Wierzbicki v. County of Rensselaer, New York et al

Filing 61

MEMORANDUM-DECISION and ORDER - That defendants' 43 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to Perez's claims against Doe defendants, (Compl. para. 9); NYSHRL claims against Bauer in her individual capacity, (id. paras. 42-45); ADEA claim, (id. paras. 28-30); and Section 1983 age discrimination claim, (id. paras. 35-38); and DENIED in all other respects. That the Clerk terminate the Doe defendants from this action. That this case is now deemed trial-ready and a trial scheduling order will be issued in due course. Signed by Senior Judge Gary L. Sharpe on 7/13/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
NELLIE A. PEREZ, as
Administrator of the Estate of
Gerard Wierzbicki,
Plaintiff,

1:14-cv-950
(GLS/DJS)

v.
COUNTY OF RENSSELAER, NEW
YORK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bosman Law Firm, LLC
201 West Court Street
Rome, NY 13440
FOR THE DEFENDANTS:
Napierski, Vandenburgh Law Firm
296 Washington Avenue Extension
Albany, NY 12203

AJ BOSMAN, ESQ.

SHAWN BROUSSEAU, ESQ.1

Gary L. Sharpe
Senior District Judge

1

Although Jennifer McGrath, Esq. has filed documents on defendants’ behalf, (see,
e.g., Dkt. No. 33), she has not filed a notice of appearance. See N.D.N.Y. L.R. 83.2(a). Diane
Schilling, Esq. signed and filed a letter on defendants’ behalf, (Dkt. No. 59), but also has not
filed a notice of appearance. Likewise, Stephen Pechenik, Esq., who was noticed in a
certificate of service, (Dkt. No. 33), has not filed a notice of appearance. Thus, the only
attorney of record for defendants is Brousseau. The Clerk is directed to amend the docket
accordingly.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Nellie A. Perez is the administrator of the estate of Gerard
Wierzbicki, who commenced this action against the County of Rensselaer,
New York, Laura Bauer in her individual and official capacity as Director of
Probation of the County, John Doe(s), and Jane Doe(s).2 (Compl., Dkt.
No. 1.) Perez’s remaining claims are for violations of Title VII of the Civil
Rights Act (Title VII),3 the Age Discrimination in Employment Act (ADEA),4
42 U.S.C. § 1983 (Section 1983), and the New York State Human Rights
Law (NYSHRL). (Compl.; Dkt. No. 15.) Pending is defendants’ motion for
summary judgment. (Dkt. No. 43.) For the reasons that follow, the motion
is granted in part and denied in part.
II. Background
A.

Facts5

2

The John Doe and Jane Doe defendants are hereinafter referred to collectively as
Doe defendants.
3

See 42 U.S.C. §§ 2000e-2000e-17.

4

See 29 U.S.C. §§ 621-34.

5

Unless otherwise noted, the facts are not in dispute.

2

Wierzbicki was a probation officer employed at the County Probation
Department. (Defs.’ Statement of Material Facts (SMF) ¶ 3, Dkt. No. 43,
Attach. 1.) In July 2013, two senior probation officer positions opened. (Id.
¶ 4.) These positions are Civil Service positions that must be filled in
accordance with New York State Civil Service Law. (Id. ¶ 5.) Accordingly,
Bauer requested and received a Certification of Eligibles List from the
County Civil Service Commission. (Id. ¶¶ 6-7.) Wierzbicki had a final
exam rating of 95%, Jacqueline Meeks 90%, Karen Liberty 85%, and Dan
Mahoney 85%. (Id. ¶ 8.) Pursuant to the Civil Service Law, only those four
candidates could be considered for the two promotions. (Id. ¶ 9.) In
August 2013, panel interviews of the candidates (except for Meeks, who
was not interested in either position) were conducted. (Id. ¶¶ 10-11.)
After the interviews, the merits and shortcomings of the candidates
were discussed among the interviewers, (id. ¶ 14),6 including Bauer, who is
responsible for making the selections, (Dkt. No. 43, Attach. 25 at 69).
Bauer selected Liberty and Mahoney for the positions. (Defs.’ SMF ¶ 17.)
She felt that Wierzbicki lacked experience training others and noted his

6

Perez’s denial of this fact is not supported by her citations to the record, and thus the
fact is deemed admitted. (Dkt. No. 47, Attach. 14 ¶ 14); see N.D.N.Y. L.R. 7.1(a)(3).

3

admission that the use of technology was his greatest weakness. (Id.
¶ 15.)7 Bauer explained to him that “it was felt that Ms. Liberty and Mr.
Mahoney seemed the best fit after all the candidates were asked the same
questions about training, leadership, policy[,] and technology.” (Id. ¶ 18.)8
Perez contends that the following additional facts are in dispute.9
After Bauer became Director in 2009, Wierzbicki “requested training
updates in different areas so that [he] would be more eligible for
promotions.” (Dkt. No. 47, Attach. 12 ¶¶ 3-4.) Bauer told him that the
training was unavailable, but, later, younger female employees who were
given training were promoted over Wierzbicki. (Id. ¶ 4.) Bauer also “did
not inform [Wierzbicki] which positions were available prior to [his]
interview” when she held general interviews for three senior probation
officer positions. (Id. ¶ 11.)
7

This is another instance where Perez’s denial of a fact is not supported by her
citations to the record, and thus the fact is deemed admitted. (Dkt. No. 47, Attach. 14 ¶ 15);
see N.D.N.Y. L.R. 7.1(a)(3).
8

Again, Perez’s denial of this fact is not supported by her citations to the record, and
the fact is deemed admitted. (Dkt. No. 47, Attach. 14 ¶ 18); see N.D.N.Y. L.R. 7.1(a)(3).
9

Notably, Perez failed to “set forth any additional material facts that [she] contends are
in dispute in separately numbered paragraphs, followed by a specific citation to the record
where the fact is established.” N.D.N.Y. L.R. 7.1(a)(3). Although the court nonetheless
considers the three affirmations filed in opposition to summary judgment, (Dkt. No. 47,
Attachs. 10-12), as setting forth such facts, Perez’s counsel should be mindful that failing to
abide by basic rules is sloppy practice and wastes the court’s time. See House v. Wackenhut
Servs., Inc., No. 10 Civ. 9476, 2012 WL 4017334, at *2 (S.D.N.Y. Aug. 20, 2012).

4

Numerous individuals with less experience and lower Civil Service
scores were promoted over Wierzbicki who were female and/or younger
than him: Dana Bliley (female), Pauline Franz (female, twelve years
younger), Christine Miner (female, twelve years younger), Karen Liberty
(female, fourteen years younger), Teresa Hansen (female, eleven years
younger), Kara Wohlleber (female, eighteen years younger), Dan Mahoney
(male, eighteen years younger), Rebecca Zido (female, thirteen years
younger), and Kelly Miazga (female, nine years younger). (Id. ¶ 9.)10
Additionally, since Bauer became Director, all supervisors in the
department are female. (Id. ¶ 10.) To wit, Bauer promoted seven different
females to supervisor positions over Wierzbicki and two other male
employees. (Id.)
“In August 2015, because of the stress and anxiety of constantly
being passed over for promotions, and the humiliation and loss of respect
of [his] co-workers,” Wierzbicki’s doctor decided to take him out of work.
(Id. ¶ 17.) It is undisputed that Wierzbicki retired in February 2016. (Defs.’
SMF ¶ 37.) Wierzbicki attributed his retirement to continued stress and

10

Wierzbicki’s affirmation attacks the qualifications of various of these individuals.
(Dkt. No. 47, Attach. 12 ¶¶ 11, 13-16.)

5

anxiety. (Dkt. No. 47, Attach. 12 ¶ 18.)
B.

Procedural History
After Wierzbicki filed the complaint in July 2014, (Compl.),

defendants moved to dismiss, (Dkt. No. 6). The court granted in part and
denied in part the motion,11 (Dkt. No. 15), leaving the following claims: (1)
Title VII gender discrimination against the County, (Compl. ¶¶ 25-27); (2)
ADEA age discrimination against the County, (id. ¶¶ 28-30); (3) Section
1983 gender discrimination against the County, Bauer, and Doe
defendants, (id. ¶¶ 31-34); (4) Section 1983 age discrimination against the
County, Bauer, and Doe defendants, (id. ¶¶ 35-38); and (5) NYSHRL
gender and age discrimination against Bauer in her individual capacity and
Doe defendants, (id. ¶¶ 42-45). Defendants filed the instant motion in
August 2016. (Dkt. No. 43.)
On February 3, 2017, a suggestion of death was filed, which stated
that Wierzbicki passed away on January 31, 2017. (Dkt. No. 52.) On April
30, 2018, the court granted plaintiff’s motion requesting that Perez, as
administrator of Wierzbicki’s estate, be substituted for Wierzbicki as

11

Technically, defendants also moved for summary judgment, (Dkt. No. 6), which the
court denied, (Dkt. No. 15).

6

plaintiff in this action. (Dkt. No. 60.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Doe Defendants
Defendants argue that they are entitled to summary judgment as to

claims against the Doe defendants. (Dkt. No. 43, Attach. 28 at 23.) Perez
makes no argument to the contrary. (See generally Dkt. No. 47, Attach.
13.) As defendants’ argument is facially meritorious, Perez’s failure to
respond is deemed as consent to summary judgment on these claims.
See N.D.N.Y. L.R. 7.1(b)(3); Jackson v. Onondaga County, 549 F. Supp.
2d 204, 222 (N.D.N.Y. 2008).
B.

NYSHRL Claims Against Bauer in Her Individual Capacity
Defendants seek summary judgment on the NYSHRL claims against

Bauer in her individual capacity. (Dkt. No. 43, Attach. 28 at 20-21.) As the
7

court explained in its prior Memorandum-Decision and Order, notice of
claim requirements apply to county employees sued in their individual
capacities if the county is required to indemnify such a person, and the
duty to indemnify turns on whether they were acting within the scope of
their employment. (Dkt. No. 15 at 10-11 (citing Wharton v. County of
Nassau, No. 10–CV–0265, 2013 WL 4851713, at *15 (E.D.N.Y. Sept. 10,
2013) and Bielski v. Green, 674 F. Supp. 2d 414, 428 (W.D.N.Y. 2009)).)
The court agrees with defendants that Bauer was acting within the scope
of her employment and that the County is required to indemnify her. (Dkt.
No. 43, Attach. 28 at 21.) Perez does not argue otherwise; to the contrary,
she argues that a notice of claim is not required for an NYSHRL claim
against an individual. (Dkt. No. 47, Attach. 13 at 14-16.) But Perez is
incorrect. The cases she cites do not involve the relevant notice of claim
provision—N.Y. County Law § 52—and are distinguishable.12 Defendants
are thus entitled to summary judgment on Perez’s sixth cause of action,
(Compl. ¶¶ 42-45), which is hereby dismissed.13
12

The same arguments that Perez makes have been explicitly rejected before. See
Jordan v. County of Chemung, 264 F. Supp. 3d 497, 524-25 & n.6 (W.D.N.Y. 2017).
13

To the extent that defendants argue for summary judgment based on the substance
of Perez’s sixth cause of action, (Dkt. No. 43, Attach. 28 at 22-23; Dkt. No. 49 at 7-8), and
Perez disagrees, (Dkt. No. 47, Attach. 13 at 16-17), the court need not and does not reach the

8

C.

ADEA Claim
To establish a prima facie case of age discrimination under the
ADEA, a claimant must demonstrate that: 1) he was within the
protected age group; 2) he was qualified for the position; 3) he
was subject to an adverse employment action; and 4) the adverse
action occurred under circumstances giving rise to an inference
of discrimination.

Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal quotation
marks and citation omitted). “Under McDonnell Douglas, the plaintiff bears
the initial burden of establishing a prima facie case of discrimination.”
Chapotkat v. County of Rockland, 605 F. App’x 24, 26 (2d Cir. 2015) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “If the
plaintiff meets that initial burden, the burden shifts to the defendant to
proffer some legitimate, nondiscriminatory reason for the challenged
action.” Chapotkat, 605 F. App’x at 26 (internal quotation marks and
citation omitted). “If the defendant does so, the burden shifts back to the
plaintiff to show that the defendant’s explanation is pretext for
discrimination.” Id. (internal citation omitted).
“At this third step in the analysis . . . the ADEA plaintiff must show
that age was a ‘but-for’ cause of the employer’s action.” Id. (quoting

issue.

9

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)). This
“is not equivalent to a requirement that age was the employer[’]s only
consideration, but rather that the adverse employment action[] would not
have occurred without it.” Delaney v. Bank of Am. Corp., 766 F.3d 163,
169 (2d Cir. 2014) (internal quotation marks and citation omitted). Age
cannot be just a contributing or motivating factor. See Gorzynski, 596 F.3d
at 106. “It is not enough for [a] plaintiff to prove defendants had ‘mixedmotives,’ only one of which was discriminatory.” Caesar v. Riverbay Corp.,
15 Civ. 8911, 2017 WL 6887597, at *7 (S.D.N.Y. Dec. 27, 2017) (citing
Gross v. FBL Fin. Servs., Inc., 577 U.S. 167, 180 (2009)). “Thus, to resist
summary judgment on an ADEA claim successfully, a plaintiff must
demonstrate that a reasonable jury could conclude by a preponderance of
the evidence that the employer’s explanations are pretextual and that, but
for the plaintiff’s age, the employer would not have taken the action it did.”
Chapotkat, 605 F. App’x at 26.
Defendants argue that Perez cannot make a prima facie showing of
age discrimination; there are legitimate, non-discriminatory reasons for the
promotions at issue; and Perez cannot establish that age was the but-for
cause of Wierzbicki’s failure to be promoted. (Dkt. No. 43, Attach. 28 at 910

13.) Perez argues that she has made a prima facie showing and
defendants’ legitimate, non-discriminatory reasons are mere pretext,
without addressing the but-for standard. (Dkt. No. 47, Attach. 13 at 11-12.)
For the reasons that follow, Perez has not met her burden of
demonstrating that a reasonable jury could conclude that but for
Wierzbicki’s age, defendants would have promoted him. See Chapotkat,
605 F. App’x at 26.
1.

Perez’s Prima Facie Case of Age Discrimination

Perez correctly notes that her burden of establishing a prima facie
case is de minimis. (Dkt. No. 47, Attach. 13 at 7, 12); see Mendillo v.
Prudential Ins. Co. of Am., 156 F. Supp. 3d 317, 338 (D. Conn. 2016).
However, Perez sets forth very little evidence that “the adverse action
occurred under circumstances giving rise to an inference of discrimination.”
Terry, 336 F.3d at 138 (internal quotation marks and citation omitted).14
The evidence of age discrimination that Perez provides consists almost
entirely of Wierzbicki’s affirmation, (Dkt. No. 47, Attach. 12), the crux of
which is that eight employees younger than Wierzbicki—each one at least

14

Defendants do not contest that Perez establishes the first three elements of her
prima facie case. (Dkt. No. 43, Attach. 28 at 9-13); see Terry, 336 F.3d at 137-38.

11

nine years younger15—were promoted to positions for which he
interviewed.16 (Id. ¶ 9.) As described more fully below, there is nothing in
the remainder of Perez’s evidence from which to infer age discrimination.
See infra Part IV.C.3. However, the fact that defendants promoted a
significantly younger employee17 instead of Wierzbicki eight different times
establishes Perez’s prima facie case. The Second Circuit “has recognized
that replacement by a significantly younger employee can give rise to an
inference of discrimination[.]” McGuire-Welch v. House of the Good
Shepherd, 720 F. App’x 58, 61 (2d Cir. 2018) (citing Carlton v. Mystic
Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000)). The fact that a younger
employee did not replace Wierzbicki but rather was promoted instead of

15

The eight younger employees are Franz (twelve years younger), Miner (twelve
years), Liberty (fourteen years), Hansen (eleven years), Wohlleber (eighteen years), Mahoney
(eighteen years), Zido (thirteen years), and Miazga (nine years). (Dkt. No. 47, Attach. 12 ¶ 9);
see supra Part II.A. Wierzbicki affirmed that a ninth employee, Dana Bliley, was promoted
over him, but Perez does not indicate her age. (Dkt. No. 47, Attach. 12 ¶ 9.)
16

Perez provided an exhibit that lists the various promotions and the candidates
considered. (Dkt. No. 47, Attach. 4.) Perez does not have a timely claim for promotions prior
to January 26, 2013. (Dkt. No. 15 at 7-8.) However, such promotions constitute relevant
background evidence. (Id.)
17

Defendants argue that there is no inference of age discrimination because a majority
of those promoted were at least forty years old, and those that were not were almost forty
years old. (Dkt. No. 43, Attach. 28 at 10-11.) The ADEA protects those who are at least forty
years old. See 29 U.S.C. § 631(a). But “an employer’s decision to replace an older worker
with a significantly younger one can support an inference of intentional age discrimination even
when both persons are ADEA class members.” Woodman v. WWOR-TV, Inc., 411 F.3d 69,
78-79 (2d Cir. 2005).

12

him does not change this analysis, especially because it happened eight
times. See Witkowich v. Gonzales, 541 F. Supp. 2d 572, 579 (S.D.N.Y.
2008) (holding fact that promotion went to someone fourteen years
younger than plaintiff raises an inference of discrimination) (collecting
cases).
2.

Defendants’ Legitimate, Nondiscriminatory Reasons

In the face of Perez’s prima facie case of age discrimination, the
burden shifts to defendants to proffer a legitimate, nondiscriminatory
reason for not promoting Wierzbicki. See Chapotkat, 605 F. App’x at 26.
As explained by defendants, (Dkt. No. 43, Attach. 28 at 11-13), Bauer gave
detailed testimony explaining why she selected the employees who were
promoted instead of Wierzbicki, which had nothing to do with age. She
emphasized leadership qualities, what the candidate wanted to bring to the
position, and their relationship with those that the department works with,
such as courts. (Dkt. No. 43, Attach. 25 at 8-9.) For example, Dan
Mahoney was seen as a leader by his peers, held probation training at
area colleges, volunteered to have interns under his supervision, and was
thought to be the best in terms of outreach outside the department. (Id. at
44.) Wierzbicki, on the other hand, lacked leadership skills, (id. at 30, 56),
13

pertinent expertise, (id. at 56), and a pertinent certification, (id. at 36); was
perceived as unprofessional by courts, (id. at 44-45); and during one
interview came unprepared and asked what the position was, (id. at 585918). Wierzbicki also admitted that the use of technology was his greatest
weakness. (Defs.’ SMF ¶ 15.) Defendants have met their burden. See
Byrnie v. Town of Cromwell, 243 F.3d 93, 102 (2d Cir. 2001) (holding
burden met where candidate “performed better than [plaintiff]
during . . . interviews and thus seemed, based on subjective criteria, the
better qualified candidate”); Witkowich, 541 F. Supp. 2d at 579-80.
3.

Perez’s Burden to Demonstrate But-For Causation

Perez cannot meet her burden of demonstrating that a reasonable
jury could conclude that, but for Wierzbicki’s age, defendants would have
promoted him. See Chapotkat, 605 F. App’x at 26.
Although the fact that eight significantly younger employees were
promoted over Wierzbicki establishes a prima facie case, that alone does
not suffice to demonstrate but-for pretext. Cf. James v. N.Y. Racing Ass’n,
18

Perez’s argument that Bauer concealed information about promotions to Wierzbicki
but gave information to female candidates, (Dkt. No. 47, Attach. 13 at 8), is not supported by
the record. And, even if it was, that would go to Perez’s gender discrimination claim but not
her age claim. Moreover, Perez is wrong that defendants claim that Wierzbicki came
unprepared to a 2012 interview. (Id.) Bauer specifically testified that it was a 2015 interview,
(Dkt. No. 43, Attach. 25 at 58-59), and Perez offers no evidence to the contrary.

14

76 F. Supp. 2d 250, 255-56 (E.D.N.Y. 1999), aff’d, 233 F.3d 149 (2d Cir.
2000). “‘That several younger persons were offered a position while
plaintiff was not is merely circumstantial, statistical evidence which alone,
though supportive of an inference of discrimination, is an insufficient basis
upon which to prove discrimination.’” Charrette v. S.M. Flickinger Co., 806
F. Supp. 1045, 1061 (N.D.N.Y. 1992) (quoting Diamantopulos v. Brookside
Corp., 683 F. Supp. 322, 329 (D. Conn. 1988)); see Fagan v. N.Y. State
Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999).
Considered cumulatively, as it must be at this stage, Perez’s
evidence is insufficient to defeat summary judgment. See Witkowich, 541
F. Supp. 2d at 589-90. Wierzbicki affirmed that he “requested training
updates in different areas so that [he] would be more eligible for
promotions” but was told by Bauer that the training was unavailable. (Dkt.
No. 47, Attach. 12 ¶ 4.) He also affirmed that “[l]ater, younger female
employees who were given training were promoted over [him.]” (Id.) But
nowhere is it alleged that any training was unavailable to Wierzbicki
because of anything having to do with his age, or that the training given to
younger female employees was the same training that he requested, or
that any younger male employees also received such training. (See
15

generally Dkt. No. 47, Attach. 12.) Indeed, Perez fails to offer any
specifics, such as the type of training, how it would have helped Wierzbicki
be more eligible for promotions, or any sort of time frame in relation to the
promotions at issue. See Diello v. Potter, 413 F. App’x 344, 346 (2d Cir.
2011) (“[A] motion for summary judgment may not be defeated ‘by offering
purely conclusory allegations of discrimination, absent any concrete
particulars.’”) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
Such conclusory, vague statements exemplify the rest of Wierzbicki’s
affirmation.19 For example, he affirmed that “[n]umerous older employees,
including [Janice] Bell and Robert Sportman, left the Probation Department
because of Ms. Bauer’s disparate treatment of employees.” (Dkt. No. 47,
Attach. 12 ¶ 8.) But Perez fails to explain how they suffered age
discrimination or even offer the age of Sportman. See Brenner v. City of
N.Y. Dep’t of Educ., 132 F. Supp. 3d 407, 419 n.2 (E.D.N.Y. 2015), aff’d,
659 F. App’x 52 (2d Cir. 2016) (disregarding conclusory assertions that
former colleagues were replaced by younger employees where no detail or

19

Wierzbicki’s affirmation also includes a statement that is based “[u]pon information
and belief,” (Dkt. No. 47, Attach. 12 ¶ 19), which does not satisfy Rule 56’s requirement that
affidavits be made on personal knowledge. See Patterson v. County of Oneida, 375 F.3d 206,
219 (2d Cir. 2004).

16

evidence offered). Similarly, Wierzbicki affirmed that he “observed other
older male employees who were similarly passed over for promotions,” but
the ages are not given for the older employees or those that were
promoted over them. (Dkt. No. 47, Attach. 12 ¶ 19.)20
Perez also offers the affirmations of Janice Bell and Joseph
Comiskey, former colleagues of Wierzbicki. (Dkt. No. 47, Attachs. 10, 11.)
Even if these affirmations are admissible,21 they merely offer opinions
regarding Wierzbicki’s qualifications and have very little, if any, probative
value. See Brenner, 132 F. Supp. 3d at 419 (holding co-worker affidavits
attesting to skill of plaintiff not appropriately considered on summary
judgment).22 Indeed, Comiskey’s affirmation cuts against Perez’s claim by

20

Also of note is the fact that Wierzbicki affirmed that Dana Bliley was promoted over
him, (Dkt. No. 47, Attach. 12 ¶ 9), but Perez does not indicate her age. Richard Scott and
Colleen Burns were also promoted over Wierzbicki, (Dkt. No. 47, Attach. 4 at 1, 3), but Perez
does not provide their ages. It is possible that Bliley, Scott, and Burns were not significantly
younger than Wierzbicki—and they may have been older—which would vitiate Perez’s
argument that “every single employee who received a promotion over [Wierzbicki] was
younger by [nine] years or more.” (Dkt. No. 47, Attach. 13 at 12.) The court notes that
defendants assert that Burns was only three years younger than Wierzbicki, (Dkt. No. 43,
Attach. 28 at 10), but the page number provided is not within the exhibit they cite.
21

Although Perez’s allegations regarding promotions prior to January 26, 2013
constitute relevant background evidence, (see supra note 15), the fact that Bell retired in 2012,
(Dkt. No. 47, Attach. 10 ¶ 1), and Comiskey retired in 2010, (Dkt. No. 47, Attach. 11 ¶ 1), limit
any probative value and arguably raise issues such as personal knowledge and relevancy.
22

Bell affirmed that “[o]lder employees who had been around a while were passed over
for promotions” and that one of the most senior members of the DWI unit was passed over for
promotion. (Dkt. No. 47, Attach. 10 ¶ 7.) As with Wierzbicki’s affirmation, conclusory

17

noting that, during Comiskey’s participation in interviews, Bauer accepted
feedback from senior staff. (Dkt. No. 47, Attach. 11 ¶ 6.)
Perez alleges no ageist comments or actions by anyone.23 See Baur
v. Rosenberg, Minc, Falkoff & Wolff, No. 07 Civ. 8834, 2008 WL 5110976,
at *5 (S.D.N.Y. Dec. 2, 2008); Altman v. N.Y.C. Dep’t of Educ., No. 06 CV
6319, 2007 WL 1290599, at *5 (S.D.N.Y. May 1, 2007). She also fails to
set forth any evidence that Bauer even knew, let alone considered,
Wierzbicki’s age, the ages of anyone promoted, or their ages relative to
each other. See Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 317 (2d
Cir. 1999).24 This is the type of evidence that is needed to defeat summary
judgment. See Friedman v. Swiss Re Am. Holding Corp., 643 F. App’x 69,
72 (2d Cir. 2016).
Perez also argues that Wierzbicki was better qualified—including

assertions such as these, lacking any detail, are disregarded. See Brenner, 132 F. Supp. 3d
at 419 n.2.
23

Wierzbicki’s affirmation describes how his supervisor, Sonia Loomis, and Bauer
treated him negatively. (Dkt. No. 47, Attach. 12 ¶¶ 5-8.) But he offers no details or evidence
whatsoever that this was in any way related to his age, except for a conclusory assertion. (Id.)
24

Moreover, the fact that Bauer herself was older than Wierzbicki weakens Perez’s age
discrimination claim. (Compare Defs.’ SMF ¶ 38 (stating Bauer was fifty-eight years old as of
Aug. 31, 2016), with Dkt. No. 47, Attach. 12 ¶ 2 (affirming Wierzbicki was fifty-seven years old
as of Oct. 3, 2016)); see Mathews v. Huntington, 499 F. Supp. 2d 258, 267 (E.D.N.Y. 2007).

18

having more experience, seniority, and higher test scores25—than those
that were promoted instead. (Dkt. No. 47, Attach. 13 at 3-4.) But
defendants have set forth why those promoted were better suited, and why
Wierzbicki was a weaker candidate. See supra Part IV.C.2. The court
“must respect the employer’s unfettered discretion to choose among
qualified candidates” and is “not to act as a super personnel department
that second guesses employers’ business judgments.” Byrnie, 243 F.3d at
103 (internal quotation marks and citations omitted).26 Perez’s
disagreement with the way in which defendants weighed Wierzbicki’s and
the other candidates’ qualifications does not create an issue of material
fact. See Concepcion v. City of New York, 15 Civ. 2156, 2016 WL 386099,
at *14 (S.D.N.Y. Jan. 29, 2016), aff’d, 693 F. App’x 31 (2d Cir. 2017);

25

Regarding the Civil Service Certification of Eligibles list dated July 31, 2013,
Wierzbicki had the highest final exam rating. (Defs.’ SMF ¶¶ 7-8.) However, as defendants
argue, obtaining a certain score on a Civil Service examination only confers the opportunity to
be fairly considered for the position. (Dkt. No. 43, Attach. 28 at 16-17); see Cassidy v. Mun.
Civil Serv. Comm’n of City of New Rochelle, 37 N.Y.2d 526, 528-29 (1975). Also, Wierzbicki
did not have the highest score on the Civil Service examinations for probation supervisor or
senior probation officer after 2013. (Defs.’ SMF ¶ 32.)
26

Perez’s quotation of Byrnie is misleading. (Dkt. No. 47, Attach. 13 at 8-9 (quoting
Byrnie, 243 F.3d at 105).) The quoted portion refers to a factually-distinguishable case from
the Eighth Circuit in which the employer’s explanation was undermined by facts in the record
that are not present here. See Byrnie, 243 F.3d at 105 (citing Widoe v. Dist. No. 111 Otoe
Cty. Sch., 147 F.3d 726, 730 (8th Cir. 1998)).

19

Witkowich, 541 F. Supp. 2d at 582.27
Perez can use a discrepancy between Wierzbicki’s qualifications and
those of someone promoted to defeat summary judgment if Wierzbicki’s
“credentials [were] so superior . . . that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected
over [Wierzbicki] for the job in question.” Byrnie, 243 F.3d at 103 (internal
quotation marks and citation omitted); see Witkowich, 541 F. Supp. 2d at
583. But Perez has not met this “weighty burden.” Byrnie, 243 F.3d at
103. In light of all of the evidence that defendants have presented, a
reasonable person could conclude that those promoted were more
qualified than Wierzbicki.28
The Second Circuit has noted that “an extra measure of caution is

27

Witkowich is very similar to this case. As here, the plaintiff made out a prima facie
case of age discrimination based on the fact that a promotion went to someone significantly
younger. See Witkowich, 541 F. Supp. 2d at 579. And, as in our case, the defendants offered
legitimate, nondiscriminatory reasons for promoting the younger employee instead of the
plaintiff. Id. at 579-80. Like here, the plaintiff made arguments that he was more experienced
and more qualified for the promotion, id. at 580-83, and offered other incidents in which he
was passed over for promotion by significantly younger candidates as background evidence,
id. at 588. Not only did the Witkowich court grant summary judgment against the plaintiff, id.
at 590, it did so under a less-exacting standard than the current but-for standard, id. at 580.
28

Perez’s evidence of Wierzbicki’s greater seniority and experience (and, sometimes,
test scores) retains its probative value in conjunction with all of her other evidence. See
Witkowich, F. Supp. 2d at 583. But, given defendants’ explanation as to why other candidates
were better qualified and Wierzbicki’s shortcomings, it has limited probative value. See id. at
588 (“[E]xperience is just one of many factors considered in the . . . promotion process[.]”)

20

merited in affirming summary judgment in a discrimination action because
direct evidence of discriminatory intent is rare and such intent often must
be inferred from circumstantial evidence found in affidavits and
depositions.” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001).
“Nonetheless, summary judgment remains available for the dismissal of
discrimination claims in cases lacking genuine issues of material fact.” Id.
(internal quotation marks and citation omitted). That is the case here.
Perez’s age discrimination claim essentially boils down to a faulty
syllogism: Wierzbicki was not promoted; Wierzbicki was significantly older
than a number of those promoted; therefore Wierzbicki must not have been
promoted because of his age. See House v. Wackenhut Servs., Inc., No.
10 Civ. 9476, 2012 WL 4017334, at *1 (S.D.N.Y. Aug. 20, 2012). In sum,
Perez’s evidence is insufficient to create a genuine dispute as to whether
age was a but-for cause of defendants not promoting Wierzbicki. See Dent
v. U.S. Tennis Ass’n, No. 08 CV 1533, 2011 WL 308417, at *8 (E.D.N.Y.
Jan. 27, 2011).29

29

As “‘[c]laims of age-based discrimination under the NYSHRL are analyzed under the
same standard as discrimination claims brought under the ADEA,’” (Dkt. No. 47, Attach. 13 at
11 (quoting Powell v. Delta Airlines, 145 F. Supp. 3d 189, 198 (E.D.N.Y. 2015))), this provides
another basis for dismissing Perez’s NYSHRL age discrimination claim against Bauer in her
individual capacity.

21

D.

Title VII Claim
[T]o establish a claim of racial or gender discrimination under Title
VII, a claimant must show that: 1) he belonged to a protected
class; 2) he was qualified for the position; 3) he suffered an
adverse employment action; and 4) the adverse employment
action occurred under circumstances giving rise to an inference
of discriminatory intent.

Terry, 336 F.3d at 138. As with her ADEA claim, the McDonnell Douglas
burden-shifting analysis applies to Perez’s Title VII gender discrimination
claim. Id. However, for her Title VII claim, the third step of the analysis is
not but-for causation. Perez’s burden at that point is to produce “evidence
. . . show[ing] circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant’s employment decision was more
likely than not based in whole or in part on discrimination.” Walsh v.
N.Y.C. Housing Auth., 828 F.3d 70, 75 (2d Cir. 2016) (internal quotation
marks and citation omitted). Perez “‘is not required to show that the
employer’s proffered reasons were false or played no role in the
employment decision, but only that they were not the only reasons and that
the prohibited factor was at least one of the “motivating” factors.’” Edwards
v. Khalil, 12 Civ. 8442, 2016 WL 1312149, at *17 (S.D.N.Y. Mar. 31, 2016)
(quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)).

22

“This is a lower standard and easier . . . to meet than the ‘but-for’ causation
standard.” Edwards, 2016 WL 1312149, at *29; see McAllister v. Quik
Park, 661 F. App’x 61, 63 (2d Cir. 2016).
1.

Perez's Prima Facie Case of Gender Discrimination

Defendants contest that the failure to promote Wierzbicki occurred
under circumstances giving rise to an inference of discriminatory intent.30
(Dkt. No. 43, Attach. 28 at 13-18.) But Perez’s burden of establishing a
prima facie case is de minimis. See Swihart v. Pactiv Corp., 187 F. Supp.
2d 18, 24. Wierzbicki’s affirmation that, from 2009 to 2015, all seven
promotions to supervisor positions were given to women, (Dkt. No. 47,
Attach. 12 ¶ 10; Attach. 4), which defendants do not contest,31 satisfies this
burden. See Dimino v. HSBC Bank, USA N.A., No. 11 Civ. 4189, 2012 WL
1202035, at *3 (S.D.N.Y. Apr. 11, 2012) (holding fact that all managerial or
leadership positions were given to women and not men establishes
inference of discrimination); Tierney v. City of New York, No. 02 Civ. 2403,
2007 WL 895133, at *25 (S.D.N.Y. Mar. 20, 2007) (“[A]n inference of
30

Defendants do not contest that Perez establishes the first three elements of her
prima facie case. (Dkt. No. 43, Attach. 28 at 13-18); see Terry, 336 F.3d at 138.
31

To the extent that defendants argue that “claims prior to 2013 have been dismissed
as a matter of law as time barred,” (Dkt. No. 49 at 4), promotions prior to 2013 constitute
relevant background evidence, (see supra note 15).

23

discrimination sufficient to make out the prima facie case is made when the
job benefit or position is awarded to someone outside the protected class.”)
2.

Defendants’ Legitimate, Nondiscriminatory Reasons

As described above, see supra Part IV.C.2, defendants have met their
burden of proffering a legitimate, nondiscriminatory reason for not promoting
Wierzbicki. See Chapotkat, 605 F. App’x at 26.
3.

Perez’s Burden to Demonstrate Pretext

Although a very close call, the evidence as a whole, construed in the
light most favorable to Perez for purposes of this motion, provides a
sufficient basis for a reasonable jury to conclude that defendants’
explanation for failing to promote Wierzbicki is pretext for gender
discrimination. From 2009 to 2015, in addition to the fact that all seven
promotions to supervisor positions were given to women, overall, only
three promotions out of seventeen were given to males. (Dkt. No. 47,
Attach. 13 at 9-10; Attach. 4.) Defendants attack Perez’s use of statistics,
(Dkt. No. 49 at 4-5), but “in an individual employment discrimination
case . . . statistical evidence is relevant and admissible.” Jhirad v. T.D
Sec. USA, Inc., No. 02 Civ.7509, 2003 WL 1872654, at *2 (S.D.N.Y. Apr.
10, 2003); see Forte v. Liquidnet Holdings, Inc., No. 14 Civ. 2185, 2015
24

WL 5820976, at *6 (S.D.N.Y. Sept. 30, 2015), aff’d, 675 F. App’x 21 (2d
Cir. 2017).32
The rest of Perez’s evidence is thin,33 but when combined with her
statistical evidence, it is sufficient to demonstrate pretext. See Dimino,
2012 WL 1202035, at *4 (denying summary judgment where plaintiff
provided “evidence, albeit weak evidence, from which a jury might find that
he was not promoted due to gender discrimination,” including that “only
females were given management positions”). Bauer admitted that she did
not consider Wierzbicki’s time and experience in the DWI unit when
assessing his ability to receive a promotion, (Dkt. No. 43, Attach. 25 at 43),

32

Defendants’ argument that statistics must be “statistically significant” relies on a
distinguishable case that involved a pattern or practice disparate treatment claim. (Dkt. No. 49
at 4 (quoting Wright v. Stern, 450 F. Supp. 2d 335, 363 (S.D.N.Y. 2006)).) Moreover,
considerations such as a small sample size may detract from the weight to be given to such
evidence, see Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977), but not
its admissibility. Finally, defendants’ argument that 68% of the office is female, (Dkt. No. 49 at
5 n.2), cites an exhibit comprised of hundreds of pages without specifying which page(s)
demonstrate(s) that fact. See Prive v. Johnson, No. 5:04–CV–1024, 2010 WL 3338810, at *2
(N.D.N.Y. Aug. 23, 2010) (declining to scour the record for evidence based on the volume of
the record).
33

Some of Perez’s proffered evidence is weak, not probative, or offered for a
proposition that is inaccurate. For example, as noted above, Perez’s argument that Bauer
concealed information about promotions to Wierzbicki but gave information to female
candidates, (Dkt. No. 47, Attach. 13 at 8), is not supported by the record. See supra note 17.
Also, Wierzbicki’s affirmation that younger female employees were given training is not
persuasive, as explained above. See Part IV.C.3. Additionally, Wierzbicki’s affirmation that he
was mistreated by Bauer and Loomis, (Dkt. No. 47, Attach. 12 ¶¶ 5-8), only implies gender
discrimination, and his admission that Bell, a female, was also mistreated by Loomis, (id. ¶ 8),
undercuts what is already a weak implication.

25

and that she did not read the County Personnel Policy Manual for
purposes of hiring or promoting, (id. at 85). Also, the subjectivity of
Bauer’s promotion process might be considered as indicating
discrimination. See Martinez v. N.Y.C. Transit Auth., 672 F. App’x 68, 7172 (2d Cir. 2016) (citing Sweeney v. Research Found. of State Univ. of
N.Y., 711 F.2d 1179, 1185 (2d Cir. 1983)).

E.

Section 1983 Claims
Perez’s Section 1983 claim regarding age discrimination, (Compl.

¶¶ 35-38), is dismissed for the same reasons that her ADEA claim is
dismissed. See supra Part IV.C; Zuk v. Onondaga County, No.
5:09–CV–0272, 2011 WL 4344043, at *11 (N.D.N.Y. Sept. 14, 2011)
(noting Section 1983 age discrimination claims analyzed under same
standards as ADEA claims); Shapiro v. N.Y.C. Dep’t of Educ., 561 F.
Supp. 2d 413, 422 n.2 (S.D.N.Y. 2008) (same).
Defendants argue that Perez’s Section 1983 gender discrimination
claim should be dismissed because Perez does not identify any official
policy or custom that denied Wierzbicki any of the promotions at issue.
(Dkt. No. 43, Attach. 28 at 18-19.) But the court agrees with Perez that
26

“recurring violations with respect to [a] single employee over time” can
demonstrate an accepted custom or practice. (Dkt. No. 47, Attach. 13 at
13-14 (quoting Sullivan v. N.Y.C. Dep’t of Investigation, No. 12 Civ. 2564,
2013 WL 639142, at *5 (S.D.N.Y. Feb. 21, 2013)).) Defendants’ cursory
argument in response, (Dkt. No. 49 at 6), does not address this point, and
they have failed to demonstrate their entitlement to summary judgment on
this claim.34
F.

Constructive Discharge
Perez argues in her response that Wierzbicki suffered a constructive

discharge. (Dkt. No. 47, Attach. 13 at 7.) However, there is no claim for
constructive discharge in her complaint. (See generally Compl.) As Perez
has not brought a constructive discharge claim,35 there is no need to
address such a claim.

34

Defendants argue that “P[erez] simply claims that Bauer is a final policy-maker and,
through her actions, created a custom, policy, or practice of . . . sex discrimination in both
hiring and promotions.” (Dkt. No. 43, Attach. 28 at 19.) Although the burden of demonstrating
that Bauer was a final policymaker will rest with Perez, “on summary judgment, defendants
have failed to show the absence of a genuine issue of fact regarding” Bauer’s policymaking
authority. Media All., Inc. v. Mirch, No. 1:09–CV–0659, 2011 WL 3328532, at *12 (N.D.N.Y.
Aug. 2, 2011). Summary judgment is inappropriate on this basis because neither party
submitted evidence as to Bauer’s final policymaking authority, and more information is needed
before a final determination can be made on this issue. See Capasso v. Metro. Transp. Auth.
of State of N.Y., 198 F. Supp. 2d 452, 464 (S.D.N.Y. 2002) (collecting cases).
35

Nor did Perez seek to amend her complaint, despite requesting and receiving an
extension of the deadline for amendment. (Dkt. Nos. 28, 31.)

27

V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgement (Dkt. No.
43) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to Perez’s claims against Doe defendants,
(Compl. ¶ 9); NYSHRL claims against Bauer in her individual
capacity, (id. ¶¶ 42-45); ADEA claim, (id. ¶¶ 28-30); and
Section 1983 age discrimination claim, (id. ¶¶ 35-38); and
DENIED in all other respects; and it is further
ORDERED that the Clerk terminate the Doe defendants from this
action; and is further
ORDERED that this case is now deemed trial-ready and a trial
scheduling order will be issued in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 13, 2018
Albany, New York

28