Rimpel v. Advantagecare Physicians, P.C.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

BERNARD RIMPEL, M.D.,

MEMORANDUM & ORDER

Plaintiff 17-CV-6867 (NGG) (PK)

-against-

ADVANTAGECARE PHYSICIANS, P.C.,

Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Bernard Rimpel, a physician, brings this employment discrim-

ination action against his former employer, AdvantageCare Physicians,

P.C. (“ACP” or “Defendant”). (Compl. (Dkt. 1).) Plaintiff alleges that ACP

unlawfully discriminated against him because of his age in violation of

the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.

§ 621 et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y.

Exec. Law § 296 et seq.; and the New York City Human Rights Law (“NY-

CHRL”), N.Y.C. Admin. Code § 8-101 et seq.

Defendant moves for summary judgment on all claims. (Def. Mot. for

Summ. J. (Dkt. 35); Mem. in Supp. of Mot. for Summ. J. (“Mem.”) (Dkt.

39); Reply (Dkt. 44).) Plaintiff opposes the motion. (Mem. in Opp. to

Mot. for Summ. J. (“Opp.”) (Dkt. 43).) For the reasons set forth below,

Defendant’s motion is GRANTED with prejudice.

BACKGROUND1

Defendant ACP is a medical practice that operates multiple facilities

throughout the New York metropolitan area, including the Empire

1 The court constructs the following statement of facts from the parties’ Local

Rule 56.1 Statements and the admissible evidence they submitted. Except

where otherwise noted, the following facts are undisputed. Where the parties

allege different facts, the court notes the dispute and credits the Plaintiff’s ver-

sion if it is supported by evidence in the record. All evidence is construed in the

Medical Center in Brooklyn. (Def.’s R. 56.1 Stmt. (“Def. 56.1”) (Dkt.

36) ¶¶ 1-2.) Plaintiff began working at the Empire Medical Center in

or around 1990, before it was operated by ACP. (Tr. of Dec. 6, 2018

Dep. of Pl. (“Pl. Tr.”) (Dkt. 40) at 21:17-22:11.) In or around October

2012, ACP’s predecessor, City Care Physician Practice, P.C. (“City

Care”), acquired the Central Brooklyn Medical Group, which oper-

ated the Empire Medical Center, and Plaintiff became an employee

of City Care. (Pl.’s R. 56.1 Stmt. (“Pl. 56.1”) ¶ 2; Def. 56.1 ¶ 2.) In No-

vember 2013, City Care reorganized as ACP. (Pl. 56.1 ¶ 2; Def. 56.1 ¶

2.)

Plaintiff’s employment relationship with ACP began in November

2013, pursuant to an October 3, 2012 agreement between Plaintiff

and City Care. (Pl. 56.1 ¶ 3; Def. 56.1 ¶ 5; Employment Agreement

(“Agreement”) (Dkt. 37-3) at 1.) At the time Plaintiff became an em-

ployee of ACP he was 62 years old. (Def. 56.1 ¶ 5.) Plaintiff’s

employment agreement provided that his employment could be

“terminated by [Defendant] at any time after the first calendar year,

by giving sixty (60) days prior written notice to” Plaintiff and did not

require that Plaintiff’s employment be terminated only for cause.

(Agreement at 8; Def. 56.1 ¶¶ 4, 25.) ACP maintained specific anti-

discrimination policies during Plaintiff’s employment. (Def. 56.1 ¶

30.) Plaintiff practiced as a general surgeon for the duration of his

employment at ACP. (Id. ¶ 7.)

Beginning in mid-to-late 2014, ACP’s Human Resources Department

(“HR”) received complaints from various employees about Plaintiff’s

treatment of staff. (Id. ¶ 15.) An HR employee, Nicolle Comefero,

conducted an investigation of the complaints that involved inter-

views with eight other employees. (Id. ¶ 16; HR Investigation Notes

(Dkt. 45-1).) In those interviews, multiple employees described inci-

dents in which Plaintiff yelled or cursed at other ACP staff. (HR

light most favorable to the non-moving party with all “reasonable inferences”

drawn in its favor. ING Bank N.V. v. M/V Temara, IMO No. 9333929, 892 F.3d

511, 518 (2d Cir. 2018).

Investigation Notes.) At the conclusion of the investigation, Comefero

determined that Plaintiff had exhibited behavioral issues and had

failed to follow certain office protocols, including check-in and billing

procedures. (Def. 56.1 ¶ 16; Decl. of Nicolle Comefero (“Comefero

Decl.”) (Dkt. 26) ¶ 6.) Plaintiff disputes the validity of the complaints.

(Decl. of Pl. (“Pl. Decl.”) (Dkt. 41) ¶ 9.) However, Plaintiff testified that

he raised his voice at a nurse sometime in 2015 and is aware that the

incident was the subject of multiple complaints. (Pl. Tr. at 86:24-

90:24.) Plaintiff also does not dispute that he occasionally failed to

follow certain check-in and data entry procedures. (Id. at 104:12-14;

125:12-18.)

In an effort to address Plaintiff’s performance and behavioral issues,

Defendant required Plaintiff to participate in a 60-day Performance

Improvement Plan (“PIP”) beginning in August 2015. (Def. 56.1 ¶ 18.)

The PIP required Plaintiff to participate in several one-on-one Emo-

tional Intelligence Training sessions with a professional trainer

provided by ACP. (Id. ¶ 19; Tr. of Jan. 31, 2019 Dep. of Nicolle

Comefero (“Comefero Tr.”) (Dkt. 40) at 42:9-12.) Plaintiff completed

the training. (Def. 56.1 ¶ 22.) Comefero testified that she received

negative feedback from the trainer with respect to Plaintiff’s partici-

pation in the trainings, including that he had been “argumentative

and resistant.” (Id. ¶ 22; Comefero Tr. at 49:21-23.) Plaintiff was never

informed that there were any issues with his participation and dis-

putes the validity of this characterization. (Pl. 56.1 ¶ 18, 22.)

Comefero testified that HR continued to receive complaints about

Plaintiff’s behavior in 2016. (Def. 56.1 ¶ 23; Comefero Decl. ¶ 8.)

Plaintiff was not made aware of these complaints. (Pl. 56.1 ¶ 23; Pl.

Decl. ¶ 13.) Additionally, Defendant produced an internal memoran-

dum indicating that Plaintiff had continued to struggle to follow

office protocols in 2016 and had failed an internal audit in February

2016.2 (Def. 56.1 ¶ 24; Audit Summary (Dkt. 37-10) at ECF p. 392.)

Plaintiff disputes Defendant’s contention that he failed the February

2016 audit. (Pl. 56.1 ¶ 24; Pl. Decl. ¶¶ 21, 22; Audit Report (Dkt. 41)

at ECF p. 829.)

Plaintiff testified that Allen Boxbaum, who at the time was ACP’s Vice

President of Operations, made three sets of remarks in 2016 con-

cerning either Plaintiff’s age or the ages of prospective ACP

employees. (Def. 56.1 ¶ 9; Pl. Tr. at 40:24-45:17.) According to Plain-

tiff, all three conversations initially concerned ACP’s need to hire a

urologist to work at the Empire Medical Center following the depar-

ture of a physician in that specialty area. (Pl Tr. at 41:8-12, 42:24-

43:7, 44:7-13.) In the first conversation, according to Plaintiff’s testi-

mony, he told Boxbaum that ACP needed to hire a urologist and

Boxbaum responded, “no, we are not hiring any older guy, we want

young residents because they are much cheaper.” (Id. at 41:8-14.)

In the second conversation, which according to Plaintiff occurred

about a month after the first conversation and was essentially dupli-

cative of the first exchange, Plaintiff recommended to Boxbaum that

ACP hire certain “senior urologists,” of Plaintiff’s approximate age,

who could “come to cover the urology clinic” at Empire Medical Cen-

ter, to which Boxbaum allegedly responded, “no, no. We don’t want

any older guy. We want resident[s], find me young residents.” (Id. at

42:19-22; 42:42-43:10, 43:21-24.) Boxbaum testified that in his recol-

lection of the conversation with Plaintiff, he asked Plaintiff to pass

along the urologists’ resumes but noted that ACP was looking to hire

urologists with “robotic fellowship certifications,” which Plaintiff rep-

resented that his suggested candidates did not possess. (Tr. of Jan.

31, 2019 Dep. of Allen Boxbaum (“Boxbaum Tr.”) (Dkt. 40) at 56:4-

57:11.)

2 ACP requires its physicians to undergo annual audits “to determine whether

the physician is engaged in appropriate medical decision making, appropriate

coding/billing, and appropriate documentation.” (Comefero Decl. ¶ 8.)

The third conversation occurred in May or June 2016, at a lunch fol-

lowing a monthly meeting at Empire Medical Center. (Pl. Tr. at 44:7-

45:5.) Plaintiff testified that “[a]gain [he] approach[ed] [Boxbaum]

about the urology problem” and Boxbaum responded, “no, no. Don’t

mention that. How about you? When are you retiring?” (Id. at 44:10-

13.) Boxbaum testified that he never discussed retirement with Plain-

tiff. (Boxbaum Tr. at 59:21-23.)

On October 6, 2016, when Plaintiff was 65 years old, Defendant noti-

fied Plaintiff that his employment would be terminated without

cause effective December 6, 2016. (Def. 56.1 ¶ 26; Pl. 56.1 ¶ 20.)

Comefero testified that, while Plaintiff was terminated without cause

pursuant to his employment agreement, the decision was based on

Plaintiff’s continuing performance and behavioral issues. (Def. 56.1 ¶

28; Comefero Decl. ¶ 9.) Boxbaum participated in the meeting in

which Plaintiff was informed of the termination, but he was not oth-

erwise involved in the decision to terminate Plaintiff’s employment.

(Def. 56.1 ¶ 14; Pl. 56.1 ¶ 11.) Plaintiff submitted surveys suggesting

that he was well regarded by patients at the time of the termination.

(Patient Surveys (Dkt. 41) at ECF p. 824-827.)

Defendant did not hire a new general surgeon to replace Plaintiff.3

(Def. 56.1 ¶ 37.) Defendant retained the only other general surgeon

at the Empire Medical Center, Dr. Brian Hall, who was 41 years old at

the time of Plaintiff’s termination and whom Plaintiff had trained.

(Def. 56.1 ¶ 29; Pl. Tr. at 133:7-9.) According to Plaintiff, Dr. Hall took

over the care of Plaintiff’s patients and called Plaintiff regularly for

advice regarding procedures. (Pl. 56.1 ¶ 29; Pl. Tr. at 133:7-13.) Dr.

3 Plaintiff contends that ACP “replaced” him with Dr. Brian Hall, but Dr. Hall was

hired prior to Plaintiff’s termination and worked at ACP during Plaintiff’s tenure.

(Pl. 56.1 ¶¶ 34, 37.) Plaintiff also alleges that ACP hired three younger surgeons

six months prior to his termination. (Compl. ¶¶ 28-29.) However, Plaintiff offers

no evidence to support this claim.

Hall’s employment was later terminated by ACP.4 (Def. 56.1 ¶ 29; Pl.

56.1 ¶ 29.)

A few months after Plaintiff’s employment was terminated, Defend-

ant effectuated a company-wide Reduction-in-Force (“RIF”) with an

intent to “eliminat[e], among other things, general surgery practices

and keep[] certain specialty practices.” (Def. 56.1 ¶ 35.) The RIF re-

sulted in the termination of 25 physicians, including two general

surgeons. (RIF Spreadsheet (Dkt. 37-9) at ECF p. 385-390.) Fifteen of

the terminated physicians were age 60 or older. (Id.) Three were ages

50 to 59, four were ages 40 to 49, and three were ages 30 to 39. (Id.)

The two general surgeons who were terminated were 41 and 75. (Id.)

LEGAL STANDARD

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. Pro. 56(a). “The role of the

court is not to resolve disputed issues of fact but to assess whether

there are any factual issues to be tried. In determining whether sum-

mary judgment is appropriate, this [c]ourt will construe the facts in the

light most favorable to the non-moving party and must resolve all am-

biguities and draw all reasonable inferences against the movant.” Brod

v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011). 5 “A ‘material’ fact is one

capable of influencing the case’s outcome under governing substan-

tive law, and a ‘genuine’ dispute is one as to which the evidence would

permit a reasonable juror to find for the party opposing the motion.”

Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A party may not rely on

4 Defendant characterizes the timing of Dr. Hall’s termination as “shortly after”

Plaintiff’s termination. Plaintiff alleges that Dr. Hall was terminated in late 2018.

(Def. 56.1 ¶ 29; Pl. 56.1 ¶ 29.)

5 When quoting cases, and unless otherwise noted, all citations and quotation

marks are omitted and all alterations are adopted.

mere speculation or conjecture as to the true nature of the facts to

overcome a motion for summary judgment,” and “[m]ere conclusory

allegations or denials . . . cannot by themselves create a genuine issue

of material fact where none would otherwise exist.” Hicks v. Baines,

593 F.3d 159, 166 (2d Cir. 2010).

It is “beyond cavil that summary judgment may be appropriate even

in the fact-intensive context of discrimination cases.” Abdu-Brisson v.

Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001). “[E]ven in the discrim-

ination context, a plaintiff must provide more than conclusory

allegations of discrimination to defeat a motion for summary judg-

ment.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

Nonetheless, the Second Circuit has “emphasized that trial courts

must be especially chary in handing out summary judgment in discrim-

ination cases, because in such cases the employer’s intent is ordinarily

at issue.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir.

1996); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d

62, 71 (2d Cir. 2000).

DISCUSSION

A. Legal Framework

In analyzing employment discrimination claims brought under the

ADEA and NYSHRL, courts employ the three-step burden-shifting

framework set forth by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). See, e.g., Bucalo v. Shelter

Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (applying

McDonnell Douglas framework to age discrimination claims under the

ADEA); Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (ap-

plying McDonnell Douglas framework to NYSHRL claims). Under that

framework, the plaintiff bears the initial burden of establishing a prima

facie case of employment discrimination by a preponderance of the

evidence. If the plaintiff succeeds, the burden shifts to the defendant,

who must articulate a legitimate, nondiscriminatory basis for the ad-

verse employment action. If the defendant carries its burden at the

second stage, the plaintiff then bears the burden of establishing that

the reason proffered by the defendant is a pretext for discrimination,

rather than the true reason for the adverse employment action. See

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).6

As explained below, the court finds that there is a genuine dispute as

to whether Plaintiff establishes a prima facie case of discrimination at

the first step of the analysis, that Defendant carries its burden of pro-

duction at the second step, and that Plaintiff cannot establish pretext

at the third step. Accordingly, because Plaintiff cannot prevail on his

discrimination claims, the court grants Defendant’s motion for sum-

mary judgment.

B. Prima Facie Case

“Under the McDonnell Douglas scheme, establishment of the prima

facie case in effect creates a presumption that the employer unlaw-

fully discriminated against the employee.” St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993). “To establish a prima facie case, a

plaintiff with an age discrimination claim must show (1) that she was

within the protected age group, (2) that she was qualified for the po-

sition, (3) that she experienced adverse employment action, and (4)

that the action occurred under circumstances giving rise to an infer-

ence of discrimination.” Bucalo, 691 F.3d at 129. These are “minimal”

6 The Second Circuit has explained that “[w]hile it is unclear whether McDonnell

Douglas . . . appl[ies] to NYCHRL claims and, if so, to what extent it applies, the

question is also less important because the NYCHRL simplified the discrimination

inquiry: the plaintiff need only show that her employer treated her less well, at

least in part for a discriminatory reason.” Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013). Thus, summary judgment for an

employer on a plaintiff’s NYCHRL claim is appropriate “only if the record estab-

lishes as a matter of law that discrimination played no role in [the employer’s]

actions.” Id. (emphasis in original). As explained below, the court finds that sum-

mary judgment for Defendant is warranted with respect to Plaintiff’s NYCHRL

claim, as well as his ADEA and NYSHRL claims.

requirements, and the burden they impose on a plaintiff is “not oner-

ous.” Id. at 128.

There is no question that Plaintiff was within the age group protected

by the statutory provisions under which he brings his claim. The

ADEA’s protections apply to “individuals who are at least 40 years of

age.” 29 U.S.C. § 631(a). The NYSHRL prohibits age discrimination in

employment against “an individual eighteen years of age or older.” N.Y.

Exec. Law § 296(3-a). The NYCHRL bars discrimination on the basis of

an employee’s “actual or perceived age” regardless of the age of the

employee. N.Y.C. Admin. Code § 8-107(1)(a). Plaintiff, who was 65

years old at the time he was terminated by Defendant, is plainly within

the protected class under each of these statutory schemes. The par-

ties do not dispute that Plaintiff was qualified to work as a general

surgeon, or that Defendant’s termination of Plaintiff’s contract consti-

tuted an adverse employment action. Thus, Plaintiff can establish the

first three elements of a prima facie case of age discrimination.

“[A]n inference of discriminatory intent may be derived from a variety

of circumstances, including, but not limited to: the employer’s contin-

uing, after discharging the plaintiff, to seek applicants from persons of

the plaintiff’s qualifications to fill that position; or the employer’s crit-

icism of the plaintiff’s performance in [] degrading terms; or its

invidious comments about others in the employee’s protected group;

or the more favorable treatment of employees not in the protected

group; or the sequence of events leading to the plaintiff’s discharge.”

Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (superseded

on other grounds). In the context of age discrimination claims, an in-

ference of discrimination arises, for example, when the plaintiff is

“replaced by someone substantially younger.” Graves v. Finch Pruyn &

Co., Inc., 457 F.3d 181, 187 (2d Cir. 2006).

Plaintiff contends that three sets of circumstances surrounding his ter-

mination give rise to an inference of discrimination. First, following his

termination his workload was reassigned to Dr. Hall, the other general

surgeon at Brooklyn Medical Center, who was more than two decades

younger than Plaintiff. Second, Boxbaum’s alleged remarks suggested

an interest in Plaintiff’s retirement plans and a preference for hiring

younger physicians. Third, the majority of the physicians who were ter-

minated as part of ACP’s RIF, which occurred shortly after Plaintiff’s

termination, were at least 60 years old.

Dr. Hall was not specifically hired or promoted to fill the position va-

cated by the termination of Plaintiff’s employment. Rather, Plaintiff

and Dr. Hall worked together at Empire Medical Center during the lat-

ter part of Plaintiff’s tenure. (Def. 56.1 ¶ 29.) Nonetheless, Plaintiff

alleges that Dr. Hall “replaced” him and was “put . . . in charge of [his]

patients.” (Pl. Tr. at 133:7-13.) At least one court in this circuit has

found that the redistribution of a terminated employee’s work among

multiple younger colleagues is an “unexceptional circumstance” that

is “insufficient to create an inference of discrimination.” Delaney v.

Bank of Am. Corp., 908 F. Supp. 2d 498, 505 (S.D.N.Y. 2012). Here, con-

struing the facts in the light most favorable to Plaintiff, the

redistribution of Plaintiff’s work to a single younger colleague, rather

than to a collection of younger colleagues, is slightly more probative

of discrimination than the “unexceptional circumstance” in Delaney. A

jury could reasonably conclude, on these facts, that Dr. Hall’s absorp-

tion of Plaintiff’s workload made him Plaintiff’s de facto replacement

and therefore gives rise to an inference of age discrimination.

The alleged remarks made by Boxbaum to Plaintiff bolster the court’s

conclusion that a genuine issue of material fact exists as to Plaintiff’s

ability to establish an inference of discrimination. Remarks regarding

a plaintiff’s age or suggesting an employer’s preference for younger

workers may give rise to an inference that the plaintiff’s termination

was motivated by age discrimination, though “the more remote and

oblique the remarks are in relation to the employer’s adverse action,

the less they prove that the action was motivated by discrimination.”

Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (ab-

rogated on other grounds). Thus, “[f]or example, remarks made by

someone other than the person who made the decision adversely af-

fecting the plaintiff may have little tendency to show that the decision-

maker was motivated by the discriminatory sentiment expressed in

the remark.” Id.; see also Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162-

63 (2d Cir. 1998) (finding that remarks supported an inference of dis-

crimination where they were made by a company executive, rather

than “by random coworkers who were uninvolved in the decisionmak-

ing process”).

While Boxbaum was not Plaintiff’s direct supervisor and was not in-

volved in the decision to terminate Plaintiff, he was an executive-level

employee at ACP, and he attended the meeting at which Plaintiff was

informed of his termination. (Def. 56.1 ¶¶ 11-14; Pl. 56.1 ¶¶ 11-14.) A

jury could reasonably conclude on these facts that Boxbaum was not

merely a “random coworker[]” whose views were irrelevant to the de-

cision to terminate Plaintiff, see Kirsch, 148 F.3d at 162, but rather

someone whose views may have informed the adverse employment

decision, even though the decision was not one for which he bore di-

rect responsibility.

The reassignment of Plaintiff’s work to a younger physician and the

age-related remarks made by Boxbaum, taken together, create a gen-

uine issue of material fact as to whether the circumstances

surrounding Plaintiff’s termination give rise to an inference of age dis-

crimination. Viewed in the light most favorable to Plaintiff, a jury might

reasonably conclude either that Plaintiff has or has not carried his ini-

tial burden of establishing a prima facie case. Accordingly, the court

declines to grant summary judgment for Defendant on the theory that

Plaintiff cannot establish a prima facie case.7

7 Plaintiff also claims that the RIF that occurred after his termination supports an

inference that he was fired because of his age. Because Plaintiff was not termi-

nated in connection with the RIF, the RIF is not particularly probative of the

reasons for Plaintiff’s termination. Moreover, “claims arising from the results of

a firm’s force reduction will generally not lie where the record demonstrates that

C. Nondiscriminatory Justification

“[A] plaintiff’s demonstration of her prima facie case shifts the burden

of production to the defendant, who must produce evidence that the

adverse employment actions were taken for a legitimate, nondiscrim-

inatory reason.” Bucalo, 691 F.3d at 132. “The defendant need not

persuade the court that it was actually motivated by the proffered rea-

sons.” Burdine, 450 U.S. at 254. To carry its burden, the defendant

“must clearly set forth, through the introduction of admissible evi-

dence, the reasons for the plaintiff’s rejection,” such that the

explanation is “legally sufficient to justify a judgment for the defend-

ant” and “frame[s] the factual issue with sufficient clarity so that the

plaintiff will have a full and fair opportunity to demonstrate pretext.”

Id. at 255-56.

Defendant argues that it terminated Plaintiff’s employment due to

“behavioral issues and a failure to follow important office protocols.”

(Mem. at 6.) Defendant’s claim is corroborated by documentary and

testimonial evidence that is not in dispute. Comefero testified that

ACP received “a lot of complaints from the staff” regarding Plaintiff’s

behavior, and that a subsequent investigation by ACP’s HR staff yielded

the conclusion that Plaintiff “did have behavioral issues.” (Comefero Tr.

at 29:4-7, 31:20-22.) She also testified that while Plaintiff completed

the emotional intelligence training that ACP required of him, she re-

ceived feedback from the trainer that he was “very argumentative and

resistant.” (Id. at 49:20-23.) Additionally, Comefero testified that she

continued to receive complaints from ACP staff regarding Plaintiff’s be-

havior in 2016, following Plaintiff’s completion of the PIP. (Comefero

Decl. ¶ 8.) Documentary evidence appears to corroborate Comefero’s

the reorganization was a business decision made on a rational basis.” Deebs v.

Alstom Transp., Inc., 346 F. App’x 654, 657 (2d Cir. 2009). Here, the record sug-

gests that the primary purpose of the RIF was ACP’s business decision to

prioritize specialty practices over general surgery practices. (Def. 56.1 ¶ 35.) The

RIF therefore does not support an inference of a discriminatory motive for Plain-

tiff’s termination.

testimony. An ACP HR document from December 10, 2014 summa-

rizes interviews about Plaintiff’s behavior with ACP staff members,

several of whom described behavior that included yelling and cursing

at colleagues. (HR Investigation Notes at ECF p. 896-902.) Comefero

also testified that Plaintiff failed to follow office protocol, including by

failing to comply with required scheduling, billing, and documentation

practices. (Comefero Tr. at 30:23; Comefero Decl. ¶¶ 6, 8.) Documen-

tary evidence appears to corroborate Defendant’s claim that Plaintiff

had recurring issues complying with certain aspects of office protocol.

(See Audit Summary at ECF p. 392.)

Defendant’s evidence that Plaintiff exhibited—or, at a minimum, was

perceived by colleagues and administrators as exhibiting—volatile and

aggressive behavior and poor adherence to office protocols is suffi-

cient to satisfy its burden of production. The alleged issues with

Plaintiff’s behavior and performance constitute a “legitimate, nondis-

criminatory reason” for his termination. Bucalo, 691 F.3d at 132.

Because the evidence produced by Defendant is “admissible evidence

which would allow the trier of fact rationally to conclude that the em-

ployment decision [was] not [] motivated by discriminatory animus,”

“the employee’s prima facie case of discrimination [is] rebutted.” Bur-

dine, 450 U.S. at 257.

D. Pretext

At the third stage of the McDonnell Douglas inquiry, the plaintiff “may

no longer simply rely on having made out a prima facie case” and the

court, in deciding whether to grant summary judgment, must “deter-

mine, by looking at the evidence [the plaintiff] has proffered and the

counter-evidence [the defendant] has presented, whether [the plain-

tiff] has raised sufficient evidence upon which a reasonable jury could

conclude by a preponderance of the evidence that [his] age was a ‘but

for’ cause of the [the defendant’s] decision to fire [him].” Gorzynski v.

JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). In so deciding,

“it is important to consider whether the explanations that [the defend-

ant] gave for [the plaintiff’s] firing were pretextual.” Id.

To prevail on a claim brought under the ADEA, a plaintiff “must prove

by a preponderance of the evidence (which may be direct or circum-

stantial), that age was the ‘but-for’ cause of the challenged employer

decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 177-78 (2009).8 New

York courts have not definitively resolved whether a plaintiff must es-

tablish that age was the ‘but-for’ cause to prevail on a claim under the

NYSHRL. See, e.g., DeKenipp v. State, 949 N.Y.S.2d 279, 282 (3d Dep’t

2012). However, because “[t]he law governing ADEA claims has been

held to be identical to that governing claims made under the

[NYSHRL],” the Second Circuit has “assume[d], without deciding, that

the Supreme Court’s Gross decision affects the scope of the [NYSHRL]

law as well as the ADEA.” Gorzynski, 596 F.3d at 105 n.6. Claims

brought under the NYCHRL must be analyzed “separately and inde-

pendently from any federal and state law claims, construing the

NYCHRL’s provisions broadly in favor of discrimination plaintiffs, to the

extent that such a construction is reasonably possible.” Mihalik, 715

F.3d at 109. A plaintiff may defeat a defendant’s motion for summary

judgment on NYCHRL claims by establishing that a question of fact ex-

ists as to whether discrimination played any role in the adverse

employment action. See id. at 110 n.8.

Here, no reasonable jury could conclude by a preponderance of the

evidence that Plaintiff’s termination was partially motivated by age

discrimination, let alone that age discrimination was the “but-for”

cause of his termination. Plaintiff’s sole evidence that Defendant was

motivated by discriminatory animus is Plaintiff’s own testimony about

8 Prior to the Supreme Court’s decision in Gross, claims under the ADEA were

analyzed similarly to employment discrimination claims brought under Title VII,

such that at the final stage of the McDonnell Douglas inquiry “the employee

could prevail if the evidence, viewed in the light most favorable to the plaintiff,

would permit a jury to find that her dismissal was motivated at least in part by

age discrimination.” Gorzynski, 596 F.3d at 106. In Gross, the Supreme Court clar-

ified that under the ADEA age must be “‘the ‘but-for’ cause of the challenged

adverse employment action’ and not just a contributing or motivating factor.”

Id. (quoting Gross, 557 U.S. at 180).

three sets of alleged comments by Boxbaum respecting or alluding to

physicians’ ages: one in which Boxbaum asked Plaintiff when he

planned to retire and two in which Boxbaum indicated a preference

for hiring younger urology residents to older urologists. (Pl. Tr. at 41:4-

45:10.) “In determining whether a remark is probative” in an employ-

ment discrimination claim, courts in this circuit consider four factors,

none of which are dispositive: “(1) who made the remark (i.e., a deci-

sion-maker, 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 could view

the remark as discriminatory); and (4) the context in which the remark

was made (i.e., whether it was related to the decision-making pro-

cess).” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).

All of the allegedly probative remarks were made by Boxbaum, ACP’s

Vice President of Operations, who—as discussed above—was neither

Plaintiff’s supervisor nor directly involved in the decision to terminate

Plaintiff’s employment, but who held a management-level position

and was involved in communicating to Plaintiff the news of his termi-

nation. Accordingly, while Boxbaum’s relationship to Plaintiff and

involvement in the decision-making process do not render his remarks

particularly probative, they also do not wholly preclude the possibility

that the remarks might have probative value. As for timing, Plaintiff

alleges that all three sets of remarks were made in 2016, and that the

third remark was made in May or June of that year. (Pl. Tr. at 41:24-

42:13, 43:21-25, 44:7-18.) Thus, all of the remarks were made less

than a year prior to October 6, 2016, when Plaintiff was notified of the

termination, but not within the three months immediately preceding

that event. The timing of the remarks tends to minimize rather than

amplify their probative value. Compare Pierre v. Air Serv Sec., No. 14-

cv-5915 (MKB), 2016 WL 11396816, at *9 (E.D.N.Y. July 28, 2016) (find-

ing that remark made “four months prior to [p]laintiff’s termination”

was not probative, due in part to “the time that elapsed between [the]

comment and [p]laintiff’s termination”) and Sethi v. Narod, 12 F. Supp.

3d 505, 543 (E.D.N.Y. 2014) (finding that timing of remark made “three

months prior to [p]laintiff’s suspension . . . supports a finding that the

remarks are not probative of discriminatory animus”) with Fried v. LVI

Servs., Inc., 500 F. App’x 39, 41 (2d Cir. 2012) (finding that remark made

“less than six weeks prior to [the plaintiff’s] termination” “can bear

some weight in demonstrating discriminatory bias”).

The content and context of Boxbaum’s remarks regarding potential

urologist hires further suggest that those remarks are not probative of

Defendant’s intent in terminating Plaintiff’s employment. The remarks

did not directly concern Plaintiff’s own age or employment status; as

such, they are at best circumstantial evidence of ACP’s intent, insofar

as they suggest that Boxbaum specifically or ACP generally preferred

younger physicians to older ones. Moreover, Plaintiff himself testified

that Boxbaum cited the lower costs of hiring younger physicians as the

basis for his alleged hiring preference. (Pl. Tr. at 41:12-23, 43:10-20.)

An employer’s “concern with the elevated costs of senior employees

does not constitute age discrimination.” James v. New York Racing

Ass’n, 233 F.3d 149, 153 (2d Cir. 2000); see also Hazen Paper Co. v. Big-

gins, 507 U.S. 604, 611 (1993) (distinguishing decisions based on age

from those based on a “motivating factor [that] is correlated with age,”

such as pension status). Thus, Plaintiff’s own testimony undermines

his claim that Boxbaum’s remarks indicate that age-based discrimina-

tory animus was the cause of his termination.

Nor do the content and context of Boxbaum’s remark about Plaintiff’s

theoretical retirement plans render it particularly probative of Defend-

ant’s intent. Plaintiff alleges that during a lunch that followed a

monthly meeting, he approached Boxbaum to discuss the open urol-

ogist positions and Boxbaum responded, “no, no. Don’t mention that.

How about you? When are you retiring?” (Pl. Tr. at 44:7-45:10.) While

this remark invoked the subject of Plaintiff’s employment status at

ACP and therefore warrants some weight in assessing Defendant’s in-

tent, no reasonable jury could conclude based exclusively or primarily

on this casual, offhand remark that age discrimination motivated De-

fendant’s decision to terminate Plaintiff’s employment. See, e.g.,

Fried, 500 F. App’x at 41 (concluding that a CEO’s statement mention-

ing the plaintiff’s age and asking “how long [he] expect[s] to work . . .

can bear some weight in demonstrating discriminatory bias” but “can-

not bear th[e] weight” necessary to establish that age bias was the

cause of plaintiff’s termination).

Moreover, Plaintiff fails to provide sufficient evidence to rebut Defend-

ant’s contention that behavior and performance issues were the

actual reason for terminating Plaintiff’s employment. Plaintiff disputes

the claim that he failed his February 2016 internal audit; resolving that

factual dispute in Plaintiff’s favor arguably suggests that he had im-

proved his compliance with certain office protocols following his

completion of the PIP. But even if that is the case, Plaintiff provides no

evidence other than his own testimony to refute Defendant’s well doc-

umented claim that Plaintiff exhibited a pattern of volatile and

aggressive behavior, which yielded complaints from his colleagues

both before and after his participation in the PIP. “Merely disagreeing

with [an employer’s] assessment of work performance . . . is insuffi-

cient to raise a triable issue of fact regarding pretext.” Iverson v.

Verizon Comms., No. 08-cv-8873 (SAS), 2009 WL 3334796, at *5

(S.D.N.Y. Oct. 13, 2009). While Plaintiff may be sincere in his belief that

he did not behave towards colleagues in a hostile or inappropriate

manner, the weight of the evidence contradicts such a belief. On this

record, no reasonable jury could conclude by a preponderance of the

evidence that Plaintiff’s putative behavioral issues were mere pretext

for age discrimination.

Finally, Plaintiff argues that Defendant’s proffered justifications are

clearly pretextual because Defendant informed Plaintiff that the ter-

mination of his employment was “without cause.” (Opp. at 13, 16-17,

19.) Plaintiff misconstrues Defendant’s representation that the termi-

nation of Plaintiff’s employment was “without cause” as a concession

that Plaintiff’s termination was “not based on performance o[r] other

issues.” (Pl. 56.1 ¶ 27.) But the fact that Plaintiff, an at-will employee,

was terminated “without cause” does not preclude the possibility that

the termination was motivated by a legitimate, nondiscriminatory ra-

tionale, or even raise a question of fact as to the genuineness of the

performance-related rationales articulated by Defendant. The termi-

nation of an at-will employee’s contract need not be designated as “for

cause” in order to be grounded in rational, nondiscriminatory reasons,

and a termination designated as “without cause” is not definitionally

lacking in legitimate justifications.

Because Plaintiff cannot establish a genuine issue of material fact as

to whether Defendant’s justifications for his termination are pre-

textual, he also cannot establish by a preponderance of the evidence

that age discrimination motivated the termination of his employment.

For that reason, Defendant’s motion for summary judgment is

granted.

CONCLUSION

For the reasons stated above, Defendant’s (Dkt. 25) motion for sum-

mary judgment is granted with prejudice. The Clerk of the Court is

respectfully DIRECTED to close the case.

SO ORDERED.

Dated: Brooklyn, New York

September 14, 2020

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge