Salmassi v. Metropolitan Transit Authority/ New York City Transit Authority et al

Filing 79

OPINION & ORDER re: (43 in 1:12-cv-02760-PAC) MOTION for Summary Judgment . filed by Sally Librera, Metropolitan Transit Authority/ New York City Transit Authority, (45 in 1:12-cv-02665-PAC) MOTION for Summary Judgment . fi led by Sidney Gellineau, New York City Transit Authority, (47 in 1:11-cv-04038-PAC) MOTION for Summary Judgment . filed by Sidney Gellineau, Metropolitan Transit Authority/ New York City Transit Authority, (42 in 1:12-cv-02103-PAC) MOTION for Summary Judgment . filed by Sidney Gellineau, New York City Transit Authority, (42 in 1:12-cv-02667-PAC) MOTION for Summary Judgment . filed by Mallick Sohaib, Metropolitan Transit Authority, New York City Tran sit Authority, (42 in 1:12-cv-02102-PAC) MOTION for Summary Judgment . filed by MTA/New York City Transit Authority, New York City Transit Authority, Sarah Librera. Defendants' Motions for Summary Judgment are GRANTED with respect to Plaintiffs' ADEA claims. The Clerk of Court is directed to enter judgment and close these cases. (As further set forth in this Order) (Signed by Judge Paul A. Crotty on 9/3/2015) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
ROSETTA KIRKLAND,
:
Plaintiff,
:
-against:
NEW YORK CITY TRANSIT AUTHORITY,
MTA/NEW YORK CITY TRANSIT
:
AUTHORITY, and SARAH LIBRERA,
:
Defendants.
--------------------------------------------------------------X
JUANA GUTIERREZ,
:
Plaintiff,
:
-against:
METROPOLITAN TRANSIT AUTHORITY/
NEW YORK CITY TRANSIT AUTHORITY
:
and SALLY LIBRERA,
:
Defendants.
--------------------------------------------------------------X
SOOSSAN SALMASSI,
:
Plaintiff,
:
-against:
METROPOLITAN TRANSIT AUTHORITY/
NEW YORK CITY TRANSIT AUTHORITY
:
and SIDNEY GELLINEAU,
:
Defendants.
--------------------------------------------------------------X

1

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 3, 2015

12-cv-2102 (PAC)

12-cv-2760 (PAC)

11-cv-4038 (PAC)

--------------------------------------------------------------X
CHARLES THIGPEN,
:
Plaintiff,
:
-against:
NEW YORK CITY TRANSIT AUTHORITY
and SIDNEY GELLINEAU,
:
Defendants.
:
--------------------------------------------------------------X
MARIA MARTINEZ, as Executor of the Estate
:
of Oscar Martinez,
:
Plaintiff,
:
-against:
NEW YORK CITY TRANSIT AUTHORITY
and SIDNEY GELLINEAU,
:
Defendants.
:
--------------------------------------------------------------X
DEBORAH ENGLISH,
:
Plaintiff,
:
-against:
METROPOLITAN TRANSIT AUTHORITY/
NEW YORK CITY TRANSIT AUTHORITY
:
and MALLICK SOHAIB,
:
Defendants.
--------------------------------------------------------------X

12-cv-2103 (PAC)

12-cv-2665 (PAC)

12-cv-2667 (PAC)

OPINION & ORDER

HONORABLE PAUL A. CROTTY, United States District Judge:
Plaintiffs Rosetta Kirkland, Juana Gutierrez, Soossan Salmassi, Charles Thigpen, Maria
Martinez1, and Deborah English had their employment terminated as part of a reduction in force
(“RIF”) at Defendants New York City Transit Authority (“NYCTA”) and Metropolitan Transit

1

Maria Martinez is the named Plaintiff as executor of the estate of Oscar Martinez.

2

Authority/New York City Transit Authority. They allege that the two Authorities, together with
Sally Librera,2 Sidney Gellineau, and Sohaib Mallick3, discriminated against them on the basis of
their age, in violation of the Age Discrimination in Employment Act (“ADEA”), New York State
Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”).4
Defendants move for summary judgment.
Defendants’ Motions for Summary Judgment are GRANTED. Plaintiffs have failed to
provide evidence from which a reasonable jury could conclude that Plaintiffs’ ages were a “butfor” cause of their employment termination.
BACKGROUND
Plaintiffs Kirkland, Gutierrez, Martinez, and English are former employees of the
Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”), a statutory subsidiary
of the NYCTA. Plaintiff Salmassi is a former employee of the NYCTA.5 Kirkland and
Gutierrez were employed in the secretary/occupational unit, while Martinez, Thigpen, English,
and Salmassi were employed in three different units of the Division of Technology Information
Services (“TIS”).

2

Defendant Sally Librera is incorrectly identified in Plaintiff Kirkland’s Complaint as “Sarah” Librera. See
Kirkland Compl. ¶ 12.
3
Sohaib Mallick is incorrectly identified in Plaintiff English’s Complaint as “Mallick Sohaib.” See English Compl.
¶ 13.
4
In their Complaints, Plaintiffs also asserted claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §
1981, as well as additional NYSHRL and NYCHRL claims. Thigpen asserted race discrimination claims, Martinez
asserted national origin discrimination and hostile work environment claims, and all Plaintiffs asserted retaliation
claims. In their Opposition to Defendants’ Motions for Summary Judgment, however, Plaintiffs withdrew all claims
except for their age-based ADEA, NYSHRL, and NYCHRL claims. “These are age discrimination cases.” Opp.
Mtn. 1 n.1.
5
Defendants assert that Kirkland, Gutierrez, Martinez, Thigpen, and English have improperly sued the NYCTA,
because the MaBSTOA is a separate legal entity from the NYCTA. Defendants have agreed to substitute
MaBSTOA as a defendant for those Plaintiffs. Mtn. at 1 n.1. Plaintiffs, on the other hand, assert that their “work
was not just for Surface Transit . . . but was also for subways,” and state that “[t]he termination of [P]laintiff[s] was
based on decisions made by, and under the operating budget of” the NYCTA. See, e.g., Def. Stmt. (English) ¶ 2.
Plaintiffs “agree to add the [MaBSTOA], in addition to the [NYCTA], as a defendant.” Id.

3

I.

Budget Crisis and Reduction in Force
In 2008, the NYCTA faced a severe budget crisis, which worsened over the next two

years. Def. Stmt. (English) ¶ 226. The budget deficit in 2009 was approximately $350 million,
and it was projected to grow to $890 million by spring 2010.7 Id. In response to the budget
crisis, the NYCTA implemented a budget reduction plan. A hiring and promotional freeze was
instituted in April 2008 for all non-operating positions, and was extended in 2009 to include all
operating positions. Id. ¶ 25. Subsequently, on February 23, 2010, NYCTA President Thomas
Prendergast announced that the NYCTA would reduce its administrative staff by 15%,
specifically targeting managerial, professional, and clerical staff. Id. at ¶ 26. To help meet the
15% reduction target, in March 2010, the NYCTA authorized a voluntary severance program for
administrative employees. Id. ¶ 33. While 167 employees resigned or retired voluntarily, this
was not sufficient to meet the 15% reduction target. Id.
In May 2010, the NYCTA Office of Management and Budget (“OMB”) conducted an
analysis of administrative staffing levels, and “identified the number of excess employees by title
group within each department that would be subject to layoffs.” Id. ¶ 34. OMB then informed
the NYCTA and MaBSTOA of the number of employees in each department that would need to
be laid off via a non-voluntary RIF. Id. ¶¶ 34, 36.
a. Clerical/Administrative Occupational Reductions
Pamela Noonan-Coppola, the Department of Subways (“Subways”) liaison to Human
Resources, directed the RIF evaluation process for Subways. Def. Stmt. (Kirkland) ¶ 82. There

6

References to Defendants’ Rule 56.1 Statements in Support of their Motions for Summary Judgment appear as
“Def. Stmt. ([Plaintiff]) ¶ __.” Plaintiffs’ responses to Defendants’ Rule 56.1 Statements are cited as “[Plaintiff]
Resp. ¶ __.”
7
Defendants assert that the budget deficit was caused in large part by the economic recession of 2008 and 2009,
because the NYCTA derives part of its operating budget from taxes imposed on property transfers, and the sale of
property declined dramatically in those years. Id. ¶ 20.

4

were 22 provisional and at-will employees in the Subways clerical/administrative occupational
group. Id. ¶ 87. In May and June 2010, Noonan-Coppola distributed to the supervisors of those
22 employees an instruction booklet prepared by human resources and modified by NoonanCoppola for use by Subways. Id. ¶¶ 88, 91. The booklet contained guidelines concerning how to
evaluate clerical/administrative employees. Id. ¶ 88. The guidelines included twelve categories:
“Education,” “Work-Related TA/OA8 Experience and External Experience,” “Output Quality,”
“Output Quantity,” “Computer Skills,” “Job Knowledge,” “Supervisory Skills,”
“Communications Skills,” “Analytical Skills,” “Initiative,” “Organizational Skills,” and
“Interpersonal Skills.” Id., Ex. I. Supervisors were instructed to evaluate each employee on a
scale from 1 to 8 for each category on an evaluation form provided by Noonan-Coppola. The
guidelines provided a short description of what each number from 1 to 8 represented when
applied to each category. Id.
The evaluation forms contained a numerical multiplier for each category, so that different
categories were weighted differently. For example, the “TA/OA Experience and External
Experience” category was multiplied by 6, while the “Computer Skills” category was multiplied
by 8.5. Id., Ex. J. The weighted scores for each category were then added to arrive at a total
score. At the time the supervisors performed the rankings, they did not know whether—or how
many—employees would be laid off. Id. ¶ 94.
i. Kirkland
Rosetta Kirkland began working at the NYCTA as a college aide in 1989, and worked in
the clerical/administrative group of the MaBSTOA from 1992 until she was laid off on

8

“TA/OA” stands for “Transit Authority/Operating Authority.”

5

September 17, 2010. Def. Stmt. (Kirkland) ¶¶ 7-8. From 2008 to 2010, Kirkland worked as a
clerical employee in the Office of Workforce Development. Compl. ¶¶ 13-14.
ii. Gutierrez
In 1981, Juana Gutierrez began working as an office clerk for the NYCTA, and in 1993
began employment as a confidential secretary in the clerical/administrative group of the
MaBSTOA. Def. Stmt. (Kirkland) 9 ¶¶ 15-16. Between 1996 and 2010, Gutierrez’s supervisor
was Walter Ruiter. Id. ¶ 21. Ruiter signed Gutierrez’s time sheets and prepared her evaluations.
Id. ¶ 22.
Gutierrez states that she would not have been terminated in the RIF process, had she
received a promotion that she had been promised. According to Gutierrez, her promotion had
been approved in November 2009 by Mark Hellman, and in December 2009 by human
resources. Gutierrez Decl. ¶¶ 37-38. Gutierrez asserts that she was assured that, notwithstanding
the hiring freeze, her promotion would go forward. Id. ¶ 41. Acting Assistant Vice President
Sally Librera and Vice President of Operations Support William Cronin, however, “stopped the
process and prevented [her] promotion from becoming effective, ensuring that [she] should be
left vulnerable to the RIF.” Id. ¶ 39.
Gutierrez also asserts that she had worked with Thomas Prendergast at the NYCTA in
1985, and when Prendergast returned as President of NYCTA in 2009, he said to her, “Boy, it is
amazing all the same faces I left behind.” Def. Stmt. (Kirkland) ¶ 151. In addition, Gutierrez
testified that, during a NYCTA meeting, Prendergast stated that he was “surprised to see so
many old faces.” Id. ¶ 152.

9

Defendants have combined the Rule 56.1 Statements for Plaintiffs Kirkland and Gutierrez into one document,
which the Court refers to as “Def. Stmt. (Kirkland)”.

6

Gutierrez also claims that in 2010, during a conversation with her colleague Karen
Jeffries, Jeffries stated that the NYCTA “want[s] to get rid of older employees. ‘Deadwood.’”
Id., Ex. V., at 63.
iii. Clerical/Administrative RIF Process
Kirkland’s RIF evaluation was prepared by Mark Hellman. Id. ¶ 96. Kirkland testified
that she believed that Hellman’s evaluation of her was “accurate,” that he had “evaluated [her]
fairly,” and that she did not believe her age had influenced Hellman’s evaluation. Id. ¶ 110.
Gutierrez was originally evaluated by Ruiter. Id. ¶ 96. During the ranking process,
however, Librera was informed that Ruiter and Gutierrez had a landlord-tenant relationship. Id.
¶ 120. Gutierrez was therefore instructed to report to Julio Vidal, rather than to Ruiter.10 Id. ¶
121. Following this transfer, Vidal prepared a new RIF evaluation for Gutierrez, in which she
scored three points higher than she had scored on Ruiter’s evaluation. Id. ¶ 127. Gutierrez stated
that she believed Librera discriminated against her during the RIF process because Librera was
“the head of the department” and “made the decisions.” Id. ¶ 154.
Twenty-two clerical employees in Kirkland and Gutierrez’s group were ranked; the
twelve with the lowest scores were slated for layoffs. Id. ¶ 102. Kirkland was ranked thirteenth
out of twenty-two, and Gutierrez was ranked fifteenth. Id. At the time of the rankings, Kirkland
was 40 years old and Gutierrez was 49. Of the twelve employees who were laid off, seven were
younger than Gutierrez (ages 28, 30, 34, 37, 40, 40, and 45), five were younger than Kirkland,
and one was the same age as Kirkland. Id. ¶ 105. Ten employees were not laid off; six of those

10

The Special Investigations and Review committee subsequently conducted an investigation into whether Ruiter’s
and Gutierrez’s landlord-tenant relationship violated the NYCTA Code of Ethics. During the investigation,
Gutierrez admitted that Ruiter was her tenant, but did not reveal that she and Ruiter had actually married on March
23, 2010. Id. ¶¶ 118, 122-24.

7

employees were older than Kirkland (60, 58, 55, 55, 45, and 41), and four were older than
Gutierrez. The average age before and after the terminations remained the same. Id. ¶ 106.
Kirkland and Gutierrez were both notified of their terminations on July 16, 2010. Id. ¶ 4.
Neither accepts that the RIF process was neutral and objective. Instead, Kirkland asserts that in
June or July 2010, she had a conversation with her NYCTA colleague Laura Turso. Turso told
Kirkland that Librera had attended a meeting with Cronin and Senior Vice President Carmen
Bianco, where they had discussed the need for “‘young blood’ to ‘start a program.’” Def. Stmt.
(Kirkland) Ex. S, at 104-06. Kirkland did not know what the “new program” was, or whether it
was ever implemented. Id., Ex. 5, at 108. At her deposition, Librera testified that Turso was
likely referring to a meeting at which Bianco, Cronin, Turso, and Librera discussed strategies to
improve internal communication with employees, including “interactive” communication “that
would be closer to social media.” Id. ¶ 137.
Kirkland testified that after she was terminated, her job responsibilities were transferred
to Turso and Mike Newell, another employee in her unit. Id. ¶ 140.
Gutierrez testified that in August 2010, a month after she was told she was being
terminated, she overheard a telephone conversation between Mark Hellman and Arthur Basley,
Senior Director of Occupational Safety and Training. Gutierrez Decl. ¶ 58. During that
conversation, Hellman told Basley, “Make sure you hire the young lady between the age of 25
and 30 that smile, a lot of long black hair, the one[] from the temporary agency. Def. Stmt.
(Kirkland), Ex. U, at 71.
b. TIS Reductions
Abigail Amsterdam, TIS’s Chief Officer of Finance and Administration, learned of the
RIF in 2009. Amsterdam and Sidney Gellineau, Vice President of TIS, in conjunction with the

8

human resources department, developed a system to evaluate TIS employees for the RIF. Id. ¶¶
42-45. They created twelve categories that were targeted towards the skills and attributes that
were considered important to TIS. Id. ¶ 47. The categories were: “TA/OA Years of Service,”
“Absenteeism,” “Availability,” “Quality of Output,” “Quantity of Output,” “Job Knowledge,”
“Supervisory Skills,” “Communications Skills,” “Analytical Skills,” “Initiative,” “Organizational
Skills,” and “Interpersonal Skills.” English Resp., Ex. 30. The lowest score for each category
was 1, and the highest was 5. Like the guidelines for the clerical/administrative group, the TIS
system also included numerical multipliers that weighted each category differently. For
example, the score for “Years of Service” was multiplied by 4, while “Output Quality” was
multiplied by 12. Def. Stmt. (English), Ex. I. The ranking system also included a short
definition of scores 1 through 5 for each category. English Resp., Ex. 30. At the time
Amsterdam and Gellineau developed the evaluation system, they did not know how many
positions would be targeted for reduction. Id. ¶ 46.
Senior TIS managers were instructed to evaluate their employees according to the
system. Id. ¶ 47. OMB subsequently informed TIS of the required reductions, and the
supervisors’ evaluations were used to determine which employees would be laid off.11 Id. ¶ 48.
i. Soossan Salmassi
Soossan Salmassi began working at the MaBSTOA in 1989 as a Provisional
Administrative Management Auditor. She received a promotion in 1995, and in 2004 was
transferred to TIS. In 2005, she became the Director of Contract Compliance in the TIS

11

TIS faced a larger number of reductions than other departments. In 2009, NYCTA had begun to in-source
desktop support services that had been provided by Unisys, a third-party contractor. The 2009 TIS budget therefore
provided for a number of new positions to take over the services previously provided by Unisys. Id. ¶ 31. In late
2009, however, due in part to the worsening of NYCTA’s budgetary problems, the NYCTA decided not to in-source
the Unisys contract after all. Because TIS had already filled some of the new positions created in anticipation of the
in-sourcing, additional cutbacks were needed to meet the reductions required by OMB. Id. ¶ 32.

9

Operations Services Unit, where she reported to Sherry Sugar.12 Def. Stmt. (Salmassi) ¶ 16.
Salmassi’s primary responsibility was reviewing vendor invoices and services provided under
NYCTA’s contracts with Unisys. Id. ¶¶ 17-18. The Unisys contract was transferred to the
Customer Service & Security Unit in 2009, as part of the NYCTA’s planned in-sourcing of
technology services. Id. ¶ 20. In early 2010, Salmassi was therefore transferred to the Customer
Service & Security unit, where she reported to Richard Hayes and Eustace Castellaneta. Id. ¶ 22.
Salmassi maintains, however, that she remained “under Sugar’s authority” until June 2010.
Salmassi Resp. ¶ 20.
Salmassi also has a different explanation of her termination. She testified that, beginning
in early 2010, Gellineau and Castellaneta began praising TIS’s youngest member for “embracing
new ideas” and being “open to change,” and that, during meetings, they said that NYCTA
needed to get rid of “dead wood.” Def. Stmt. (Salmassi) ¶ 54.
Salmassi also asserts that in February 2010, Sugar asked her to create a complex
spreadsheet relating to the IBM contract, even though Salmassi was familiar only with the
Unisys contract. Id. ¶ 56. Salmassi suggested that Sugar assign the task to another employee,
who Salmassi believed was more familiar with the IBM contract, but Sugar insisted that
Salmassi perform the task. Id. ¶ 59. Salmassi claims that, following her completion of the
spreadsheet, she was not invited to key meetings relating to the IBM contract. Id. ¶ 60.

12

Salmassi claims in her Declaration, submitted in conjunction with her Opposition to Defendants’ Motion for
Summary Judgment, that when she moved to TIS, Sidney Gellineau assigned Dede Ngonga, 48-year-old woman, the
position of Senior Director of System Review and Internal Controls, instead of Salmassi. According to the
Declaration, Gellineau said that he “preferred the younger woman for this position,” and told Salmassi to look for a
different position. Id. ¶ 13. The Declaration states that, after Salmassi contacted human resources to complain, she
was transferred to a different division. Id. ¶ 15. Salmassi made no mention of these allegations in her Complaint or
her deposition. Accordingly, the Court declines to consider them. See Alali v. DeBara, 2008 U.S. Dist. LEXIS
86760, at *11, at n.6 (S.D.N.Y. Oct. 24, 2008).

10

In Salmassi’s performance reviews, Sugar recommended that Salmassi take certain Excel
and other technical courses that were offered by NYCTA, in order to improve her technological
expertise. Id. ¶ 62. Salmassi stated at her deposition that she had taken the courses, but never
informed Sugar that she had done so. Id. ¶ 63. Salmassi also claims that, beginning in 2010,
NYCTA refused to pay the annual fees for her auditor certification. Id. ¶ 66.
Salmassi’s RIF evaluation was performed by Sugar, who had supervised Salmassi for
several years. The ranking was reviewed by Hayes and Castellaneta. Id. ¶ 52. Eighteen
managers in Salmassi’s unit were ranked, and two were laid off. At the time of the ranking,
Salmassi was 59 years old, and the oldest of the eighteen managers. Id. ¶ 75. Salmassi was
ranked last; the second-lowest ranked manager was 50 years old. Of the sixteen managers who
were not terminated, seven were over the age of 50 (ages 58, 57, 55, 52, 52, and 51). Id.
On July 16, 2010, Salmassi was terminated, effective September 17, 2010. Salmassi
asserts that she was asked to train Christine Hofmann, a 30-year-old woman, to do her job, and
that Hofmann then took over Salmassi’s job responsibilities. Id. ¶ 71. Salmassi does not
dispute, however, that at the time of the RIF, Hoffman had accepted a position in another TIS
unit. Id. ¶ 73.
On August 28, 2010, Salmassi wrote a letter to Joel Andrews, Chief Officer of the
NYCTA’s Office of Equal Employment Opportunity, seeking an investigation into “rampant
cronyism and nepotism” within the NYCTA. Id. ¶ 68. The letter made no reference to age
discrimination, but asserted that certain employees had been singled out for preferential
treatment. Id. ¶ 69. Three of the employees that Salmassi identified were over the age of 50 at
the time (ages 57, 55, and 51). Id.

11

ii. Charles Thigpen
Thigpen began working in the Law Department of the NYCTA in 1991. He joined the
MaBSTOA’s Department of Buses in 1993. Between 1991 and 2001, Thigpen transferred
between various units in the MaBSTOA, receiving two promotions. Def. Stmt. (Thigpen) ¶¶ 711. In 2001, Thigpen began working in TIS, and in 2005 began reporting to Sherry Sugar and
Ron Kateman. In 2006, Kateman requested that Thigpen be promoted, and Sugar approved the
promotion. In 2008, Thigpen was transferred to the Computer Service & Security Unit, where he
reported to Eustace Castellaneta and Pam Daley. His responsibilities included overseeing the
ordering and installation of computer-related equipment, as well as the removal and disposal of
such equipment. Def. Stmt. (Thigpen) ¶ 15.
Thigpen claims that in 2008, Kateman recommended him for another promotion, but
Sugar “threw away” the recommendation, telling Thigpen that Kateman “didn’t do [her] any
favors.” Id., Ex. D, at 67. Thigpen testified that he believed Sugar’s action was motivated by
age discrimination because, at the time, another employee was also scheduled to receive a
promotion, but did not receive one. Id. Thigpen could not recall the name of that employee, but
stated that the employee “retired before the RIF.” Id.
Thigpen asserts that at several meetings in 2008 and 2009, Gellineau discussed need to
get rid of “dead wood” in NYCTA. Id., Ex. D, at 37. According to Thigpen, during this time,
Gellineau also stated that he believed that Christine Hoffman, who had recently joined Thigpen’s
unit, would bring “new life or new blood to the process.” Id., Ex. D, at 72. In addition, Thigpen
stated that in early 2010, Gellineau and Castellaneta began praising Peter Giang, a young TIS
employee. Def. Stmt. (Thigpen) ¶ 49.

12

Thigpen was ranked by Castellaneta and his senior managers. Id. ¶ 44. Thigpen asserts
that this was improper, because Castellaneta was “not [his] immediate manager” and was
“unfamiliar with [his] performance.” Thigpen Resp. ¶ 44. Thigpen was ranked with fifty-four
other employees; nineteen of the fifty-five were slated for layoffs. Def. Stmt. (Thigpen) ¶ 52.
Thigpen (age 60) was ranked fifth-lowest. The four lowest-ranked employees were all younger
than Thigpen (ages 30, 35, 42, and 45). Id. ¶ 54. Of the employees who were not terminated,
four were Thigpen’s age or older (ages 63, 61, 60, and 60).
Thigpen was terminated on September 17, 2010.13 Def. Stmt. (Thigpen) ¶ 3.
iii. Oscar Martinez
Oscar Martinez began working as a computer associate in the MaBSTOA in 1997. Def.
Stmt. (Martinez) ¶ 7. During the thirteen years he worked at MaBSTOA, Martinez received
multiple promotions, and was transferred into several different units. From 2009 until 2010,
Martinez was employed in the Customer Service & Security Unit of TIS. Id. ¶¶ 13-14.
Martinez’s duties included analyzing, inventorying, and managing computer database servers.
Def. Ex. D, at 25.
Martinez asserts that in 2007, he was required to train a younger employee, Stanley
Bryan, who eventually took over Martinez’s job. Id. ¶¶ 49-50. Martinez claims that Gellineau
discussed the need to get rid of “dead wood” in the MaBSTOA. Id. ¶ 46. At his deposition,
Martinez testified that, when Gellineau used the phrase “dead wood,” Martinez “thought he was
referring . . . not to old people, but to people who would be sleeping at work, people who would
be reading only newspapers, people who . . . just wanted to be there just to collect money.” Id.,
Ex. D, at 60. Martinez also testified that Gellineau praised Peter Giang, and said, “I want more

13

Thigpen does not dispute Defendants’ assertion that he was terminated on September 17, 2010. Thigpen Resp. ¶
3. Thigpen’s Declaration, however, states that his termination was effective on July 16, 2010. Thigpen Decl. ¶ 119.

13

people like this. I want young blood.” Id., Ex. D., at 92-93. Martinez testified that, when
Gellineau referred to “young blood,” Martinez “thought that he meant full of energy.” Id., Ex.
D, at 93.
Martinez’s supervisor, David Sepulveda, prepared Martinez’s RIF evaluation, and his
other supervisor, Eustace Castellaneta, reviewed it. Id. ¶ 43. Fifty-five employees in Martinez’s
sub-unit were ranked, and the nineteen lowest-ranked employees were selected for layoffs. Id. ¶
51. Martinez (age 49) was the ninth-lowest ranked employee. Of the eight employees ranked
lower than Martinez, all but one were younger than 49 (ages 33, 37, 38, 42, 45, 47, and 48).
Thirty-six employees in the unit were not terminated; eleven of those thirty-six were older than
Martinez (ages 63, 61, 60, 60, 59, 59, 56, 55, 52, 51, and 50). Id. ¶ 52.
Martinez was laid off on July 16, 2010, effective September 17, 2010.
iv. Deborah English
Deborah English began working at MaBSTOA in 1994 as a computer specialist in the
TIS division. Def. Stmt. (English) ¶ 6. From 1994 to 2008, English received “superior” and
“good” performance reviews; she also received two promotions. Id. ¶ 8; English Resp. ¶¶ 7-8.
In 2008, English was assigned to the Internet Technologies Unit, where she reported to Shahreen
Ali and Sohaib Mallick. Defendants assert that the project that English had been working on was
transferred to Mallick’s unit in 2008 because it “had been seriously delayed and needed to be
expedited.” Def. Stmt. (English) ¶ 12. English contends that any delays in the project were
attributable to Mallick and to Ali, a less qualified thirty-six year old woman, who Salmassi
believes replaced her on the project. English Resp. ¶ 12.
According to Robert Otero, Chief Officer of Applications in the TIS division, English
was a “very well-regarded member of the unit,” but lacked “web-design experience” necessary

14

for certain tasks. Def. Stmt. (English), Ex. F. Mallick testified that he “always liked” English,
but that she “was not proficient with [the] technology that [Mallick’s group was] using.” Id., Ex.
E, at 26, 33. English claims that Mallick “did not read or chose to ignore English’s [performance
reviews] and . . . resume,” which indicated that she possessed the necessary technical training.
English Resp. ¶ 16. She asserts that she “only needed to learn Mallick’s unit’s methodology,
standards, and screen style,” but she never received that training. English Resp. ¶ 16; Id. ¶ 51.
Mallick acknowledged that English had not received additional technology training, but
explained that, because English’s project had been “so much delayed,” he “had to use people
who were very proficient in this type of technology to finish the job.” Def. Stmt. (English), Ex.
E at 33. In 2008 and 2009, English received “fully satisfactory” evaluations during her
performance reviews. Id. ¶ 11.
Mallick prepared English’s RIF evaluation, and Otero reviewed it. Id. ¶ 49. At the time,
English was 56 years old. Sixteen employees in English’s unit were evaluated, and the two
lowest-ranked employees were laid off: English, and another employee, who was 46 years old.
Id. ¶ 64. English’s unit contained six employees who were over the age of fifty; English was the
only one of those employees who was laid off. Id. ¶ 64. Two employees in English’s sub-unit
who were not laid off were older than English—one was 58 years old and the other 70. Id.
English testified that, “in connection with the RIF,” Mallick asked English, “Can you
retire?” English responded, “With a penalty.” Id., Ex. H, at 26. Mallick then told English that
“people who [are] eligible to retire should retire and make room for the younger generation.” Id.
English also claims that the NYCTA sought to protect employees who had been newly
hired in connection with the in-sourcing of the Unisys contract, rather than retaining older,
experienced employees. English Resp. ¶ 28.

15

English was laid off, effective September 17, 2010. Id. ¶ 3.
LEGAL STANDARDS
Summary judgment is appropriate if “the movant shows that 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). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere existence of some
alleged fact dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at
247-48. When determining whether such a dispute exists, a court examines all evidence in the
light most favorable to the nonmoving party. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145
(2d Cir. 2008).
The ADEA prohibits employers from discharging or discriminating against “any
individual with respect to his compensation, terms, conditions, or privileges of employment,” on
the basis of age. 29 U.S.C. § 623(a). When analyzing claims of age discrimination, courts
employ the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The plaintiff “bears the initial burden of establishing a prima facie case of
discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). If the
plaintiff establishes a prima facie case, “the burden shifts to the defendant to articulate ‘some
legitimate, nondiscriminatory reason’ for its action.” Id. (quoting McDonnell Douglas Corp.,
411 U.S. at 802). Should the defendant provide such a reason, the plaintiff “can no longer rely
on the prima facie case, but may still prevail if she can show that the employer’s determination
was in fact the result of discrimination.” Id. In the context of ADEA claims, a plaintiff
“bringing a disparate-treatment claim . . . must prove, by a preponderance of the evidence, that

16

age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 180 (2009).
The Second Circuit “has repeatedly emphasized the need for caution about granting
summary judgment to an employer” where “the merits turn on a dispute as to the employer’s
intent.” Gorzynski, 596 F.3d at 101 (citation omitted). Still, a plaintiff “must provide more than
conclusory allegations” to withstand a motion for summary judgment. Id.
APPLICATION
I.

Prima Facie Case

To demonstrate a prima facie case of age discrimination, Plaintiffs must show (1) that
they were within the protected age group, that is, over 40 years old, (2) that they were qualified
for their positions, (3) that they experienced adverse employment actions, and (4) that the actions
occurred under circumstances giving rise to an inference of discrimination. Bucalo v. Shelter
Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012). It is undisputed that all
Plaintiffs were over 40 years old, that they were qualified for their positions, and that they
experienced adverse employment actions.
It is not at all clear that Plaintiffs have provided evidence that their terminations occurred
under circumstances giving rise to an inference of discrimination. A full analysis is unnecessary,
however, because even assuming that Plaintiffs had established a prima facie case of age
discrimination, Defendants have articulated a “legitimate, nondiscriminatory reason” for
terminating Plaintiffs’ employment. See Gorzynski, 596 F.3d at 106 (citation omitted).
II.

Reduction in Force

The RIF conducted by the NYCTA and MaBSTOA was a “legitimate, nondiscriminatory
reason” for Plaintiffs’ termination. See Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d

17

Cir. 2014). The Second Circuit “has long held that ADEA claims arising from the results of a
firm’s force reduction will generally not lie where the record demonstrate[s] that the
reorganization was a business decision made on a rational basis.” Deebs v. ALSTOM Transp.,
Inc., 346 Fed. Appx. 654, 657 (2d Cir. 2009) (citation omitted).
The RIF was conducted on a rational basis by the NYCTA and MaBSTOA. It is
undisputed that the NYCTA faced a severe budget deficit in 2008-2009. After instituting both a
hiring freeze and a voluntary severance program, the NYCTA determined that non-voluntary
layoffs were necessary. Def. Stmt. (English) ¶¶ 22-34. Employees were grouped according to
their job titles within individual departments, and were evaluated by their supervisors.
Supervisors received guidelines which contained specific categories on which employees were to
be evaluated, using a pre-determined numerical scale. In addition, the guidelines defined each
number on the scale for each category. When evaluating employees, the supervisors did not
know how many employees—if any—would be terminated as a result of the RIF. Id. ¶ 48; Def.
Stmt. (Kirkland) ¶ 94.
Plaintiffs attack the legitimacy of the RIF for a number of reasons. They argue that the
NYCTA budgetary shortfall was not caused by declining real property sales and the economic
recession of 2008 and 2009, as Defendants claim, see Def. Stmt. (English) ¶ 20, but rather by the
NYCTA’s mismanagement of its real estate portfolio, and its failure to properly monitor
employees’ overtime pay. English Resp. ¶ 20. There is no doubt, and Plaintiffs do not dispute,
that NYCTA faced a massive budget shortfall. Even if that shortfall were due to the NYCTA’s
mismanagement, the deficit still had to be addressed. Even if Plaintiffs’ assertions were true, this
does not provide evidence that a RIF was unnecessary in 2010, or that Plaintiffs were laid off
because of their ages.

18

Plaintiffs also contend that the implementation of the RIF process was deficient. In
particular, Plaintiffs argue that the “grouping” of employees for RIF purposes was unfair and
nonsensical, and that certain Plaintiffs were ranked by supervisors who were unfamiliar with
their day-to-day work, who did not properly review their previous annual reports.
Plaintiffs have produced evidence that implementation of the RIF process was imperfect.
For example, Librera testified during her deposition that, although she believed that the RIF
process was fair and objective, “[w]hat she would like to have seen different was the outcome.”
Def. Stmt. (Kirkland), Ex. X, at 63. According to Librera, English and Gutierrez “were laid off
even though they had very good evaluations . . . because they were considered among a small
group of people and those were the provisional clericals in [S]ubways. Had those groupings
been done differently, the outcome would have been different.” Id. Similarly, Hellman testified
that Gutierrez, “who got very good . . . rankings[,] should not have gotten RIF’d.” Id., Ex. W, at
48. Instead, Hellman testified, the NYCTA “should have looked at everyone in total . . .
everybody should have been part of the same pool and it should have been done Authority-wide.
. . . I didn’t think it was fair that clerical employees within Subways would get RIF’d.” Id.
But even if Plaintiffs and other NYCTA and MaBSTOA employees were dissatisfied
with how employees were “grouped,” that does not establish that the evaluations were
discriminatory on the basis of age. See Harris v. Niagara Mohawk Power Corp., 252 F.3d 592,
599 (2d Cir. 2001) (“[A]s a general matter, the mere fact that an employer failed to follow its
own internal procedures does not necessarily suggest that the employer was motivated by illegal
discriminatory intent.”) (citation omitted).
Plaintiffs also claim that the RIF ranking guidelines inherently disfavored older
employees. But there is no evidence from which a reasonable jury could determine this to be the

19

case. For example, Gutierrez complains that the RIF evaluation did not include “any evaluation
for the years of services that [she] ha[d] in Transit.” Def. Stmt. (Kirkland) ¶ 168. Yet the RIF
form used to evaluate Gutierrez included a category specifically directed to “Work-Related
Experience,” which “refer[red] to both TA/OA Experience and External Experience.” Id., Ex. I,
J.
Similarly, English asserts that the TIS evaluation forms excluded categories such as
Education, Work Experience, and Computer Skills. English Resp. ¶ 50. The first entry on the
TIS evaluation guidelines, however, is “TA/OA Years of Service,” with 0-3 years of service
receiving the lowest possible score of “1,” and 25+ years receiving the highest possible score of
“5.” English Decl., Ex. 30. The TIS guidelines also included categories designed to quantify
employees’ experience and skills, including “Job Knowledge,” “Quality of Output,” and
“Supervisory Skills.” Id.
Plaintiffs claim that the TIS and clerical/occupational RIF guidelines “assigned a low
weight . . . to the number of years with the NYCT,” while assigning high weights to “soft,
subjective categories such as ‘Initiative’ and ‘Communications Skills.’” English Resp. ¶ 50.
Accordingly, Plaintiffs claim, the RIF evaluations undervalued older employees’ years of service
with the NYCTA and MaBSTOA, and permitted Defendants to manipulate the numbers in the
“soft, subjective categories” to skew the evaluations in favor of their preferred employees.
It is undisputed that both the TIS and clerical/occupational guidelines expressly took into
account employees’ experience and years of service. The NYCTA also determined, based on the
needs of its departments, what other categories to include, as well as the appropriate weights to
assign to those categories. These guidelines were used to rank all RIF-eligible TIS and
clerical/occupational employees, and there is no evidence that the results disproportionately

20

affected older employees. Indeed, a number of employees younger than Plaintiffs were laid off,
while many employees older than Plaintiffs retained their jobs. See Colon v. Trump Int’l Hotel
& Tower, 2011 U.S. Dist. LEXIS 140606, at *19 (S.D.N.Y. Dec. 6, 2011) (“Proof that a
significant number of employees the same age or older than the plaintiff remained on the job
undermines the claim that age was the determinative factor in the plaintiff’s termination.”)
(citation omitted). Simply because the guidelines did not assign the highest weight to categories
related to “experience” does not render them discriminatory.
III.

Plaintiffs’ Discrimination Claims

Because Defendants have articulated a “legitimate, nondiscriminatory reason” for
terminating Plaintiffs’ employment, see Gorzynski, 596 F.3d at 106, Plaintiffs are not entitled to
rely on a prima facie case. Plaintiffs may defeat summary judgment, however, by setting forth
evidence from which a reasonable jury could conclude, by a preponderance of the evidence, that
“age was the ‘but-for’ cause of the challenged adverse employment action.” See Gross, 557 U.S.
at 180.
Plaintiffs’ claims of age discrimination are largely based on a handful of alleged and/or
hearsay comments attributed to NYCTA executives. “Verbal comments” are “evidence of
discriminatory motivation when a plaintiff demonstrates that a nexus exists between the
allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff.”
Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 519 (S.D.N.Y. 2004). To determine whether a
comment is a “probative statement that evidences an intent to discriminate” or whether it is “a
non-probative ‘stray remark,’” courts consider: “(1) who made the remark, i.e., a decisionmaker,
a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the
employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror

21

could view the remark as discriminatory; and (4) the context in which the remark was made, i.e.,
whether it was related to the decisionmaking process.” Id. As set forth below, the majority of
the alleged comments were remote in time to the RIF evaluations, were not directed at Plaintiffs,
and only marginally related to age.
Plaintiffs also claim that they were “replaced” by younger employees. It is undisputed,
however, that no new employees were hired to assume Plaintiffs’ duties, but rather, Plaintiffs’
responsibilities were assumed by other NYCTA and MaBSTOA employees.
a. Rosetta Kirkland
Kirkland’s assertion that, according to Laura Turso, Librera, Cronin, and Bianco had
discussed the need for “young blood” at a meeting, reflects merely a “stray remark.” Setting
aside the hearsay problems posed by this statement, Librera’s undisputed testimony is that, to the
extent that such a statement was made, it had nothing to do with the RIF or with laying off
employees, but instead with creating a social media-like internal communication platform for
NYCTA and MaBSTOA employees. Def. Stmt. (Kirkland) ¶ 137.
Moreover, Cronin, Bianco, and Librera did not evaluate Kirkland in connection with the
RIF. Kirkland was evaluated by Hellman, and received a RIF evaluation that she believed was
“fair.” Id. ¶ 110. Although Kirkland alleges that Librera was involved with her termination,
Kirkland could not articulate whether, how, or why, Librera selected her for the layoffs. Nor did
the alleged meeting appear to affect other employees who were evaluated with Kirkland—
Kirkland was 40 years old, and of the employees in her group who were not laid off, six were
older than 40 (ages 60, 58, 55, 55, 45, and 41). Id. ¶ 106.
Kirkland’s claim that Turso, a younger employee, took over certain of Kirkland’s
responsibilities after her termination likewise does not provide evidence of age discrimination.

22

The fact that “other employees have assumed [her] work does not mean plaintiff was replaced,”
but “merely demonstrates that, as in most reduction-in-force cases, [the employer] has been
successful in reducing the number of employees required to perform certain work.” McKinney v.
NXP Semiconductors USA, Inc., 2009 U.S. Dist. LEXIS 86744, at *22 (S.D.N.Y. Mar. 2, 2009)
(citation omitted).
b. Juana Gutierrez
Gutierrez’s failure to receive a promotion in 2009 is not evidence of age discrimination,
because it is undisputed that as of April 2008, the NYCTA had implemented a hiring and
promotional freeze for all non-operating positions.14 Moreover, Gutierrez provides no
information linking her stalled promotion to her age.
Gutierrez also claims that a handful of comments constitute evidence of age
discrimination, but these comments—whether considered alone or as a whole—constitute mere
stray remarks. Prendergast’s alleged comments that it was “amazing all the same faces [he] left
behind” in the NYCTA, and that he was “surprised to see so many old faces” provide little
evidence of discriminatory animus; if anything, the remarks seem to convey Prendergast’s
pleasure at recognizing familiar faces in the NYCTA and MaBSTOA. Def. Stmt. (Kirkland) ¶¶
151-52. Nor were the comments made in the context of the RIF. In fact, it is undisputed that
Prendergast did not conduct any Plaintiff’s RIF evaluation.
Karen Jeffries’ alleged comment that the NYCTA wanted to “get rid of older employees.
Deadwood,” is also a stray remark. Id., Ex. V, at 63. Jeffries was not Gutierrez’s supervisor, nor

14

Plaintiffs assert that Defendants hired and promoted employees during the hiring freeze, in violation of the
NYCTA policy. English Resp. ¶¶ 19, 25. Plaintiffs’ evidence, presented for the first time in Plaintiffs’ Opposition
to Defendants’ Motions for Summary Judgment, appears to have been compiled based on a search of the website
LinkedIn. This Court declines to consider this new evidence, which, in any event, is inadmissible hearsay. See Fed.
R. Evid. 801.

23

is there evidence that she conducted any RIF evaluations. Moreover, the context of the remark is
unclear—Gutierrez’s testimony indicates that Jeffries was simply sharing her own opinion
regarding the NYCTA’s actions.
Hellman’s alleged statement that Arthur Basley should “hire the young lady” from “the
temporary agency” also fails to provide evidence of discrimination. Id., Ex. U, at 71. There is no
evidence regarding what sort of position the “young lady” was being considered for, or whether
the position was even within the NYCTA or MaBSTOA. Nor did Hellman evaluate Gutierrez in
connection with the RIF; he did evaluate Kirkland, who believed he had evaluated her “fairly.”
Id. ¶ 110. Moreover, none of the alleged comments appear to have resulted in older employees
in Gutierrez’s group being disproportionately affected by the RIF. Of the twelve who were laid
off in connection with the RIF, seven were younger than Gutierrez (ages 28, 30, 34, 37, 40, 40,
and 45); four employees who retained their jobs were older (ages 60, 58, 55, and 55).
c. Soossan Salmassi
Salmassi, Martinez, and Thigpen claim that during meetings in 2008 and 2009, Sidney
Gellineau discussed the need to get rid of “dead wood” in the MaBSTOA. Def. Stmt. (Salmassi)
¶ 54. These alleged comments constitute non-probative stray remarks. Although Gellineau was
a Vice President of TIS, and therefore a high-level employee, it is undisputed that Gellineau did
not evaluate Salmassi, Martinez, Thigpen, or any other Plaintiff, in connection with the RIF.
Gellineau helped create the TIS evaluation guidelines, but there is no evidence that the
guidelines discriminated against older employees. The remarks were made well before February
2010, when the RIF was announced, and they were not made “in relation to” the RIF process.
See Schreiber, 324 F. Supp. 2d at 519. Gellineau’s undisputed testimony is that the purpose of

24

his comments was to motivate managers to “writ[e] . . . people up for not doing their jobs.” Def.
Stmt. (Salmassi) Ex. M, at 34.
In any event, it is doubtful that the phrase “dead wood” is discriminatory, because it does
not necessarily refer to age. Martinez, for example, testified that when Gellineau used the phrase
“dead wood,” Martinez “thought he was referring . . . not to old people, but to people who would
be sleeping at work, people who would be reading only newspapers.” Def. Stmt. (Martinez), Ex.
D, at 60. This is consistent with Gellineau’s own testimony, in which he stated that his
comments regarding “get[ting] rid of the dead wood within TIS,” referred to “employees that
were sleeping,” and “employees that weren’t doing their jobs.” Def. Stmt. (Salmassi), Ex. M, at
33-34; see Wado v. Xerox Corp., 991 F. Supp. 174, 202 (W.D.N.Y. 1998) (“‘Dead wood’ implies
employees who are unproductive or superfluous,” and “could just as easily include younger
employees as older employees”).
Similarly, Gellineau and Castellaneta’s complimenting Peter Giang for having “new
ideas” and “embracing change” are also stray remarks. See Altman v. New Rochelle Pub. Sch.
Dist., 2014 U.S. Dist. LEXIS 84714, at *29 (S.D.N.Y. June 19, 2014) (holding that “remarks
[plaintiff’s supervisor] allegedly made encouraging [p]laintiff to learn from the young teachers
who had fresh, new ideas” constituted stray remarks that did not, without more, give rise to an
inference of discrimination).
Salmassi’s other allegation that concerning age is that Christine Hoffman, a 30-year-old
woman, took over Salmassi’s responsibilities after her termination.15 Salmassi does not dispute
that, at the time of the RIF, Hoffman had already accepted a position in another TIS unit. Yet

15

Salmassi has not demonstrated that her other allegations, namely, that Sugar assigned her a task relating to a
contract that she was unfamiliar with, and that NYCTA refused to pay the annual fees for her auditor certification,
relate in any way to her age.

25

even if Hoffman had assumed some of Salmassi’s duties, it would not necessarily mean that she
had “replaced” Salmassi. See McKinney, 2009 U.S. Dist. LEXIS 86744, at *22.
d. Charles Thigpen
Thigpen claims to have overheard Gellineau make an additional comment relating to age:
when Christine Hoffman joined Thigpen’s unit, Gellineau said that she would bring “new life or
new blood to the process.” Def. Stmt. (Thigpen), Ex. D, at 72. Comments regarding “new life”
or “new blood,” however, do not “give rise to a reasonable inference of age discrimination”
because they “could just as easily refer to bringing new members into a group, regardless of age,
for a fresh perspective.” Carter v. Verizon, 2015 U.S. Dist. LEXIS 6370, at *1819 (S.D.N.Y.
Jan. 20, 2015).
Thigpen also claims that he was discriminated against because in 2008, Sherry Sugar
“threw away” his recommendation for a promotion. The only connection Thigpen makes
between his age and Sugar’s alleged act is that another employee was also scheduled to receive a
promotion, but did not receive one. Def. Stmt. (Thigpen), Ex. D, at 67. Without any additional
information regarding the employee, such as his age and the circumstances surrounding his
failure to receive the promotion, it would be impossible to conclude that Sugar’s actions were
motivated by age. Indeed, Thigpen’s testimony indicates that Sugar was motivated not by
Thigpen’s age, but by animosity towards Kateman. See id., Ex. D, at 67 (Sugar “threw away”
Thigpen’s recommendation from Kateman, and stated that Kateman “didn’t do [her] any
favors”).
Thigpen objects to the fact that Castellaneta reviewed him for the RIF, because
Castellaneta was “not [his] immediate manager.” Thigpen Resp. ¶ 44. The “mere fact that [the
NYCTA and MaBSTOA] failed to follow [their] own internal procedures” however, “does not

26

necessarily suggest that [they were] motivated by illegal discriminatory intent.” See Harris v.
Niagara Mohawk Power Corp., 252 F.3d 592, 599 (2d Cir. 2001). This is particularly true where
each of the four employees ranked lower than Thigpen (age 60) were younger (ages 30, 35, 42,
and 45), and four employees who were not terminated were his age or older (ages 63, 61, 60, and
60).
e. Oscar Martinez
Martinez’s allegations are primarily based on the alleged comments by Gellineau in 2008
and 2009 regarding “dead wood.” Martinez also alleges that, while praising Peter Giang,
Gellineau stated, “I want more people like this. I want young blood.” Def. Stmt. (Martinez), Ex.
D., at 92-93. The phrase “young blood,” when “made by decision makers in connection with [an
employment] decision,” may provide evidence of age discrimination. See Stampfel v. City of
New York, 2005 U.S. Dist. LEXIS 36371, at *15 (S.D.N.Y. Dec. 27, 2005). Here, however,
Gellineau did not evaluate Martinez—or any other Plaintiff—in connection with the RIF. Nor is
there evidence that the comment was directed at any particular employee. See Castro v. Local
1199, Nat’l Health & Human Servs. Emps. Union, 964 F. Supp. 719, 726 (S.D.N.Y. 1997)
(“[U]pper management’s statement that the union needed ‘young blood’” not considered
discriminatory where they were made “in her presence” but “not expressly directed at plaintiff”).
Indeed, at the time Gellineau allegedly made the comments, Martinez did not believe that
Gellineau was referring to age. See Def. Stmt. (Martinez), Ex. D., at 93 (when Gellineau
referred to “young blood,” Martinez believed that he meant “full of energy”). There is also no
evidence that such statements had any effect on the RIF evaluations for Martinez’s group: of the
eight employees who were ranked lower than Martinez (age 49) in the RIF evaluations, all but

27

one were younger (ages 33, 37, 38, 42, 45, 47, and 48), and eleven employees who were not
terminated were older (ages 50, 51, 52, 55, 56, 59, 59, 60, 60, 61, and 63). Id. ¶ 52.
The only other allegation Martinez sets forth is that he was required to train a younger
employee, Stanley Bryan, who eventually took over Martinez’s job. Yet Martinez claimed that
he trained Bryan in 2007, three years before Martinez was terminated. In any event, the fact that
Bryan took over Martinez’s job during a RIF does not provide evidence of age discrimination.
See McKinney, 2009 U.S. Dist. LEXIS 86744, at *22.
f. Deborah English
English’s allegations that Mallick asked her whether she could retire, and told her that
“people who [are] eligible to retire should retire and make room for the younger generation,”
provides some evidence of age discrimination.16 Mallick was English’s supervisor and evaluated
her during the RIF process, the remark was allegedly made in connection with the RIF, and a
reasonable juror might view the remark as discriminatory. See Schreiber, 324 F. Supp. 2d at
519.
Viewed in conjunction with all of the evidence, however, that remark alone does not
provide sufficient evidence for a reasonable jury to be able to find that English would have not
have been terminated, but for her age. The record reflects that both Mallick and Otero, who
assisted in preparing the ranking sheet, believed that English lacked the technological expertise
necessary for their unit. Sixteen employees were reviewed in English’s unit, six of whom were

16

Though Mallick denies making this statement, for purposes of summary judgment, this Court views the facts in
the light most favorable to Plaintiffs, the non-moving party. See Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145
(2d Cir. 2008).
English also claims that Mallick addressed his female subordinates as “girls,” and directed them to bring him coffee.
Def. Stmt. (Salmassi) ¶ 55. These allegations may be relevant to claims of sex discrimination, but English is
asserting only an age discrimination claim. While English asserts that “the ‘girls’ . . . [were] significantly younger
than English,” she provides no additional information to support this claim, or to connect it to her age discrimination
claim. Salmassi Resp. ¶ 51.

28

over the age of fifty, but English was the only one of the six who was laid off. Two employees
who were not laid off were older than English: one was 70 and the other 58. The only other
employee who was terminated was ten years younger than English.17 Def. Stmt. (English) ¶ 64.
STATE LAW CLAIMS
Following the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009), whether the same standard applies to NYSHRL claims as to ADEA claims is an “open
question within the Second Circuit.” Digilov v. JPMorgan Chase Bank, N.A., 2015 U.S. Dist.
LEXIS 19370, at *31 (S.D.N.Y. Feb. 18, 2015). In addition, the standard for age discrimination
claims under NYCHRL is more permissive than that of the ADEA. Velazco v. Columbus
Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015). This Court therefore declines to exercise
jurisdiction over Plaintiffs’ NYSHRL and NYCHRL claims. See 28 U.S.C. § 1367(c).

17

English also asserts that the new employees who had been hired in connection with the Unisys in-sourcing were
retained during the RIF, while older, more experienced employees were terminated. She admits, however, that the
employees who she claims should have been terminated received high scores in their RIF evaluations. Salmassi
Decl. ¶ 101; Salmassi Resp. ¶ 32.

29

CONCLUSION
Defendants’ Motions for Summary Judgment are GRANTED with respect to Plaintiffs’
ADEA claims. The Clerk of Court is directed to enter judgment and close these cases.

Dated: New York, New York
September 3, 2015

SO ORDERED

________________________
PAUL A. CROTTY
United States District Judge

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