Decl. ¶¶ 73, 78; O’Neill Decl. ¶ 9.) However, Udisky
testified multiple times during his deposition that Chapman and Plaintiff shared responsibility for
the accuracy of the ED Logbook, corroborating Plaintiff’s assertion. 20 In addition, O’Neill
20
See Udisky Dep. 95:23–25 (“Miriam and Doreen are supposed to work together to
ensure the logbooks are completed accurately.”); id. at 96:10–17 (“Q. . . . Are there any other
individuals at the hospital who were responsible for making sure that the information in the
22
testified that Chapman’s name came up in at least one meeting he attended about responsibility
for the ED Logbook. (O’Neill Dep. 88:6–89:3.) As to Chapman and Plaintiff’s treatment,
Udisky testified that he viewed the ED Logbook issues as “extremely serious” and that this
“drove his decision” to fire Plaintiff, (Udisky Decl. ¶ 72), but unlike Plaintiff, Chapman was
never disciplined or even spoken to about the errors in the ED Logbook, (Chapman Dep. 45:2–
9). Taken together, there are sufficient facts from which a jury could find that Chapman and
Plaintiff were jointly responsible for the ED Logbook, and therefore similarly situated, but
received disparate treatment based on the errors in the ED Logbook
Although Defendants identify the differences between Chapman and Plaintiff, those
differences would not preclude a reasonable jury from finding that they were similarly situated
with respect to the particular circumstances of this case. Chapman and Plaintiff had different
chains of command, but were directors of their respective departments and, as Defendants
acknowledge, Chapman’s department was responsible for entering some of the information used
to update the ED Logbook. Although Chapman’s supervisor asserts that she was only subject to
the clinical supervisor’s directives, O’Neill testified that he could issue a directive to Chapman
through her supervisor, which Chapman, like Plaintiff, was obligated to follow. (O’Neill Dep.
37:4–14.) In addition, although Chapman’s membership in the protected class could undercut an
inference of discrimination, at fourteen years younger than Plaintiff, she was still “substantially
younger,” which supports the inference. D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195
(2d Cir. 2007) (eight year age difference “significant enough to support an inference” of
discrimination even where younger employee was also within the protected age group); Sedelnik
logbooks was accurate? A. It would just be the two of them to my knowledge.”); id at 97:21–23
(“Q. So it was just Chapman and [Plaintiff] who were responsible for [the Logbook]? A. Yes.”).
23
v. City of Bridgeport, 837 F. Supp. 2d 12, 18 (D. Conn. 2011) (fourteen year difference
supported inference of discrimination even where younger employee was also within the
protected age group); Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 573 (S.D.N.Y.
2010) (twelve year age difference “sufficiently raised an inference of discrimination”). Based on
these disputed issues of fact, a reasonable jury could find disparate treatment supporting an
inference of discrimination.
Defendants argue that even if Plaintiff could raise an inference of discrimination, other
undisputed facts “so weaken any inference of age discrimination [that they] render it impossible
for Plaintiff to establish her prima facie case.” (Defs. Mem. 14.) As discussed below, even if
those facts tend to undermine an inference of discrimination, they do not preclude the inference.
Indeed, given Plaintiff’s minimal burden at the first step of the McDonnell Douglas burden
shifting scheme, these arguments are more appropriately raised at the pretext stage. See Tarshis
v. Riese Org., 211 F.3d 30, 38–39 (2d Cir. 2000) (finding that the plaintiff had sufficiently
established a prima facie case on a motion to dismiss and holding that although the defendant
“emphasizes that [the plaintiff] was 47 years old when hired and was already within the class
protected by the ADEA. That circumstance may be relevant at the [pretext] stage of the
McDonnell Douglas inquiry, but it does not compel dismissal of the complaint now”), abrogated
on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002). The Court nevertheless
addresses them here.
1.
Same actor inference
Defendants argue that Plaintiff cannot establish her prima facie case, in part, because
Udisky was the same individual that hired and terminated Plaintiff. (Defs. Mem. 16–17.)
Plaintiff does not dispute that Udisky hired her. Plaintiff argues, however, that Udisky was only
24
the “face” of her firing, and O’Neill, who was seventeen years younger than Plaintiff, was behind
her firing. (Pl. Opp’n 13–14.)
“When the same actor hires a person already within the protected class, and then later
fires that same person, ‘it is difficult to impute to her an invidious motivation that would be
inconsistent with the decision to hire.’” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d
Cir. 2000); Pronin v. Raffi Custom Photo Lab., Inc., 383 F. Supp. 2d 628, 639–40 (S.D.N.Y.
2005) (finding “same actor” inference severely undermined any inference of discrimination and
granting summary judgment where the decision-maker was over sixty years old when he hired
and terminated employee within two years). However, “even at the summary judgment stage of
litigation, ‘the same-actor inference is permissive, not mandatory, and even if the same
individuals made both decisions, the Court would not be compelled to give [the defendant] the
benefit of the inference.’” Benedith v. Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 319
(E.D.N.Y. 2014) (quoting Memnon v. Clifford Chance US, LLP, 667 F. Supp. 2d 334, 351
(S.D.N.Y.2009)).
In applying the same actor inference, “each case must involve an examination of all the
circumstances.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). Although the
inference can undermine a prima facie case, “the inference is less compelling when a significant
period of time elapses between the [events].” Carlton, 202 F.3d at 138; Kim v. Dial Serv. Int’l,
Inc., No. 97-9142, 1998 WL 514297, at *4 (2d Cir. June 11, 1998) (holding refusal to give “same
actor” instruction did not prejudice defendants “particularly inasmuch as over six years had
passed between the time plaintiff was hired and the time he was fired”); Benedith, 38 F. Supp. 3d
at 319–20 (finding that the “same-actor” inference did not, preclude Plaintiff’s claim where
“approximately four years” passed between hiring and firing); Thomas v. iStar Fin., Inc., 438 F.
25
Supp. 2d 348, 361 (S.D.N.Y. 2006) (rejecting same actor inference given three-year gap and
noting that “[i]n the Second Circuit, the inference no longer applies when more than two years
separate the hiring and firing”), aff’d, 629 F.3d 276 (2d Cir. 2010); cf. Schnabel v. Abramson,
232 F.3d 83, 91 (2d Cir. 2000) (finding same actor inference “highly relevant” where there was a
three-year gap between hiring and firing).
Here, the same actor inference does not preclude an inference of discrimination. There
was a five-year period between Plaintiff’s hiring in July of 2007 and her firing in August of
2012, which undermines the strength of the inference. See Carlton, 202 F.3d at 138; Kim, 1998
WL 514297, at *4. Furthermore, there is a factual dispute as to whether O’Neill, Udisky or both
decided to fire Plaintiff. Although O’Neill testified that Udisky made the decision to fire
Plaintiff, (O’Neill Dep. 18:19–25; 19:7–18), Udisky testified that he and O’Neill jointly decided
to fire Plaintiff, (Udisky Dep. 77:2–5, 78:9–24). Given the disputed facts as to who made the
decision to fire Plaintiff, the same actor inference is not available, and, even if Defendants had
shown it was, such an inference would not preclude Plaintiff’s otherwise established inference of
discrimination.
2.
Same protected age group inference
Defendants also argue that because Plaintiff was in the protected age group when hired,
and because Udisky was also within the protected age group, both facts preclude an inference of
discrimination from Udisky’s decision to terminate Plaintiff. (Defs. Mem. 15–16.) This Court
and others “have recognized that an allegation that a decision is motivated by age animus is
weakened when the decisionmakers are members of the protected class.” Bruder v. Jewish Bd.
of Family & Children’s Servs., No. 10-CV-5951, 2013 WL 789231, at * 7 (E.D.N.Y. Mar. 4,
2013) (citing cases); Waters v. Gen. Bd. of Global Ministries, 769 F. Supp. 2d 545, 554
26
(S.D.N.Y. 2011) (“[W]here the plaintiff and the individual whose conduct is at issue are
members of the same protected class, the inference that the conduct constitutes harassment or
discrimination is weakened.”). Similarly, “[a]ny inference of age animus is undermined [where]
Plaintiff was well within the protected age group when she was hired . . . .” Bruder, 2013 WL
789231, at *7 (citing Baguer v. Spanish Broad. Sys., Inc., No. 04-CV-8393, 2010 WL 2813632,
at *14 (S.D.N.Y. July 12, 2010) (finding that even assuming there was an inference of
discrimination based on the age difference between plaintiff and her replacement, it was
undermined by the plaintiff’s age at hiring, stating, “[b]eing in the protected class when hired
undermines any inference of age discrimination”), aff’d, 423 F. App’x 102 (2d Cir. 2011));
Mathews v. Huntington, 499 F. Supp. 2d 258, 267 (E.D.N.Y. 2007) (“[T]he inference of
discrimination is further weakened by the fact that plaintiff, who was sixty-one years old at the
time of his hiring, was well within the protected class when first hired.” (citation and internal
quotation marks omitted)).
However, neither of these factors is dispositive. See Tarshis, 211 F.3d at 38–39
(rejecting defendant’s argument that because plaintiff was within the protected age group when
hired, she could not establish the prima facie case, noting that such arguments “may be relevant
at the [pretext] stage of the McDonnell Douglas inquiry . . .”); Kalra v. HSBC Bank USA, N.A.,
567 F. Supp. 2d 385, 398 (E.D.N.Y. 2008) (noting that plaintiff’s status within the protected
class weakened her discrimination claim, but explicitly noting that it was not dispositive) aff’d,
360 F. App’x 214 (2d Cir. 2010); LaGrassa v. Autoone Ins. Co., No. 07-CV-1072, 2008 WL
3887606, at *8 (E.D.N.Y. Aug. 20, 2008) (“Although the inference of discrimination is much
weaker where plaintiff is well within the protected class when first hired, it is not a fortiori
foreclosed, and other factors must also be considered.” (internal citations and quotation marks
27
omitted)); Mathews, 499 F. Supp. 2d at 267 (noting that the decision-maker’s status within the
protected class weakened any inference of discrimination, but explicitly noting that fact was not
dispositive). Indeed, as the Second Circuit has recognized, “[t]he proposition that people in a
protected category cannot discriminate against their fellow class members is patently untenable.”
Danzer v. Norden Sys., Inc., 151 F.3d 50, 55 (2d Cir. 1998).
Here, the only undisputed fact undermining an inference of discrimination is Plaintiff’s
status as a member in the protected class when she was hired. Although Defendants highlight
Udisky’s membership in the protected class, as discussed above, there are disputed factual issues
as to whether O’Neill, Udisky or both terminated Plaintiff. To the extent O’Neill — who is
seventeen years younger than Plaintiff — made the decision to fire her, Defendants’ argument
would be meritless. Accordingly, although Plaintiff was a member of the protected class when
hired, and may have been terminated by Udisky, these non-dispositive facts do not preclude a
reasonable jury from finding an inference of discrimination based on Defendants’ alleged
disparate treatment of Plaintiff.
3.
Replacement within the protected class
Defendants also argue that because they replaced Plaintiff with Michael Muratore, who
was only two years younger than Plaintiff, there can be no inference of discrimination. (Defs.
Mem. 17–18.) Plaintiff argues that this fact does not undermine the inference of discrimination
for two reasons: (1) Defendants hired Muratore after she filed her complaint with the EEOC and
(2) Defendants terminated Muratore after only one year of employment. (Pl. Opp’n 14.)
Where an employer replaces a member of the protected class with another member of the
protected class, that fact may undermine any inference of discrimination. See Fleming v.
MaxMara USA, Inc., 371 F. App’x 115, 117 (2d Cir. 2010) (“While a plaintiff may usually
28
[show an inference of discrimination] by showing that she was replaced by someone not in her
protected class, Fleming was replaced by another black female, Lisa Derrick.” (internal citations
omitted)); Inguanzo v. Hous. & Servs., Inc., No. 12-CV-8212, 2014 WL 4678254, at *19
(S.D.N.Y. Sept. 19, 2014) (“Where a member of the plaintiff’s protected class is
contemporaneously hired as a replacement, the offering of proof of intentional discrimination
appears extremely difficult, if not practically impossible.” (internal quotation marks omitted)
(quoting Fleming v. MaxMara USA, Inc., 644 F. Supp. 2d 247, 266 (E.D.N.Y. 2009) (citing
cases), aff’d, 371 F. App’x 115 (2d Cir. 2010)); Johnson v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d
314, 323 (E.D.N.Y. 2014) (“Where no other evidence giving rise to an inference of
discrimination has been presented, the fact that a plaintiff is replaced with an individual within
his protected class undermines his attempt to establish a prima facie case of discrimination.”
(internal quotation marks and alterations omitted); White v. Pacifica Found., 973 F. Supp. 2d
363, 381 (S.D.N.Y. 2013) (“The fact that Plaintiff was replaced by a member of the same
protected class further undermines any inference of discriminatory intent.”); Montanile v. Nat’l
Broad. Co., 211 F. Supp. 2d 481, 487 (S.D.N.Y. 2002) (“That a plaintiff is replaced by another
in the same protected class weighs heavily against the inference that she suffered
discrimination.”), aff’d, 57 F. App’x 27 (2d Cir. 2003).
However, this fact is not dispositive, and the focus remains on whether the plaintiff “lost
out because of his age.” See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (U.S.
1996); Ferrell v. Leake & Watts Servs., Inc., 83 F. App’x 342, 346 & n.2 (2d Cir. 2003) (finding
that although the plaintiff “was replaced by two teachers over forty, who were also within the
protected class,” it did not “on its own, controvert Plaintiff’s claim of discrimination,” as “the
fact ‘[t]hat one person in the protected class has lost out to another person in the protected class
29
is . . . irrelevant, so long as he has lost out because of his age.’” (quoting O’Connor, 517 U.S. at
312)); see also Miles v. Dell, Inc., 429 F.3d 480, 488 (4th Cir. 2005) (noting that “hir[ing]
someone from within the plaintiff’s protected class in order ‘to disguise [an] act of
discrimination toward the plaintiff’” is “[o]ne clear example” of when replacement within the
protected class does not undermine discrimination). Furthermore, where a replacement within
the protected class follows a complaint of discrimination, such timing can support rather than
undermine an inference of discrimination. See Pride v. Summit Apartments, No. 09-CV-0861,
2012 WL 2912937, at *8 (N.D.N.Y. July 16, 2012) (If the plaintiff’s replacement “was hired
only after [the plaintiff] filed a complaint against [the defendant] . . . it is possible that a rational
fact finder could conclude that, rather than rebut the inference of discrimination, the hiring of the
African–American employee was merely a cover-up of the prior discrimination.”); cf. Fleming,
371 F. App’x at 117 (“[W]hile Fleming points to cases concluding that where a plaintiff is
replaced with a member of her protected class after the filing of a discrimination charge might
suggest a cover-up, here Derrick was hired at the same time that Fleming was fired, before
Fleming took any legal action against defendants.” (internal citations omitted)).
Here, although Muratore was within Plaintiff’s protected class, his hiring does not
preclude an inference of discrimination. 21 Because it is undisputed that Defendants hired
Muratore after Plaintiff filed her EEOC complaint, there is at least some limited support for an
argument that the hiring was done to mask discrimination. See Pride, 2012 WL 2912937, at *8.
21
Plaintiff’s reliance on Muratore’s short tenure at the Hospital does not support an
inference of discrimination. Without more it is nothing more than speculation that his departure
was part of a grand scheme to cover up age discrimination. See Fleming v. MaxMara USA, Inc.,
371 F. App’x 115, 117 (2d Cir. 2010) (“Fleming argues that Derrick was hired to disguise
defendants’ discriminatory act, but Fleming fails to point to any admissible evidence to support
this assertion.”).
30
In addition, although Udisky hired Muratore, it is unclear whether O’Neill, Udisky, or both
terminated Plaintiff. See Miles, 429 F.3d at 489 (holding that where one person fires an
employee and a second person hires the replacement, there is no inference of “nondiscrimination,” because “the second individual’s hiring decision has no probative value
whatsoever as to whether the first individual’s firing decision was motivated by the plaintiff's
protected status.”). Thus, because Muratore was hired to replace Plaintiff after Plaintiff filed a
complaint with the EEOC, Muratore’s hiring does not preclude an inference of discrimination.
Plaintiff has a de minimis burden to raise an inference of discrimination, and given the
disputed factual issues detailed above, a reasonable jury could find that Plaintiff has satisfied that
burden. Zann Kwan, 737 F.3d at 844.
ii.
Legitimate, non-discriminatory reason
Because Plaintiff can establish her prima facie case, the burden shifts to Defendants to
proffer non-discriminatory reasons for firing Plaintiff. Ruiz, 609 F.3d at 492. This “is not a
particularly steep hurdle,” Hyek, 702 F. Supp. 2d at 93, and [i]t is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff,”
Delaney, 766 F.3d at 168 (citation and internal quotation marks omitted). The burden “is one of
production, not persuasion; it ‘can involve no credibility assessment.’” Reeves, 530 U.S. at 142
(quoting Hicks, 509 U.S. at 509).
Here, Defendants proffer numerous non-discriminatory reasons for firing Plaintiff, all
relating to Plaintiff’s poor job performance. (Defs. Mem. 18.) These include complaints about
Plaintiff’s failure to address (1) long patient-waiting times, (2) substantial delays in assigning
hospital beds and (3) repeated errors in financial and other reports. (Id. at 24–25.) In addition,
Defendants cite Plaintiff’s improper interference with an ongoing investigation and her practice
31
of leaving her staff without supervision on nights and weekends, as well as her staff’s ongoing
failures to obtain accurate patient data. (Id. at 25.) Defendants also rely significantly on
Plaintiff’s errors and failings in handling the ED Logbook, which Defendants assert warranted
termination in and of itself. (Id. at 23–24.)
iii. Pretext
Where an employer articulates a non-discriminatory reason for firing the plaintiff, the
burden shifts back to the plaintiff to “prove that the employer’s proffered reason was a pretext
for discrimination.” Delaney, 766 F.3d at 168 (quoting McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 215 (2d Cir. 2006)). Plaintiff argues that she has satisfied this burden, and created a
triable issue of fact. Plaintiff asserts that the “flood of criticism” she experienced when the
Hospital changed management, were for the sole purpose of creating a record to justify her
termination on the basis of age.” (Pl. Opp’n 17.) Plaintiff cites her 2011 performance evaluation
as evidence of the scheme, given her low ratings in multiple categories for the first time in her
career, and asserts that the low ratings were without justification. (Id.) Plaintiff further asserts
that Defendants proffer inconsistent justifications for her termination, demonstrating pretext. (Id.
at 19.)
To satisfy the employee’s burden, she must present facts, which if “taken in [her] favor,
suffice to . . . [show that] a triable issue [exists] as to whether [her] age was a ‘but for’ cause of
[her] termination.” Delaney, 766 F.3d at 168 (quoting Gorzynski, 596 F.3d at 106). That age
was the “but for” cause of the termination “is not equivalent to a requirement that age was the
employers only consideration, but rather that the adverse employment action[ ] would not have
occurred without it.” Id. at 169. Although “direct evidence of an employer’s discriminatory
intent will rarely be found,” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[e]ven
32
in the discrimination context . . . a plaintiff must provide more than conclusory allegations to
resist a motion for summary judgment,” Delaney, 766 F.3d at 170. A plaintiff cannot merely
rationalize, explain, or disagree with an employer’s proffered non-discriminatory reasons to
survive summary judgment. See Cardo v. Arlington Cent. Sch. Dist., 473 F. App’x 21, 23 (2d
Cir. 2012) (“While Cardo disputes the specifics of some of the incidents cited by defendants, he
does not deny that these incidents occurred, and offers no evidence that the District did not in
good faith conclude that he had difficulties getting along with others.”); Woods v. Newburgh
Enlarged City Sch. Dist., 288 F. App’x 757, 760 (2d Cir. 2008) (“While Woods’s claimed
misunderstanding of her superior’s directive helps explain her exercise of poor judgment, it does
not demonstrate the falsity of this non-discriminatory reason for her discharge . . . .” (citing
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)); Fleming, 644 F. Supp. 2d at 266
(“[A] plaintiff’s factual disagreement with the validity of an employer’s non-discriminatory
reason for an adverse employment decision does not, by itself, create a triable issue of fact.”).
1.
Criticism of Plaintiff’s job performance
Plaintiff points to the “flood of criticism” she experienced as evidence of pretext, but
does not dispute the incidents, mistakes or misconduct underlying the criticism and Defendants’
non-discriminatory reasons for her termination. (Pl. Opp’n 17–19.) Plaintiff merely attempts to
explain these facts as insignificant or as Defendants’ after-the-fact mischaracterizations that were
not raised at the time. (Id.) However based on the record, Plaintiff cannot suggest that she was
unaware of the ongoing errors highlighted by Defendants.
In March, May, and June of 2010, the future-Executive Director, Mercieca, wrote directly
to Plaintiff about the PAS Department’s persistent delays in assigning patients hospital beds via
the “bed board,” demanding “[n]o more excuses,” and expressing concerns that the delays would
33
prevent the PAS Department from reaching their “metrics.” (Mar. 2, 2010 emails from Mercieca
to Plaintiff.) Plaintiff does not dispute that these problems occurred, or that Mercieca raised
them with her. Instead, Plaintiff asserts that other departments’ failures caused the failures in the
PAS Department. (Pl. 56.1 ¶ 8(f); Pl. Decl. ¶ 4.) In July of 2010, when then-Executive Director
Randazzo learned of significant patient registration delays and demanded an investigation,
Udisky relayed this information to Plaintiff and directed her to change her process. (Udisky
Decl. ¶¶ 27–28; July 2010 Emails.) Plaintiff does not dispute the concern expressed by
Randazzo, but instead disagrees with the underlying incident that prompted Randazzo’s concern.
(Pl. 56.1 ¶ 8(c).) Similarly, Plaintiff does not dispute that she left her staff unsupervised on
nights and weekends, but asserts that she had to do so, because no one approved her request for
more staff. (Pl. 56.1 ¶ 8(d).)
Plaintiff makes similar arguments about the issues raised in 2011. In August of 2011,
Udisky learned that Plaintiff interfered with an investigation of her subordinate, and raised this
issue with Plaintiff. (Udisky Decl. ¶ 56; Pl. Dep. 128:4–130:5.) Plaintiff does not dispute the
accusation or that Udisky spoke with her about it, but asserts that she acted with the Labor
Relations and Human Resources departments’ “direction and approval.” (Pl. 56.1 ¶ 8(f); Pl.
Dep. 128:14–129:4.) Plaintiff also argues that the well-documented problems with the ED
Logbook were caused by Chapman’s ED clerks. (Pl. 56.1 ¶ 10(b); Pl. Decl. ¶ 9.) Where, as
here, the reasons given for Plaintiff’s termination are well documented, non-discriminatory, and
Plaintiff concedes that these incidents occurred, her rationalizations and explanations are
insufficient to show that age was the but-for cause of her termination. See Markovich v. City of
New York, 588 F. App’x 76, 77 (2d Cir. 2015) (“While Markovich established a prima facie case
of discrimination, he did not dispute the accuracy of the observations reported in his negative
34
performance reviews.”); Curtis v. Citibank, N.A., 70 F. App’x 20, 23 (2d Cir. 2003) (“Although
it is true that a discrimination claim may be supported with only circumstantial evidence,
Citibank presents an abundance of well-documented non-discriminatory explanations for the
adverse actions, and the plaintiffs concede the facts underlying these explanations.”).
2.
Defendants’ “shifting” justifications
Plaintiff also argues that Defendant’ justifications for her termination are pretext because
they differ from the justifications given when Defendants terminated her. (Pl. Opp’n 19.) An
employer’s inconsistent or post hoc reasons for firing an employee can be indicia of pretext. See
Zann Kwan, 737 F.3d at 847 (finding a jury could infer pretext from the inconsistent
justifications given to the EEOC and in the subsequent Title VII suit, coupled with close
temporal proximity of the discharge and protected activity); EEOC v. Ethan Allen Inc., 44 F.3d
116, 120 (2d Cir. 1994) (“From such discrepancies a reasonable juror could infer that the
explanations given by Ethan Allen at trial were pretextual, developed over time to counter the
evidence suggesting age discrimination uncovered by the state investigation.”); DeMarco v. Holy
Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993) (noting that the pretext inquiry considers
“whether the putative non-discriminatory purpose was stated only after the allegation of
discrimination”). Nevertheless, merely having multiple reasons for firing an employee does not
constitute pretext where the differences among them are not materially inconsistent. See Roge v.
NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001) (employer’s justifications were “variations
. . . on the same theme rather than separate inconsistent justifications”); Mathews, 499 F. Supp.
2d at 267 n.6 (The varying “explanations must be materially inconsistent with one another.”
(citing cases); accord Zann Kwan, 737 F.3d at 853 (Parker, J., dissenting) (The record does not
establish that “the allegedly shifting reasons [the defendant] has asserted are in fact
35
contradictory. Rather, the shift in business focus and [the plaintiff’s] poor performance are
complementary — indeed the shift in focus may in fact be a cause of at least some of [the
plaintiff’s] performance problems.”).
Even where an employer’s failure to state all its reasons for an adverse action creates
some indicia of pretext, Plaintiff must nevertheless show that but for the plaintiff’s age, the
adverse action would not have occurred. See Hu v. UGL Servs. Unicco Operations Co., No. 13CV-4251, 2014 WL 5042150, at *7 (S.D.N.Y. Oct. 9, 2014) (“[E]ven assuming that Plaintiff
could establish pretext, he cannot demonstrate that discrimination was the ‘but-for’ cause of his
discharge.”); Hodges v. Rensselaer Hartford Graduate Ctr., Inc., No. 06-CV-850, 2008 WL
793594, at *10 (D. Conn. Mar. 20, 2008) (“Even assuming, however, that inconsistencies or
other indicia of pretext are present . . . they would not here support, either alone or in conjunction
with the other evidence raised by Plaintiff, an inference that discrimination on the basis of age
was the real reason for Plaintiff’s non-renewal.” (citing Timothy v. Our Lady of Mercy Med. Ctr.,
233 F. App’x 17, 20 (2d Cir. 2007)).
Plaintiff’s argument that Defendants proffer different justifications for her termination
fails to show that her age was the “but-for” cause of her termination. As an initial matter,
Plaintiff cannot show that Defendants’ reasons for her termination have been inconsistent, unlike
the cases relied on by Plaintiff. See Ethan Allen, 44 F.3d at 120 (employer gave varying reasons
for employee’s discharge, first citing a decrease in work, then performance issues, and finally the
employee’s alleged lack of qualifications); Byrnie, 243 F.3d at 105–06 (citing Ethan Allen and
finding that a jury could question the real reason for refusing to hire the plaintiff where, among
other things, the employer initially cited the plaintiff’s unfamiliarity with certain standards, but
minimized the importance of the standards in the subsequent civil suit after a search committee
36
member testified that the hired candidate also lacked familiarity standards). Defendants have
consistently maintained that the ED Logbook was a primary reason for firing Plaintiff. 22
Plaintiff does not dispute the record of incidents and errors or that her supervisors viewed
them as serious errors and frequently discussed them with her. In fact, though she relies on it
now to support allegations of an alleged scheme, Plaintiff admits her acute awareness of the
“flood of criticism” leading to her dismissal. (Pl. Opp’n 17; Pl. Dep. 188:2–15.) Viewed in the
light most favorable to Plaintiff, Defendants’ failure to list each undisputed issue at the
termination meeting might raise questions as to the totality of events supporting Plaintiff’s
“unsatisfactory performance,” but does not demonstrate that “a reasonable jury could conclude
by a preponderance of the evidence that the employer’s explanations are pretextual and that, but
for . . . [P]laintiff’s age, the employer would not have taken the action it did.” Chapotkat v. Cty.
of Rockland, 605 F. App’x 24, 26 (2d Cir. 2015); see Delaney, 766 F.3d at 169 n.2; Hu, 2014
WL 5042150, at *7.
3.
Plaintiff’s remaining pretext arguments
Plaintiff argues that the ED Logbook issues were mere pretext for age discrimination
because Defendants decided to fire her before those issues arose. (Pl. Opp’n 18.) Plaintiff
alleges that during her 2011 evaluation, Udisky stated she should look for a new job. (Pl. 56.1
22
While the record does show that Defendants did not specify all the reasons for
terminating Plaintiff at the meeting where they terminated her, there is no evidence that
Defendants’ justifications shifted or were inconsistent. In his deposition, O’Neill testified that
prior to Plaintiff’s firing, he, Udisky, and others, discussed Plaintiff’s performance issues and
investigations by HR into the PAS Department. (O’Neill Dep. 21:25–22:20.) In her deposition,
Plaintiff testified that at the meeting where Defendants terminated her, the attendees, including
Udisky and O’Neill, explained she “was being terminated due to the logbook,” without
referencing any other reason. (Pl. Dep. 211:25–212:2.) Plaintiff’s termination letter broadly
states that she was terminated “for unsatisfactory performance.” (Termination Letter.) During
this civil action, Defendants have maintained that Plaintiff was terminated for performance
issues, and that the ED Logbook issues were critical. (Udisky Decl. ¶ 72.)
37
¶ 46.) However, construed in the light most favorable to Plaintiff, Udisky’s statement does not
support any discriminatory motive, but rather suggests that he had already determined that
Plaintiff’s performance was substandard, warranting dismissal. But Plaintiff was not terminated
at that time, and instead, she received additional time to fix errors with the ED Logbook, and
failed to do so. (Defs. 56.1 ¶ 31–42; Pl. 56.1 ¶¶ 31–42 (admitting that “[Plaintiff] had
supposedly been working hard to ensure the ED Logbook’s accuracy and completeness for
almost seven months at that point, and had represented to upper management that she and the
managers in her department were auditing the [ED] Logbook daily to ensure it was correct”).)
Only after Plaintiff failed to address those errors did Defendants terminate her employment.
Contrary to Plaintiff’s assertion, there is no evidence in the record that Defendants delayed her
termination to cover any discriminatory action. The delay between Udisky’s comment, and
Plaintiff’s ultimate firing does not suggest that the delay was in furtherance of some alleged
scheme or that age was the but-for cause of Plaintiff’s firing. Rather, as discussed above,
Plaintiff was given an opportunity to correct the problems. Finally, the fact that Muratore
replaced Plaintiff only after she filed her EEOC complaint is insufficient to show pretext. See
Hirschberg v. Bank of Am., N.A., 754 F. Supp. 2d 500, 520 (E.D.N.Y. 2010) (defendant
terminated plaintiff’s substantially younger replacement after plaintiff’s EEOC complaint, but
the timing of the discharge alone was insufficient to establish pretext).
Given the cumulative weight of the undisputed evidence, a reasonable jury could not find
that but for Plaintiff’s age, Defendants would not have terminated her. Accordingly, Defendants’
motion for summary judgment as to Plaintiff’s discrimination claim under the ADEA and the
NYSHRL is granted.
38
c.
Retaliation — ADEA and NYSHRL
Like discrimination claims, courts analyze ADEA and NYSHRL retaliation claims under
the McDonnell Douglas burden-shifting standard. See Gorzynski, 596 F.3d at 110; Bruder, 2013
WL 789231, at *7 (“Retaliation claims under the ADEA are also analyzed under the McDonnell
Douglas burden-shifting test.” (citing Gorzynski, 596 F.3d at 110)). First, the plaintiff bears the
de minimis burden of establishing a prima facie case of retaliation. Zann Kwan, 737 F.3d at 844.
If the plaintiff satisfies this burden, “then a presumption of retaliation arises and the employer
must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was
retaliatory.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010)
(citations omitted); see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568
n.6 (2d Cir. 2011) (discussing the burden-shifting analysis in retaliation context); Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (same). If the employer succeeds
at the second stage, the presumption of retaliation dissipates, and the plaintiff must show that, but
for the protected activity, she would not have been terminated. See Univ. of Tex. S.W. Med. Ctr.
Nassar, 570 U.S. ---, 133 S. Ct. 2517, 2534 (2013) (holding that a plaintiff asserting a Title VII
retaliation claim “must establish that his or her protected activity was a but-for cause of the
alleged adverse action by the employer”); Wolf v. Time Warner, Inc., 548 F. App’x 693, 695 (2d
Cir. 2013) (“To prove retaliation, Wolf must show that this [age discrimination] complaint was a
‘but for’ cause of her termination.” (citing Nassar, 570 U.S. at ---, 133 S. Ct. at 2528)). 23
23
It remains unclear whether “but-for” causation applies to NYSHRL retaliation claims
after the Supreme Court’s decision in Nassar, requiring but-for causation in Title VII retaliation
cases. See Kleehammer v. Monroe Cty., 583 F. App’x 18, 21 (2d Cir. 2014) (“We have not
decided whether the but-for-causation standard also now applies to retaliation claims under
NYSHRL.”); Giudice v. Red Robin Int’l, Inc., 555 F. App’x 67, 70 n.1 (2d Cir. 2014) (refusing
to address the question as non-dispositive); Zann Kwan, 737 F.3d at 847 n.7 (“Because the
39
i.
Prima facie case
In order to establish a prima facie case of retaliation, a plaintiff must establish that
“(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the
employee suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Kelly v. Howard I. Shapiro & Assocs. Consulting
Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting Lore v. City of Syracuse, 670
F.3d 127, 157 (2d Cir. 2012)); see Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013).
Plaintiff’s burden “is minimal and de minimis,” and the court’s role in evaluating a summary
judgment request is to determine only whether proffered admissible evidence would be sufficient
to permit a rational finder of fact to infer a retaliatory motive. See Zann Kwan, 737 F.3d at 844;
Campbell v. New York City Transit Auth., --- F. Supp. 3d ---, 2015 WL 1349820, at *16
(E.D.N.Y. Mar. 26, 2015) (citing Zann Kwan, 737 F.3d at 844).
Defendants do not dispute that Plaintiff has satisfied the first three elements. Plaintiff’s
plaintiff’s claims survive under the Nassar ‘but-for’ standard, we do not decide whether the
NYSHRL claim is affected by Nassar, which by its terms dealt only with retaliation in violation
of Title VII.”); see also St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 321 n.14
(E.D.N.Y. 2014) (detailing the similarities between the statutory texts of Title VII and NYSHRL
and noting the ambiguity as to whether “but for” causation applies to NYSHRL retaliation
claims). Because the NYSHRL has traditionally followed the federal discrimination laws’
analytical framework, this Court will continue applying “but for” causation to NYSHRL
retaliation claims. See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 218–22 (E.D.N.Y.
2014) (applying but-for standard to retaliation claims under Title VII and NYSHRL); Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 247 (E.D.N.Y. 2014) (applying “but-for” standard to vacate
NYSHRL verdict on retaliation claim); St. Juste, 8 F. Supp. 3d at 321 n.14 (same); Weber v. City
of New York, 973 F. Supp. 2d 227, 266 (E.D.N.Y. 2013) (“[B]ased on the Supreme Court’s
statutory analysis in Nassar and Gross . . . and the similarity of the language in the ADEA
retaliation statute, the Court finds that Plaintiff must prove but-for causation in order to establish
an ADEA retaliation claim.” (internal citations omitted)); see also Richardson v. Bronx Lebanon
Hosp., No. 11-CV-9095, 2014 WL 4386731, at *16 n.16 (S.D.N.Y. Sept. 5, 2014) (citing cases
in this Circuit and applying the but-for causation standard); Taylor v. Seamen’s Soc. For
Children, No. 12-CV-3713, 2013 WL 6633166, at *23 (S.D.N.Y. Dec. 17, 2013) (same).
40
letter to NSLIJ Health System CEO Michael Dowling complaining of discrimination was a
protected activity, her firing was an adverse employment action, and Defendants’ “general
corporate knowledge” was sufficient to establish Defendants’ knowledge. (Defs. Mem. 30.) The
only element Defendants contest is the “causal connection” between the protected activity and
Plaintiff’s termination. (Id.)
Defendants argue that although their general corporate knowledge satisfies the
knowledge element of Plaintiff’s prima facie case, because Udisky and O’Neill lacked
knowledge of Plaintiff’s complaint when they terminated her, Plaintiff cannot establish a causal
connection between her protected activity and her termination. (Id.; Defs. Reply 8–9.) Plaintiff
argues that temporal proximity between the protected activity and her firing is sufficient to show
a causal connection for her prima facie case. (Pl. Opp’n 20–21.)
Plaintiff cannot rely on general corporate knowledge alone to satisfy the third “causal
connection” prong. See Zann Kwan, 737 F.3d at 844 n.4 (“[The plaintiff] cannot satisfy the
causation prong through mere corporate knowledge . . . .”); Weber v. City of New York, 973 F.
Supp. 2d 227, 268 n.25 (E.D.N.Y. 2013) (holding that the defendant’s corporate knowledge
satisfied the “knowledge” prong but was insufficient, without more, to satisfy the “causal
connection” prong (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
However, one way to present evidence of a causal connection is through the temporal proximity
between the protected activity and the adverse employment action. See Zann Kwan, 737 F.3d at
844 n.4 (“[The plaintiff] demonstrates causation indirectly by the temporal proximity between
her complaint and her termination . . . .”). There is no bright line for when two events are
sufficiently close in time to support a causal connection, but “the Second Circuit has held that
periods as long as five months are not too long.” Weber, 973 F. Supp. 2d at 270–71 (citing
41
Gorzynski, 596 F.3d at 110–11); see Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir.
2014) (noting that “five months might be enough to establish a prima facie case”).
Although there may be no bright line, “[w]here, as here, a plaintiff relies exclusively on
timing to [establish] causation, the temporal proximity between the protective activity and
adverse employment action must be ‘very close.’” Vale v. Great Neck Water Pollution Control
Dist., 80 F. Supp. 3d 426, 441 (E.D.N.Y. 2015) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001); Henry v. N.Y.C. Health & Hosp. Corp., 18 F. Supp. 3d 396, 412 (S.D.N.Y.
2014) (“While the Second Circuit has articulated no ‘bright line’ rule for when an alleged
retaliatory action occurs too far in time from the exercise of a federal right to be considered
causally connected, it is well settled that when ‘mere temporal proximity’ is offered to
demonstrate causation, the protected activity and the adverse action must occur ‘very close’
together.” (citation and internal quotation marks omitted) (citing cases)); Murray v. Visiting
Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (“[D]istrict courts within the
Second Circuit have consistently held that the passage of two to three months between the
protected activity and the adverse employment action does not allow for an inference of
causation.”) (collecting cases). Indeed, where timing is the only evidence of causal connection,
the facts and circumstance of a given case become more relevant. See Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only basis for a
claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation does not arise.”).
Further, where it is undisputed that the decision maker was unaware of the employee’s
protected activity, that fact may be evidence that there is no causal connection. Papelino v.
Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011) (“[L]ack of knowledge on
42
the part of particular agents who carried out the adverse action is evidence of lack of causal
connection . . . .” (citing Gordon, 232 F.3d at 117); Gordon, 232 F.3d at 117 (“The lack of
knowledge on the part of particular individual agents is admissible as some evidence of a lack of
a causal connection, countering plaintiff’s circumstantial evidence of proximity . . . .”); E.E.O.C.
v. Bloomberg L.P., 967 F. Supp. 2d 816, 859 (S.D.N.Y. 2013) (“[T]he lack of evidence
indicating knowledge of particular individual agents can doom a plaintiff’s ability to show the
fourth element (causation).” (citing Gordon, 232 F.3d at 117)). A plaintiff may still establish a
causal connection by “counter[ing] with evidence that the decision-maker [who lacked
knowledge] was acting on orders or encouragement of a superior who did have the requisite
knowledge.” Papelino, 633 F.3d at 92 (citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 148
(2d Cir. 2010) and Gordon, 232 F.3d at 117); see Summa, 708 F.3d at 127 (“To the extent that
decisionmaker knowledge is relevant in establishing causation, that knowledge may be satisfied
by demonstrating that ‘the agent who decides to impose the adverse action but is ignorant of the
plaintiff's protected activity acts pursuant to encouragement by a superior (who has knowledge)
to disfavor the plaintiff.’” (quoting Henry, 616 F.3d at 148)).
Here, Plaintiff wrote to CEO Dowling on or about March 25, 2012, and Defendants
terminated her four and a half months later, on August 18, 2012. (Defs. 56.1 ¶¶ 47, 49; Pl. 56.1
¶¶ 47, 49.) This close temporal proximity may raise some inference of a causation connection
between Plaintiff’s protected activity and her firing. See Summa, 708 F.3d at 127; Gorzynski, 596
F.3d at 110–11. However, it is the only evidence Plaintiff presents to show a causal connection,
and Plaintiff does not dispute that the relevant decision-makers — Udisky and O’Neill — had no
knowledge of her protected activity until after she was terminated. (Defs. 56.1 ¶ 54; Pl. 56.1 ¶
54; Pl. Mem. 20–21.) In the ordinary case where a decision-maker denies direct knowledge, the
43
plaintiff’s claim may survive if there is “evidence that the decision-maker was acting on orders
or encouragement of a superior who did have the requisite knowledge.” Papelino, 633 F.3d at
92. However, Plaintiff has failed to present any evidence permitting such an inference here.
First, although it is undisputed that Dowling and O’Neill communicated regularly, there
is no evidence that they communicated about Plaintiff or issues that concerned Plaintiff. (See
O’Neill Dep. 15:17–17:16.) Second, and most importantly, although it is undisputed that
Dowling’s office received Plaintiff’s letter, there is no suggestion by Plaintiff or in the record
that Dowling — or anyone else at NSLIJ — was aware of Plaintiff’s complaints before her
termination. 24 This is critical, because without such knowledge, there is no basis to conclude
that a superior directed or encouraged her termination on basis of the letter. Although Plaintiff
has only a de minimis burden at the prima facie stage, because Plaintiff does not dispute that the
decision-makers were wholly unaware of her protected activity and presents no facts permitting a
reasonable jury to conclude that someone with knowledge of her protected activity directed or
encouraged these unknowing decision-makers to terminate her, she has failed to satisfy even that
minimal burden. See Papelino, 633 F.3d at 92; Summa, 708 F.3d at 127; Bloomberg L.P., 967 F.
Supp. 2d at 859. However, as discussed below, even if Plaintiff had established a prima facie
case, Plaintiff cannot show that “but for” her protected activity, she would not have been
terminated.
24
Even when viewing the record in the light most favorable to Plaintiff, there is no
evidence suggesting that Dowling knew what was in the letter. Someone among Dowling’s staff
read Plaintiff’s letter and knew it presented a legal issue, because they forwarded it to the
NSLIJ’s Office of Legal Affairs. (Defs. 56.1 ¶ 52; Pl. 56.1 ¶ 52.) There is no evidence
illuminating when or how Dowling’s staff made the decision; only that someone forwarded it “in
the ordinary course.” (Defs. 56.1 ¶ 53; Dore Decl. ¶ 9.) At some point, someone forwarded the
letter again, this time to a paralegal, on whose desk it remained until Plaintiff was terminated.
(Defs. 56.1 ¶¶ 52–53; Pl. 56.1 ¶¶ 52–53.)
44
ii.
Non-retaliatory reasons
Defendants’ proffered nondiscriminatory reasons for firing Plaintiff apply equally to her
retaliation claim. As discussed in detail above, Plaintiff’s supervisors repeatedly noted
Plaintiff’s poor performance through the years, particularly in 2011. As Plaintiff failed to correct
these errors, and made serious new errors in handling the ED Logbook, Defendants decided to
terminate her employment. In light of these non-retaliatory reasons, the burden shifts back to
Plaintiff to show that these reasons are mere pretext.
iii. Pretext
To survive summary judgment on a claim of retaliation, a plaintiff must show that
retaliatory intent was the “but-for” cause of any wrongful actions — that is, “the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of
the employer.” Nassar, 570 U.S. at ---, 133 S. Ct. at 2533; Zann Kwan, 737 F.3d at 850 (noting
that Title VII retaliation claims must show “but-for” causation) (citing Nassar, 570 U.S. at ---,
133 S. Ct. at 2533). “Temporal proximity alone is insufficient to defeat summary judgment at
[this] stage.” Zann Kwan, 737 F.3d at 847; see Abrams, 764 F.3d at 254 (“[T]emporal proximity
alone is not enough to establish pretext in this Circuit.” (citing El Sayed v. Hilton Hotels Corp.,
627 F.3d 931, 933 (2d Cir. 2010)); Rumsey v. Northeast Health, Inc., --- F. Supp. 3d ---, 2015
WL 791794, at *18 (N.D.N.Y. Feb. 25, 2015) (finding temporal proximity “particularly
insufficient” to show pretext where although there was a short time period between the
employee’s activity and termination, the employee had a history of problems pre-dating the
protected activity and had committed serious misconduct post-dating the protected activity).
“However, a plaintiff may rely on evidence comprising her prima facie case, including temporal
proximity, together with other evidence such as inconsistent employer explanations, to defeat
45
summary judgment at [the pretext] stage.” Zann Kwan, 737 F.3d at 847 (finding close temporal
proximity and inconsistent explanation for termination sufficient to raise a triable issue of fact as
to pretext); see Cowan v. City of Mount Vernon, --- F. Supp. 3d ---, 2015 WL 1400088, at *23
(S.D.N.Y. 2015) (finding temporal proximity of mere days along with the lack of evidence or
indication that the employee was a poor performer sufficient to raise a triable issue of fact as to
pretext).
Here, temporal proximity alone is insufficient to show Defendants’ reasons are pretext,
and Plaintiff presents no other evidence from which a reasonable jury could find that retaliation
was the but-for cause of Plaintiff’s termination. This is not a case where the Hospital viewed
Plaintiff’s performance negatively only after she sent a letter to Dowling complaining of
discrimination. Nor is it a case where the Hospital has provided inconsistent justifications for
her termination. Plaintiff’s sharply negative 2011 evaluation preceded Plaintiff’s letter to
Dowling, and addressed her poor performance, in particular with the ED Logbook. Indeed,
Plaintiff herself asserts that Defendants were determined to fire her at the time of the 2011
evaluation. (Pl. Dep. 56:6–10; see also Pl. Opp’n 18.)
Moreover, beginning in 2009, Plaintiff’s supervisors routinely raised similar issues with
her performance and demanded that she make corrections. In addition, as discussed above in
connection with Plaintiff’s discrimination claims, Defendants’ reasons for Plaintiff’s termination
have remained consistent — they terminated her for her documented poor performance in
multiple areas, and in particular, for the problems with the ED Logbook. Because Plaintiff fails
to raise additional evidence that these reasons are pretext, no reasonable jury could find that butfor Plaintiff’s letter to Dowling, her employment would not have been terminated. See Abrams,
764 F.3d at 255. Accordingly, the Court grants Defendants’ motion for summary judgment as to
46
Plaintiff’s ADEA and NYSHRL retaliation claims.
iv. NYCHRL claims and attorneys’ fees
Plaintiff also brings claims of age discrimination and retaliation in violation of the
NYCHRL. (Compl. ¶ 43.) “District courts may decline to exercise supplemental jurisdiction
over a claim if the district court has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine —
judicial economy, convenience, fairness, and comity — will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Pension Ben. Guar. Corp. v. Morgan Stanley
Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (citations and internal quotation marks
omitted); Spiegel, 604 F.3d at 83 (“[T]he district court may also decide whether to exercise
supplemental jurisdiction over this claim; it may determine that this area of law would benefit
from further development in the state courts and therefore dismiss the claim without prejudice to
refiling in state court.”); see also One Commc’ns Corp. v. J.P. Morgan SBIC LLC, 381 F. App’x
75, 82 (2d Cir. 2010) (“If all of a plaintiff’s federal claims are dismissed, a district court is well
within its discretion to decline to assert supplemental jurisdiction over any state law claims”);
Sullivan v. City of New York, No. 10-CV-0038, 2011 WL 3806006, at *6 (S.D.N.Y. Aug. 29,
2011) (“[W]here federal claims are dismissed before trial, the state [claims] should be dismissed
as well.” (quoting Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir. 1998))). The Court declines
to exercise supplemental jurisdiction over the remaining state law claims. Plaintiff’s age
discrimination and retaliation claims pursuant to the NYCHRL are therefore dismissed without
47
prejudice to re-file in state court. 25
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as
to Plaintiff’s ADEA and NYSHRL discrimination and retaliation claims, and dismisses
Plaintiff’s NYCHRL claims without prejudice. The Court denies Defendants’ motion for
attorneys’ fees without prejudice.
SO ORDERED:
s/MKB
MARGO K. BRODIE
United States District Judge
Dated: September 22, 2015
Brooklyn, New York
25
Defendants also moved for attorneys’ fees under a provision of the New York City
Administrative code permitting a court to award attorneys’ fees to a prevailing party in a
NYCHRL discrimination suit. See N.Y.C. Admin. Code § 8-502(f). Because the Court declines
to exercise supplemental jurisdiction over Plaintiff’s NYCHRL claims, Defendants’ motion for
attorneys’ fees is moot, and the Court expresses no view as to the merits of Defendants’ request.
48
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