Benyard v. White Plains Hospital Medical Center et al
OPINION AND ORDER re: 26 MOTION for Summary Judgment filed by White Plains Hospital Medical Center, Elizabeth Zimmerman. For the reasons stated above, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate this motion (Doc. 26), enter judgment for Defendants, and close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 11/12/2013) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHARON PECKER BENYARD,
WHITE PLAINS HOSPITAL MEDICAL CENTER :
and ELIZABETH ZIMMERMANN,
NELSON S. ROMÁN, United States District Judge
OPINION AND ORDER
Plaintiff Sharon Pecker Benyard, a registered nurse, commenced the instant action
against her former employer, White Plains Hospital Medical Center (“Hospital”), and former
supervisor, Elizabeth Zimmermann (“Zimmermann”) (collectively, “Defendants”), seeking
monetary damages for wrongful termination. In her complaint, Plaintiff alleges that Defendants
discriminated against her based on her age in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621–634 (Hospital only), and the New York State Human Rights
Law, N.Y. Exec. L. §§ 290–301, and that Defendants retaliated against her after she asserted she
would bring legal action against Zimmermann for mistreatment, in violation of the ADEA and
the Human Rights Law.
Defendants now move, pursuant to Federal Rule of Civil Procedure 56, for summary
judgment, asserting there is no genuine dispute of material fact and Defendants are entitled to
judgment on Plaintiff’s discrimination and retaliation claims as a matter of law. 1 Defendants
aver, inter alia, that Plaintiff cannot make out a prima facie case of discrimination or retaliation
and that Plaintiff cannot show Defendants’ stated reasons for their actions are pretextual. For the
Contrary to Plaintiff’s assertion, Defendants properly and timely served their motion papers in accordance with
Judge Karas’s order of June 10, 2013, (Doc. 16), and the Court’s individual rules of practice, (Rule 3.C.).
following reasons, Defendants’ motion for summary judgment is granted.
I. THE FACTS
The facts are gleaned from the parties’ 56.1 statements, 2 affidavits, and exhibits
submitted with this motion, 3 and are not in dispute except where noted.
Plaintiff began her employment with the Hospital in 1986. At all relevant times, she
worked in the maternity ward of the Hospital, known as the Mother-Baby Unit. Plaintiff’s
performance reviews were excellent through the September 2007 annual evaluation—according
to Plaintiff, she consistently scored above 90 out of 100 for more than twenty years. In 2008, the
Hospital instituted a new human resources program which, according to Defendants, places more
emphasis on the quality of employees’ interactions with patients, co-workers, and managers. On
the two subsequent annual evaluations, Plaintiff’s nurse manager at the time continued to rate her
highly, scoring Plaintiff at 92.5 in 2008 and 94 in 2009.
In February 2010, Defendant Zimmermann became the nurse manager of the MotherBaby Unit. She was previously the Unit’s assistant nurse manager. On April 6 and May 13,
2010, Zimmermann counseled Plaintiff concerning Plaintiff’s over-assertiveness with coworkers and her inappropriate need to demonstrate her seniority in the Unit. On June 30, 2010,
the Mother-Baby Unit nurses drafted and signed a “Commitment to Teamwork” statement in
The Court notes its displeasure with Plaintiff’s failure to follow the Court’s individual rules of practice with
respect to Plaintiff’s Rule 56.1 statement of material facts, (Rule 3.G.iii.), and with respect to Plaintiff’s improper
submission of entire deposition transcripts, (Rule 3.G.iv.).
The Court disregards Defendants’ untimely served April 29, 2013, Request for Admissions to the extent Plaintiff
does not admit its assertions in her Rule 56.1 statement, as requests for admissions were due April 1, 2013, and fact
discovery was to end April 30, 2013. Defendants’ argument that Magistrate Judge Smith had been flexible with
discovery deadlines is of no moment. In the Case Management and Scheduling Order of December 5, 2012, Judge
Karas stated, “The discovery deadline will not be moved. If the Parties want more time for discovery, they can
consent to have the magistrate judge handle the case for all purposes.” (Doc. 7) (emphasis added). However, the
case was referred to Judge Smith only for general pre-trial purposes. (Doc. 8.)
which they collectively agreed to treat others with kindness and respect, maintain a positive
attitude, show empathy toward peers, and share knowledge and experience with peers. In July
2010 Zimmermann gave Plaintiff a verbal warning, apparently about Plaintiff being
confrontational in public with co-workers. On the following annual evaluation covering the
period from September 2009 through September 2010, Zimmermann rated Plaintiff at 68.3 out of
100, stating, inter alia, that Plaintiff had a difficult time following the “Commitment to
Teamwork” statement; that Zimmermann had to counsel Plaintiff multiple times throughout the
year about being overly assertive with co-workers and disrespectful in her communications; that
Plaintiff did not offer information, insight, or support to her peers except when it gratified her;
and that Plaintiff was not a team player, as the Unit’s patients belonged to the entire nursing staff
and not just one nurse. The evaluation requested that Plaintiff consider all the constructive
feedback she had been given throughout the year. Plaintiff received the evaluation in January or
February of 2011.
On March 23, 2011, Zimmermann gave Plaintiff another verbal warning, this time for
purportedly having arrived at work late on March 17, March 22, and March 23. Zimmermann
did not document who observed Plaintiff arriving late on March 23, and it is unclear from the
record whether Plaintiff in fact arrived late on that date. On April 11, 2011, Zimmermann
suspended Plaintiff for two shifts, with the approval of the Hospital’s Human Resources
department, for having a loud, confrontational conversation on April 1 with a nurse from another
unit in front of a patient and in a public area where other patients could hear. Zimmermann
testified that she observed at least part of the conversation. The suspension notice cited
Zimmermann’s previous counseling of Plaintiff regarding her behavior toward co-workers.
On May 17, 2011, Zimmermann issued Plaintiff a written warning for arriving late on
May 5. The warning does not document who observed Plaintiff arriving late, and Plaintiff
testified she arrived twenty minutes early that day because it was her first day back from the
suspension. Plaintiff also asserts that she asked Human Resources to check security camera
footage to see when she actually arrived, but they did not. After being issued the written
warning, Plaintiff cried in front of co-workers, and either Plaintiff or another nurse suggested
that Zimmermann was bullying Plaintiff. According to Plaintiff, during this conversation with
fellow nurses, Plaintiff stated that she would take legal action against Zimmermann if she did not
stop picking on Plaintiff. Plaintiff testified that she did not tell her co-workers what sort of legal
action she had in mind, and that she did not have a specific kind of legal action in mind except
perhaps to have an attorney write a letter to Human Resources because Plaintiff’s purported
offenses were fabricated. Plaintiff asserts in her affidavit that she had heard rumors that the
Hospital was looking to force out older, long-tenured nurses with six-figure salaries and replace
them with younger nurses, and that because of these rumors Plaintiff began to believe she was
one of the people Defendants had targeted for termination. Someone informed Zimmermann that
Plaintiff planned to take action against Zimmermann, and Zimmermann claims in her affidavit
that she felt physically threatened.
On May 23, 2011, Plaintiff’s employment was terminated. After listing the above
purported infractions, counseling sessions, and disciplinary actions, Zimmermann wrote in the
notice of termination that it was unprofessional and unacceptable for Plaintiff to publicly discuss
the most recent written warning, a private matter of discipline, and to make threats against
someone else. The notice then informed Plaintiff that her employment was terminated
immediately “[a]s a result of [Plaintiff’s] continued inappropriate behavior despite being
counseled multiple times.”
II. SUMMARY JUDGMENT STANDARD
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. The rule states in pertinent part: “The court shall grant summary judgment 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). The moving party bears the initial burden
of demonstrating the absence of any genuine dispute or issue 4 of material fact by pointing to
evidence in the record, “including depositions, documents . . . [and] affidavits or declarations,”
Fed. R. Civ. P. 56(c)(1)(A), “which it believes demonstrate[s] the absence of a genuine issue of
material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may
support an assertion that there is no genuine dispute by “showing . . . that [the] adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). Once the
moving party has fulfilled its preliminary burden, the onus shifts to the nonmoving party to raise
the existence of a genuine dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A genuine dispute of material fact exists when
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir. 2013); Gen.
Star Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City
of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549, 553
(2d Cir. 2005). Courts must “constru[e] the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d
The 2010 amendment to the Rule retained the summary judgment standard of former subdivision (c), but replaced
“issue” with “dispute” because the term “better reflects the focus of a summary judgment determination.” Fed. R.
Civ. P. 56 advisory committee’s note on 2010 amendments. Thus, the terms are used interchangeably.
109, 113 (2d Cir. 2005)). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” Anderson, 477 U.S. at 249; see also Kaytor
v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (“The function of the district court in
considering the motion for summary judgment is not to resolve disputed questions of fact.”), nor
is it to determine a witness’s credibility, Anderson, 477 U.S. at 249. Rather, “the inquiry
performed is the threshold inquiry of determining whether there is the need for a trial.” Id. at
“[S]ummary judgment is ordinarily inappropriate where an individual’s intent and state
of mind are implicated.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also ITC Ltd. v.
Punchgini, Inc., 482 F.3d 135, 150 (2d Cir. 2007) (“[I]ntent is always a subjective matter of
inference and thus rarely amenable to summary judgment.” (quoting Saratoga Vichy Spring Co.
v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980))). However, “[s]tatements that are devoid of any
specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for
summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party
“must do more than simply show that there is some metaphysical doubt as to the material facts”);
FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (nonmoving party “may not rely
on conclusory allegations or unsubstantiated speculation” (quoting Scotto v. Almenas, 143 F.3d
105, 114 (2d Cir. 1998))).
III. AGE DISCRIMINATION: DISPARATE TREATMENT
Defendants assert that Plaintiff has insufficient evidence to support her allegations that
Defendants intentionally discriminated against Plaintiff by terminating her employment because
of her age. The ADEA protects employees who are at least 40 years old from adverse
employment actions. 29 U.S.C. § 631(a). Under the ADEA, it is unlawful for an employer, inter
alia, “to discharge any individual or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” Id. § 623(a)(1). Plaintiff asserts a claim of discrimination under the ADEA
against the Hospital only. 5
To establish a prima facie case for age discrimination, a plaintiff must demonstrate
“(1) that she was within the protected age group, (2) that she was qualified for the position,
(3) that she experienced adverse employment action, and (4) that the action 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). The Second Circuit has characterized the
burden of establishing a prima facie case in age discrimination cases as “minimal” and “de
minimis.” Berube v. A&P, 348 F. App’x 684, 686 (2d Cir. 2009) (citing Zimmermann v. Assocs.
First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). Once a plaintiff establishes a prima facie
case, the burden shifts to the defendant, who must offer “a legitimate, nondiscriminatory
rationale for its actions.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Schnabel v. Abramson, 232 F.3d 83, 87
(2d Cir. 2000)). If the defendant offers such a rationale, the plaintiff must prove that the
defendant’s rationale is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804. To
raise a triable issue of fact concerning pretext at the summary judgment stage, “the plaintiff’s
Plaintiff accuses both Defendants of age discrimination under the New York State Human Rights Law. N.Y. Exec.
L. § 296(1)(a) (making it unlawful “[f]or an employer . . . because of an individual’s age . . . to discharge from
employment such individual or to discriminate against such individual in compensation or in terms, conditions or
privileges of employment”). As this language is nearly identical to federal law, the standards governing ADEA
analysis also apply to the New York State Human Rights Law. See Ortega v. N.Y.C. Off-Track Betting Corp., No.
97 Civ. 7582(KMW), 1999 WL 342353, at *3 n.2 (S.D.N.Y. May 27, 1999)).
admissible evidence must show 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 . . . on
discrimination.” Terry, 336 F.3d at 138 (quoting Stern v. Trustees of Columbia Univ., 131 F.3d
305, 312 (2d Cir. 1997)).
The ADEA does not allow for mixed-motive discrimination claims. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 175 (2009). Thus, “a plaintiff must prove that age was the ‘but-for’
cause of the employer’s adverse decision.” Id. at 176; contra 42 U.S.C. § 2000e-2(m) (Title VII
plaintiff establishes discrimination if she demonstrates “that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other factors also
motivated the practice”).
According to Defendants, Plaintiff cannot satisfy the fourth element of the prima facie
case, demonstrating that the circumstances of her termination give rise to an inference of
discrimination. For purposes of a summary judgment motion in a disparate treatment case, “an
ADEA plaintiff who is replaced by a significantly younger worker must offer some evidence of a
defendant’s knowledge as to the significant age discrepancy to support a prima facie inference of
discriminatory intent.” Bucalo, 691 F.3d at 130 (quoting Woodman v. WWOR-TV, Inc., 411 F.3d
69, 90 (2d Cir. 2005)). Here, there is no doubt the Hospital knew that Plaintiff was in fact
replaced by a worker eleven years her junior and not belonging to the age-protected group.
Additionally, there is evidence to suggest the Hospital knew even before announcing the open
position that Plaintiff’s replacement would be younger than Plaintiff. Defendants assert and
Plaintiff testified at her deposition that older nurses who gain seniority in a hospital tend not to
leave, such that a pool of applicants for an open position tends to consist of younger nurses. This
purported fact, if true, supports an inference that the Hospital knew Plaintiff’s replacement
would be younger and undercuts Defendants’ assertion that this supposedly unusual
circumstance in the nurse hiring market should not be deemed sufficient to give rise to an
inference of age discrimination. Therefore, Defendants are incorrect that Plaintiff cannot
establish a prima facie case.
Having determined that Plaintiff has made a prima facie showing of discrimination under
the ADEA against the Hospital, the burden now shifts to Defendants to proffer evidence to
demonstrate Plaintiff’s termination was based on a legitimate, non-discriminatory reason. Here,
Defendants’ evidence demonstrates that Plaintiff repeatedly comported herself in a disrespectful
and confrontational manner toward peers and that she was repeatedly tardy, in violation of the
Hospital’s policies. This showing is supported by documentary evidence from Plaintiff’s
personnel file and the deposition testimony of Zimmermann and non-party John Sanchez, the
Vice President of Human Resources.
The remaining issue, then, is whether Plaintiff has proffered admissible evidence
sufficient to permit a reasonable jury to find that Defendants’ reason for terminating Plaintiff was
a pretext for age discrimination. Plaintiff admits she has no direct evidence of Defendants’
discriminatory animus toward her, but rather relies upon circumstantial evidence. Plaintiff
testified that Defendants discriminated against her based on her age because she was longtenured and had a high salary and older employees tend to have worked longer and have higher
salaries. However, “age and years of service are analytically distinct” such that an employer can
consider one and not the other. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993). Thus,
“[w]hen the employer’s decision is wholly motivated by factors other than age, the problem of
inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is
correlated with age,” as is typical with long tenure and higher salaries. Id.; cf. 29 U.S.C.
§ 623(f)(1) (not unlawful discrimination “where the differentiation [among employees] is based
on reasonable factors other than age”). At her deposition, Plaintiff was unable to explain why
she believed she was being discriminated against because of her age, other than to continually
refer to her years of service and salary. As mixed-motive discrimination claims are not
actionable under the ADEA, Gross, 557 U.S. at 175, any alleged consideration of Plaintiff’s
tenure or salary is insufficient to raise a triable issue of fact concerning whether Defendants’
asserted reasons for Plaintiff’s termination were a pretext for age discrimination.
Plaintiff’s proffer of affidavits to support the contention that Defendants fired her because
of her age is equally insufficient to raise a triable issue of fact. Plaintiff avers in her affidavit that
she heard rumors that the Hospital was trying to force out older nurses with longer tenure and
six-figure salaries, but these rumors are hearsay, Fed. R. Evid. 801(c), and not admissible
evidence, Fed. R. Civ. P. 56(c)(1)(B); Terry, 336 F.3d at 138. Plaintiff also asserts that she
knows some older nurses who were forced out. The affidavit of one fellow nurse, Sonia Marie
Hunter, asserts in conclusory fashion that “upon information and belief” the Hospital targeted
nurses who had worked over 20 years and were over 40 years old, without explaining the
specific information upon which she bases her belief. Bickerstaff v. Vassar Coll., 196 F.3d 435,
452 (2d Cir. 1999). The affidavit of the other fellow nurse, Kathleen Neilsen Auffant
(“Auffant”), claims to have been targeted for unreasonable disciplinary measures and that a
younger nurse was given a more desirable shift. Auffant also asserts that 15 other nurses of
similar age with long tenure and high salaries were forced out for false or trivial reasons, but she
does not provide specific names even though the Hospital created lists of nurses who were
terminated or resigned, and she is otherwise unable to show through her own personal
knowledge the reasons for the terminations of the other nurses. Thus, there is only conjecture.
Id.; FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010). Plaintiff’s proffer fails to
raise a triable dispute of material fact concerning whether Defendants’ reasons for her
termination were pretextual for age discrimination. Accordingly, Defendants’ summary
judgment motion seeking to dismiss Plaintiff’s claim on a disparate treatment theory of liability,
to the extent alleged, is granted.
IV. AGE DISCRIMINATION: DISPARATE IMPACT
Defendants assert that Plaintiff has insufficient evidence to support her allegations of a
disparate impact upon nurses in the age-protected class resulting from some facially neutral
policy or practice. The ADEA allows for recovery under a theory of disparate impact. Smith v.
City of Jackson, 544 U.S. 228, 233–40 (2005). According to the statute, an employer may not
“limit, segregate, or classify his employees in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s age.” 29 U.S.C. § 623(a)(2). This subsection “focuses
on the effects of the action on the employee rather than the motivation for the action of the
employer.” Smith, 544 U.S. at 236. In the ADEA context, to establish a prima facie case of
disparate impact, a plaintiff must (1) show a statistical disparity between age-protected
individuals and younger individuals in employment opportunities or in their status as employees
and (2) identify a specific neutral employment practice which, as applied, causes the disparity.
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656–57 (1989), cited in Smith, 544 U.S. at 240
(holding that Wards Cove formulation still applicable to ADEA disparate impact cases). If a
plaintiff establishes a prima facie case, the burden shifts to the defendant to proffer evidence of a
legitimate business justification for its policy or practice. Wards Cove, 490 U.S. at 659. If the
defendant proffers such evidence, the plaintiff must prove that less discriminatory practices
would achieve the same ends. Wards Cove, 490 U.S. at 660.
Here, there is potentially a genuine dispute of material fact concerning the existence of a
statistical disparity in terminations of older versus younger nurses, but there is no admissible
evidence identifying any Hospital policy or practice causing the disparity. Almost two thirds of
the nurses—14 of 22—terminated for cause from 2010 through 2012 were at least 40 years old.
Eleven of those fourteen were replaced, seven by someone younger but only four by someone
under 40 years old. Based on these figures, it appears Plaintiff can demonstrate the existence of
a statistical disparity. However, the list of nurses employed in Plaintiff’s Unit as of her
termination date shows that 29 of the 34 nurses listed were in the age-protected group and 23
were older than Plaintiff, but she was the only one terminated. These statistics tend to show the
absence of a statistical disparity. Plaintiff also relies upon the list of nurses who voluntarily quit
in 2011 to show a statistical disparity, though she identifies only two as having been forced to
quit. Slightly more than half the nurses who voluntarily quit, 32 of 63, were at least 40 years old;
24 of the 32 were replaced, 21 by someone younger and 18 by someone under 40 years old.
Because Plaintiff fails to offer any explanation for the vast majority of these defections and
certainly offers no evidence to explain them, this second list is insufficient to support her
contention that a statistical disparity exists due to coerced resignations.
Concerning a specific employment practice, Plaintiff does nothing more than allege the
existence of a Hospital-wide policy of terminating highly paid nurses. Plaintiff relies on the
aforementioned rumors and her personal knowledge that three other nurses told her they were
forced out, but has no non-hearsay evidence supporting her contention. Fed. R. Civ. P.
56(c)(1)(B); Terry, 336 F.3d at 138. Moreover, discovery has uncovered no such policy or
practice, as the Hospital produced no documented plans to reduce nursing staff due to budgetary
constraints and there was no testimony concerning such a plan. The best evidence Plaintiff has,
that the Hospital did not replace all the nurses who quit or were terminated, is insufficient for a
trier of fact to reasonably conclude that this failure to replace was due to a policy designed to
shed nurse salary. Of the 22 nurses terminated, only three were on salary making six figures,
whereas an equal number of the 15 replacements were given six-figure salaries. Thus, Plaintiff
is unable to establish a prima facie case of disparate impact caused by a specific practice.
Accordingly, summary judgment on the disparate impact theory of liability must be granted.
V. RETALIATION FOR ENGAGING IN PROTECTED ACTIVITY
Defendants assert that Plaintiff has no evidence showing that under the ADEA
Defendants terminated her employment in retaliation for her statement that she would take legal
action if Zimmermann continued to bully her. It is “unlawful for an employer to discriminate
against any of his employees . . . because such individual . . . has opposed any practice made
unlawful by [the ADEA].” 29 U.S.C. § 623(d). To establish a prima facie case of retaliation,
Plaintiff must demonstrate “(1) participation in a protected activity, (2) that the defendant knew
of the protected activity, (3) an adverse employment action, and (4) a causal connection between
the protected activity and the adverse employment action. Bucalo v. Shelter Island Union Free
Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (internal quotation marks and citations omitted).
Once a plaintiff establishes a prima facie case, the same burden shifting framework applicable to
disparate treatment claims applies to ADEA retaliation claims. Terry v. Ashcroft, 336 F.3d 128,
141 (2d Cir. 2003). 6
This framework also applies to Plaintiff’s state-law retaliation claim, see Boyce v. N.Y.C. Mission Soc’y, 963 F.
Supp. 290, 295 n.3 (S.D.N.Y. 1997), which makes it unlawful “[f]or an employer . . . to discharge, expel or
otherwise discriminate against any person because he or she has opposed any practices forbidden under this article
or because he or she has filed a complaint, testified or assisted in any proceeding under this article,” N.Y. Exec. L.
Defendants assert that Plaintiff did not participate in any protected activity because
Plaintiff’s statement to co-workers that she would take legal action does not constitute opposition
to any purported age discrimination. Defendants reference Plaintiff’s deposition, in which she
testified that she did not tell her co-workers what sort of legal action she had in mind, that she in
fact had no particular type of legal action in mind, that she had not contemplated filing a federal
or state discrimination complaint, that she had not expressed to management that she had some
legal claim against the hospital, and that at most she thought she probably would have an
attorney write a letter to Human Resources addressing her allegedly fabricated violations of
Hospital policy. To be sure, “[t]he law protects employees in the filing of formal charges of
discrimination as well as in the making of informal protests of discrimination, including making
complaints to management.” Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (quoting
Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000)). However, nothing in the record suggests
Plaintiff complained about age discrimination to her co-workers or to management, either
explicitly or implicitly. See McDowell v. T-Mobile USA, Inc., 307 F. App’x 531, 534 (2d Cir.
2009) (finding complaints that promotion paperwork was delayed and that another worker was
not promoted to be insufficient evidence for showing engagement in protected activity), aff’g
No. CV-04-2909, 2007 WL 2816194, at *18 (E.D.N.Y. Sept. 26, 2007). The evidence at most
shows Plaintiff complained of general unfair treatment by allegedly being bullied, which is
insufficient to demonstrate a protected activity. See Dabney v. Christmas Tree Shops, No. 10CV-8734 (CS), 2013 WL 3820668, at *8 (S.D.N.Y. July 24, 2013) (citing Aspilaire v. Wyeth
Pharm., Inc., 612 F. Supp. 2d 289, 308–09 (S.D.N.Y. 2009) (“The onus is on the speaker to
clarify to the employer that he is complaining of unfair treatment due to his membership in a
protected class and that he is not complaining merely of unfair treatment generally. . . . While
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