Puleo v. Masonic Medical Research Institute

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

COLLEEN T. PULEO,

Plaintiff,

v. 6:20-cv-1593

MASONIC MEDICAL RESEARCH INSTITUTE;

JOHN S. ZIELINSKI; MARIA I. KONTARIDIS,

Defendants.

_________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff Colleen T. Puleo (“Plaintiff”) commenced this employment discrimination

action against Defendants Masonic Medical Research Institute (“MMRI”), John S.

Zielinski, and Maria I. Kontaridis (collectively, “Defendants”). Plaintiff claims that she

was discriminatorily and retaliatorily terminated because of her age and sex in in

violation of the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil

Rights Act of 1964 (“Title VII”), and the New York State Human Rights Law (“NYSHRL”).

Defendants move for summary judgment, ECF No. 41, which Plaintiff opposes,

ECF No. 44, Defendants file a reply, ECF No. 52, and Plaintiff files a sur-reply, ECF No.

53. For the reasons that follow, Defendants’ motion is granted.

II. STANDARD OF REVIEW

The parties have evinced their understanding of the well-settled standards for

deciding summary judgment motions in Title VII, ADEA, and NYSHRL discrimination

and retaliation actions, including application of the three-part burden-shifting framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 36

L.Ed.2d 668 (1973). Therefore, these standards will not be repeated.

Suffice it to say that where, as here, the intent of a party is in question but there

is no direct evidence of discrimination, the Court must carefully examine the reasonable

inferences that could be drawn from the totality of the circumstantial evidence and be

cautious about granting summary judgment. Schiano v. Quality Payroll Sys., 445 F.3d

597, 603 (2d Cir. 2006). Nonetheless, “[i]t is now beyond cavil that summary judgment

may be appropriate even in the fact-intensive context of discrimination cases.” Abdu–

Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001); see Schiano, 445 F.3d

at 603 (“[S]ummary judgment remains available for the dismissal of discrimination

claims in cases lacking genuine issues of material fact.”) (quoting McLee v. Chrysler

Corp., 109 F.3d 130, 135 (2d Cir.1997)).

III. BACKGROUND1

A. The Masonic Medical Research Institute

MMRI is an internationally recognized biomedical research institute located in

Utica, New York. MMRI’s primary mission is to conduct high quality biomedical

and clinical research focused on cultivating knowledge and understanding of diseases,

medical treatments, and cures. Much of the research at MMRI is conducted using

animals.

1 Where not indicated otherwise, the following facts are taken from Defendants’ Statement of

Material Facts (“Def. SMF”) to which Plaintiff has admitted or failed to supply sufficient opposition. The

Court views all facts in the light most favorable to the nonmoving party, but “only if there is a ‘genuine’

dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).

During the latter half of 2017, MMRI began a substantial capital improvement

project to renovate and modernize its laboratory space. Plans for the renovation

included the build out of new, state of the art laboratories, a full-barrier small animal

vivarium, and an updated large animal facility. Initial plans anticipated that both the

small and large animal facilities would be located on the third floor of the Institute.

However, as planning was underway, it became apparent that the third floor could not

support the needs and requirements of both a large and small animal facility. This

required MMRI to pivot, reimagine the construction plan, and complete the renovation in

phases.

Construction of the small animal vivarium was completed in the summer of 2018.

MMRI did not house any animals—large or small— at MMRI while construction was

underway. Plaintiff indicates, however, that dogs for MMRI were being housed off-site

and that she “had to do the paperwork for them for MMRI.” Puleo Aff., ECF No. 44-5, ¶

24. Nevertheless, there is no dispute that from approximately June 2017 through

August 2018, there were no animals at MMRI.

In addition to the physical reconstruction of MMRI’s laboratory and animal

spaces, on November 1, 2017, MMRI announced its appointment of Maria I. Kontaridis,

Ph.D. (“Dr. Kontaridis”) as its Director of Research. Dr. Kontaridis officially started as

the Director of Research on January 1, 2018. Prior to her official start date, Dr.

Kontaridis worked for MMRI as a part-time consultant from approximately October 2017

until January 1, 2018. In her capacity as a consultant, Dr. Kontaridis advised MMRI on

the design plan for the laboratory and animal facilities. During this time and until

approximately July 2018, Dr. Kontaridis primarily worked remotely from the Boston area,

where she lived prior to moving to Utica.

Dr. Kontaridis also played a significant role in the strategic decision to move

toward a small animal model of research. Defendants contend that this decision was

based in large part on the recognition that the use of small animals – primarily mice – is

best practice and industry standard in the medical research community. Furthermore,

Dr. Kontaridis’ own research is conducted using transgenic or genetically modified mice.

Dr. Kontaridis’ mice were the first animals reintroduced at MMRI after completion of the

small animal facility. Dr. Kontaridis maintains a colony of transgenic mice containing

several different genetic lines; each line is valued at $50,000 to $100,000. Defendants

contend that the appointment of Dr. Kontaridis as Director of Research was instrumental

in MMRI’s effort to modernize its approach to research and transition from a large to

small animal model.

At the time of Dr. Kontaridis’ appointment, John S. Zielinski (“Mr. Zielinski”), was

MMRI’s Chief Financial Officer and Vice President of Administration. As Chief Financial

Officer and Vice President of Administration, Mr. Zielinski was responsible for all

aspects of the Institute with the exception of research and scientific endeavors.

B. Plaintiff’s Employment at MMRI

Plaintiff was hired by MMRI in 1989 as Animal Care Administrator. At all times,

Plaintiff was an at-will employee. As Animal Care Administrator, Plaintiff’s position

revolved around caring for the animals present at MMRI. In addition to caring for

laboratory animals, Plaintiff was responsible for MMRI’s regulatory compliance, as well

as maintaining records and submitting necessary reports to various state and federal

agencies that oversee the wellbeing of laboratory animals.

Given that MMRI primarily used large animals such as dogs prior to the 2017

renovation, Defendants contend that Plaintiff spent most of her Animal Care career

tending to large animals. Plaintiff asserts that during her 29 years of employment with

MMRI, she was responsible for all aspects of veterinary/husbandry care of both large

and small animal colonies, including mice, rats, pigeons, hamsters, rabbits, dogs, and

pigs.

Defendants contend that because there were no animals at MMRI during the

renovation, and as MMRI was transitioning its focus from large to small animal

research, Plaintiff’s position was effectively eliminated when construction of the small

animal vivarium began. Defendants further contend that in or around July 2017, instead

of immediately terminating Plaintiff, MMRI temporarily assigned Plaintiff to a Research

Assistant position. It was originally anticipated that Plaintiff would continue caring for

large animals once the large animal facility was constructed.

In her capacity as a Research Assistant, Plaintiff remained responsible for

ensuring MMRI’s compliance with regulatory requirements and supporting grant

applications relating to the use of animals in institutional research. Plaintiff also took on

traditional Research Assistant duties and was assigned to work alongside other

Research Assistants in a laboratory setting. Plaintiff did not retain her animal caretaking

duties as there were no animals on premises.

C. The August 2017 Meetings

During her transition from the Animal Care Administrator position to a Research

Assistant position, Mr. Zielinski temporarily supervised Plaintiff. On August 1, 2017, Mr.

Zielinski and Amy Pietrafesa (“Ms. Pietrafesa”), MMRI’s Director of Human Resources,

met with Plaintiff to discuss the Research Assistant position. During this meeting,

Plaintiff was told that she was expected to report to work from 9:00 a.m. to 5:00 p.m. so

that her schedule mirrored that of the other Research Assistants, which was different

from the hours Plaintiff typically worked in her role as Animal Care Administrator.

Plaintiff was also asked to keep a daily log of her activities as she transitioned to a new

role. There is a dispute as to what else was discussed at this meeting, but it appears

that at some time either at or close to this meeting, Plaintiff was advised that her twenty-

four hour building access would be limited to correspond with her new hours.

Plaintiff contends that she had a second meeting with Mr. Zielinski on August 16,

2017. Plaintiff asserts that at this meeting she asked Mr. Zielinski why she had been

“locked out” of the building and why her hours had changed. Plaintiff contends that Mr.

Zielinski became “irate,” yelled at her that he did not want Plaintiff at MMRI, claimed that

Plaintiff had “stonewalled” one of Mr. Zielinski’s investigations, “pushed back on the

daily log,” and said that Plaintiff had an “attitude.” Puleo Aff. ¶¶ 26-27.

Plaintiff also asserts that in August and September 2017, Mr. Zielinski, “without

reason or cause, would spend an inordinate amount of time in [Plaintiff’s] workspace

lording over [her] but would not say anything;” would “continuously belittle and second-

guess [Plaintiff] via email;” and other employees reported to Plaintiff that Mr. Zielinski

made statements that reflected negatively on Plaintiff’s character. Puleo Aff. ¶¶ 32-34.

D. Plaintiff’s September 26, 2017 Bullying Complaint

As a research institute, MMRI relies heavily on funding from grants through the

National Institutes of Health (“NIH”), as well as other sources. On September 25, 2017,

just one week before an NIH grant submission deadline, Plaintiff sent an email to some

individuals at MMRI stating that she would be on vacation September 28 and 29, 2017.

Mr. Zielinski learned of Plaintiff’s anticipated use of vacation time and became

concerned that it would impede institutional efforts to meet the impending NIH deadline.

To Mr. Zielinski’s knowledge, there were a number of outstanding issues related to

MMRI’s large animal protocols that needed to be resolved prior to submission of the

NIH grant application. Because the preparation of those animal protocols were

Plaintiff’s responsibility, Defendants assert that Mr. Zielinski had concerns that Plaintiff’s

use of vacation would hinder the grant application process. Therefore, on September

26, 2017, Mr. Zielinski emailed Plaintiff to address his concerns and to explain that

before she took any additional vacation, she needed to be sure that “all large animal

protocols/plans/write-ups/etc. [were] in place to support the NIH and any other grants”

that were being applied for at the time. ECF No. 44-5 at 86.

Plaintiff asserts that at the time, Drs. J. Cordeiro and Gary Aistrup had both

approved her vacation, and she had already made the submissions relative to the NIH

grant. Plaintiff points to evidence indicating that in a September 26, 2017 email from Dr.

Cordeiro to Mr. Zielinski, Cordeiro explained that Zielinski was wrong and had

overstepped his bounds because Plaintiff had gotten the vacation time approved and

the NIH submissions were complete. Puleo Aff. ¶ 30.

On the evening of September 26, 2017, Plaintiff called David Schneeweiss

(“Mr. Schneeweiss”), who was the President of MMRI’s Board of Directors at the time,

to complain about what she perceived to be “bullying” by Mr. Zielinski. Plaintiff told Mr.

Schneeweiss that she felt bullied by Mr. Zielinski and asked that there be no retaliation

for her complaint. See ECF No. 44-5 at 83-84 (Zielinski 9/27/17 6:59 am email to

Pietrafesa)(“David called me at home about 8:15 last night to report that he had

received a call from Colleen that I was bullying her, that you and I had belittled her and I

had not responded to a request she had in July for a signature on a form necessary to

continue animal care certification.”). It is undisputed that at no point during her

conversation with Mr. Schneeweiss did Plaintiff state that she was bullied because of

her sex or age, nor did she complain of “harassment.”

Immediately after speaking with Plaintiff, Mr. Schneeweiss called Mr. Zielinski at

home and asked him what had occurred from his point of view. Mr. Zielinski denied

Plaintiff’s bullying allegations. Plaintiff presents evidence indicating that on September

26, 2017 at 5:12 pm, Mr. Zielinski sent Mr. Schneeweiss an email indicating: “FYI… I

did not lay Colleen off2 so she could support the scientists and there would be no

excuse for failure to properly submit and hopefully win grants. We’ll see what develops

….”. ECF No. 44-5 at 84. It is unclear whether this email was in response to Mr.

Schneeweiss’ call to Mr. Zielinski reporting Plaintiff’s complaint. See ECF No. 44-5 at

83-84. Mr. Schneeweiss responded: “It’s amazing the hutzpah of everyone. Their [sic]

making their own beds.” ECF No. 44-5 at 84.

The following morning, September 27, 2017, Mr. Zielinski emailed Ms. Pietrafesa

to make her aware of Plaintiff’s bullying complaint. Mr. Zielinski’s September 27, 2017

email to Ms. Pietrafesa states, inter alia: “I am guessing that [Plaintiff] was [sic] passed

2Mr. Zielinski indicated at his deposition that he was the one who advocated that Plaintiff be kept

on as a Research Assistant during the period when there were no animals at MMRI because of the

possibility that MMRI might use large animals in its research in the future. See ECF No. 44-1, at 38-39.

the email response to Jon Cordeiro & company and wanted to take pre-emptive action

to forestall a possible layoff.” Id.

Shortly thereafter, Mr. Schneeweiss, Mr. Zielinski, and Ms. Pietrafesa conferred

regarding Plaintiff’s complaint. Ms. Pietrafesa indicated that she would investigate the

complaint and take the appropriate next steps. Defendants contend that Ms.

Pietrafesa’s investigation indicated that Mr. Zielinski was merely attempting to manage

Plaintiff during her transition from Animal Care Administrator to a Research Assistant

position. Nevertheless, at the conclusion of the investigation, Plaintiff’s reporting

structure was changed so that she reported to Dr. Cordeiro. Accordingly, effective

September 27, 2017, Dr. Cordeiro became Plaintiff’s direct supervisor making him

responsible for Plaintiff’s timesheets, requests for vacation, performance appraisals,

and laboratory access. Because Dr. Cordeiro was to be Plaintiff’s sole supervisor,

Plaintiff was no longer required to provide weekly activity logs to Mr. Zielinski. Shortly

thereafter, Plaintiff’s twenty-four hour building access was also restored at Dr.

Cordeiro’s request. The investigatory findings and the remedial actions taken as a result

of Plaintiff’s complaint were reported to Plaintiff in an email from Ms. Pietrafesa dated

October 2, 2017.

E. Plaintiff’s Termination

As described above, throughout 2017 and 2018, MMRI was in a state of

reorganization, reconstruction, and transition. Defendants contend that as preparations

to open the small animal vivarium began, it was determined that MMRI no longer had a

position for Plaintiff. Defendants assert that the reason for Plaintiff’s termination was

two-fold. First, although Plaintiff had been transitioned to a Research Assistant role

with the intention of keeping her on staff until large animals were back on site at MMRI,

it had become apparent that large animals would not be reintroduced for several years.

Defendants assert that because there were no large animals to care for and because

Plaintiff had no experience with transgenic, genetically modified mice, there was no

animal care position that Plaintiff was qualified for.

Second, Defendants contend, MMRI was unable to keep Plaintiff on staff in a

Research Assistant position due to a lack of grant funding in the laboratory where

Plaintiff worked. In this regard, Plaintiff was one of three Research Assistants working in

Dr. Cordeiro’s lab. However, Defendants assert, at the time Dr. Cordeiro lacked funding

to pay his own salary let alone that of three Research Assistants because he had failed

to secure grants to fund his research. See Kontaridis Dec., at ¶ 55. Defendants explain

that MMRI, like many research institutions, operates like a shopping mall. Id. at ¶ 56.

For example, individual store owners are expected to pay their own rent, payroll, and

other expenses; those responsibilities do not fall to the mall owner. Id. In similar fashion,

the scientists at MMRI are expected to fund their own research and labs, including

laboratory staff, through grant funding. Id. Defendants assert that when Dr. Kontaridis

joined MMRI in January 2018, Dr. Cordeiro had no grant funding and was unable to

financially support his lab or pay his research staff. Id. Instead, MMRI was footing the

bill for his research, his staff, and his own salary. Id. Defendants maintain that given Dr.

Cordeiro’s lack of grant funding, Dr. Kontaridis had to examine how Dr. Cordeiro’s

research staff fit the larger needs of MMRI. Id. at ¶ 57. Because he had three Research

Assistants and no funding to support their salaries, Dr. Kontaridis made the decision

that the Institute could not bear the financial burden of Dr. Cordeiro’s entire staff. Id.

Given Plaintiff’s lack of research experience compared to the other two

members of Dr. Cordeiro’s lab staff, Dr. Kontaridis made the decision to terminate

Plaintiff’s employment. Id. Plaintiff’s employment was terminated on March 1, 2018.

Plaintiff contends, however, that there was work and funding for her at MMRI

both in animal care and research. She maintains she was qualified to fulfill the Animal

Care Assistant position that was awarded on April 2, 2018 to Lewis Guinther (“Mr.

Guinther”), a male considerably younger than Plaintiff. Plaintiff contends that Mr.

Guinther “took” her job at MMRI “as the Animal Care Attendant.” Puleo Aff., ¶ 18.

Plaintiff points out that at the time of her discharge, MMRI had already posted an

advertisement looking to fill the position eventually awarded to Mr. Guinther - thereby

indicating there was funding for this position which, as discussed below, Plaintiff

contends she was eligible to fulfill.

Further, Plaintiff contests whether there was grant funding for her position as a

Research Assistant. Plaintiff points out that on February 15, 2018, she received a

Memo stating that upon the recommendation of Dr. Kontaridis, the Executive/Personnel

Committee of the Masonic Medical Research Laboratory Board of Directors had

recommended to the full Board of Directors, and the full Board of Directors had

approved, her salary for the 2018 budget. Puleo Aff., ¶ 23. Plaintiff asserts that she,

Jackie Treat, and Robert Goodrow were assistants in Dr. Cordeiro’s lab, but that

Goodrow was working part time in Dr. Cordeiro’s lab and “was listed on other scientists’

grants.” Id. ¶ 42. She asserts that she “was more qualified than Robert Goodrow in

regards to making/procuring the stem cell lines. This was very important and absolutely

necessary to Dr. Cordeiro’s research. Nevertheless, in discriminatory fashion[,] of the

three research assistants in Dr. Cordeiro’s lab Defendants decided to keep the male

employee but terminate me[,] the more experienced female employee[,] and they never

consulted with Dr. Cordeiro about this decision.” Id. ¶ 44. Plaintiff also asserts that

during her employment at MMRI, “scientists were always given time, usually in terms of

years, when they where between grants. During this grace period the lab would pay for

the scientists and their staffs. To the best of my knowledge no one was fired when grant

funding ended.” Id. ¶ 43.

There is a dispute as to who was responsible for Plaintiff’s termination.

Defendants present evidence that Dr. Kontaridis was the sole decision maker with

respect to Plaintiff’s termination. See Declaration of Maria I. Kontaridis, Ph.D., sworn to

on November 2, 2022 (“Kontaridis Dec.”), at ¶ 51 (Dkt. No. 41-1); Declaration of John S.

Zielinski, sworn to on November 3, 2022 (“Zielinski Dec.”), at ¶ 38; Deposition of John

S. Zielinski, (“Zielinski Depo.”), at p. 33-37 (Dkt. No. 44-1); Deposition of David

Schneeweiss, at pp. 38-39 (Dkt. No. 44-10); see also Deposition of Colleen Puleo

(“Puleo Depo.”), at p. 42 (Dkt. No. 41-8, Ex. A)(“Q: Do you know whether anyone else

[other than Dr. Kontaridis] was involved in the decision to end your employment? A: No,

I don’t know.”). They also argue that the facts do not support Plaintiff’s contention that

Mr. Zielinski was involved in Plaintiff’s termination.3

3 For example, Defendants point out that Plaintiff cites pages 34 and 35 of Amy Pietrafesa’s (“Ms.

Pietrafesa”) deposition transcript for this proposition, but Defendants contend that neither of these

citations suggest Mr. Zielinski made, or influenced, the decision to terminate Plaintiff’s employment. In

fact, Defendants point out, Ms. Pietrafesa testified with respect to Plaintiff’s termination: “[A]s far as I

recall, John Zielinski didn’t weigh in on this.” Deposition of Amy Pietrafesa, (“Pietrafesa Depo.”), at p. 33

(Dkt. No. 44-8).

Plaintiff also cites to pages 12–14, 18, 28, 39–41, 47, and 82 of Mr. Zielinski’s deposition

testimony in an effort to raise an inference that he played some role in the decision to terminate her

employment. As Defendants argue, however, the cited testimony indicates that Mr. Zielinski was MMRI’s

Plaintiff implicates Mr. Zielinski in the decision to terminate her employment by

pointing to evidence indicating that Mr. Zielinski had the authority to recommend to the

Board of Directors that an individual be discharged. She further points to evidence

indicating that on at least two occasions Mr. Zielinski was responsible for female

employees being discharged. Plaintiff also claims she can establish that her termination

occurred under circumstances giving rise to an inference of discrimination because Mr.

Zielinski “exhibited a pattern and practice of discrimination against [five] older females,”

and because he “single[d] out and terminated” her. Id. at p. 8.

Defendants argue that Plaintiff’s positions should be rejected because Dr.

Kontaridis was the sole decision maker with respect to Plaintiff’s termination; the

evidence indicates that Mr. Zielinski had no influence on the decision to terminate

Plaintiff’s employment; Plaintiff fails to establish that the “five older women” upon which

she bases her pattern and practice claim were similarly situated to her; the actions that

Mr. Zielinski took relative to Plaintiff were implemented for legitimate reasons to support

Plaintiff in her transition to a new role at MMRI and Plaintiff fails to present anything to

connect this conduct to her age or gender; that Plaintiff fails to present evidence

causally connecting Mr. Zielinski’s allegedly discriminatory conduct with the legitimate,

non-discriminatory, non-retaliatory decision Dr. Kontaridis made to terminate Plaintiff’s

Chief Financial Officer; that he was familiar with the employee handbook; that he initially held a position

equal to Dr. Kontaridis in terms of MMRI’s organizational structure; that he influenced the decision to

temporarily assign Plaintiff to a Research Assistant position; that he had general hiring and firing

authority, subject to Board approval; and that MMRI intended to build a large animal facility. Id. None of

this testimony directly supports Plaintiff’s contention that Mr. Zielinski was involved in her termination. See

id. Defendants also point out that Plaintiff fails to cite the portions of Mr. Zielinski’s deposition during

which he was asked about his involvement in Plaintiff’s termination. See Zielinski Depo., at pp. 33-37.

There, Mr. Zielinski testified that he was not consulted about whether Plaintiff should be terminated, that

he offered no opinion on the matter, and that he was merely informed about the decision Dr. Kontaridis

had already made to terminate Plaintiff’s employment. Id.; see also Zielinski Dec., at ¶ 38.

employment; and Plaintiff fails to demonstrate that she was “replaced” with Lewis

Guinther.

F. Relevant Post-Renovation Animal Care at MMRI

As described above, throughout 2017 and 2018, MMRI was in a state of

reorganization, reconstruction, and transition. In anticipation of the full-time on-boarding

of Dr. Kontaridis in January 2018, MMRI transitioned from a large- to predominately

small-animal model of research. Therefore, Defendants contend, MMRI’s recruitment

efforts in 2018 and the latter half of 2017 were focused on hiring individuals

knowledgeable about small animal research, with a particular emphasis on the mouse

model system of research and genetically modified mice. In light of this transition,

Defendants contend, MMRI required its Animal Care staff to have the proper

background and experience to breed, house, and care for a large mouse population.

Accordingly, on September 15, 2017 and October 18, 2017, MMRI posted an

opening for a Manager of Animal Research Facilities. Among other things, this person

would be responsible for coordinating animal care, developing and implementing

standard operating procedures related to animal care, and providing training in animal

care. On November 6, 2017, Plaintiff emailed Dr. Kontaridis stating: “I was rather

shocked and surprised to see that the MMRL4 is advertising for my current position.

Could you elaborate on this .... do I need to reapply for my current position as Animal

Care Administrator?” ECF No. 41-2 at 6. Dr. Kontaridis responded:

Dear Colleen,

Thank you for your email. I am happy to discuss the position of

Manager/Director of the Animal Research Facilities. The Director for Animal

Research position will be a new and different role from your current position

4 The Court presumes that this acronym stands for Masonic Medical Research Laboratory.

as large animal care administrator, which principally coordinates the day-to-

day care of the large animals and which is a role I expect to continue at the

MMRL. The new position will require management experience, someone

who can coordinate the workload for an administrative care staff; someone

who preferably has experience with a full-barrier mouse facility, in addition

to understanding the underpinnings of running a large animal

facility/surgeries; someone who has full understanding and who can apply

for get [sic] the needed federal licensing for animal care and procedures;

and someone who can coordinate approval of IACUC research protocols for

the researchers. In this regard, if you feel you meet the qualification of this

position, I strongly encourage you to please apply; your application will be

given the utmost consideration. Please know that I think you are and will

continue to be a valuable asset to the laboratory, in any capacity, and my

hope is that you will continue working at the MMRL for many years to come.

Hope this helps relieve some of your concerns. I am happy to chat by

phone should you have additional questions or concerns regarding this or

your current position in the lab.

With best wishes,

Maria

Id.

At her deposition, Plaintiff agreed that Dr. Kontaridis personally invited her

to apply for the position, but, despite knowledge of the newly posted position and a

personal invitation to apply, Plaintiff never applied for it. Puleo Depo., at p. 54; see

Kontaridis Dec., at ¶ 28. Moreover, Plaintiff concedes that she was not qualified for the

position. See Complaint, at ¶ 65 (“Plaintiff was not qualified to hold Mrs. Guinther’s

job.”).

On January 29, 2018, MMRI hired Sarah Guinther (“Ms. Guinther”) as its

Manager of Animal Research Facilities. Kontaridis Dec., at ¶¶ 29-30. Ms. Guinther

came to MMRI with approximately fourteen years of experience in the animal sciences

field. Deposition of Sarah Guinther (“S. Guinther Depo.”), at pp. 41-46. In those fourteen

years, Ms. Guinther had primarily worked with mice and rats, including genetically

modified mice. Id. at p. 44-45. Moreover, Ms. Guinther was familiar with full-barrier

vivaria, and in fact, helped design and open multiple animal research facilities prior to

joining MMRI. Id.

In her role as the Manager of Animal Research Facilities, Ms. Guinther was

responsible for managing animal care at MMRI. Kontaridis Dec., at ¶ 31. During 2018

and into 2019, this primarily involved managing the small animal vivarium as the large

animal space had not yet been constructed. Id. Ms. Guinther also assisted with the

design plans for the small and large animal spaces, and prepared for the arrival of

genetically modified mouse models, including Dr. Kontaridis’ mouse colony. Id. Ms.

Guinther additionally assisted in MMRI’s animal care compliance efforts by ensuring

that the Institution submitted all of the documentation required to maintain its licensure

as an animal research facility. Id. at ¶ 33.

Having identified the need for a support position within the Animal Care

Department, on January 13, 2018, MMRI posted a position for an Animal

Care Assistant. Id. at ¶ 34. Defendants contend that, like the Manager of Animal

Research Facilities, this was a newly created position which required the ability to

conduct husbandry, genotyping, and care of genetically modified mouse models. Id. at ¶

35, Ex. C. Defendants further contend that while the position generally required the

care of laboratory animals, the laboratory animal population at MMRI was transitioning

to genetically modified mice, where each unique line would have to be specifically bred

and genotyped. Id. at ¶ 35. Thus, Defendants maintain, the posted position called for a

small Animal Care Assistant. Id. Plaintiff never applied for the position even though,

Defendants contend, Dr. Kontaridis verbally informed her that MMRI was hiring for that

role. Id. at ¶ 36.

Plaintiff contends that she was not aware that the position was available until

after she was terminated and Mr. Guinther was hired for the Animal Care Assistant

position. See Puleo Aff., ECF No. 44-5 at ¶¶ 15-16. Plaintiff also contends that she did

not think that she needed to re-apply for any position at MMRI because in email

communications with Dr. Kontaridis about the newly created Manager of Animal

Research position (which Dr. Kontaridis advised Plaintiff to apply for but she did not),

Dr. Kontaridis stated: “Please know that I think you are and will continue to be a

valuable asset to the laboratory, in any capacity, and my hope is that you will continue

working at the MMRL for many years to come.” Id. at ¶ 15.

Although not explicitly stated in Plaintiff’s opposition, it appears Plaintiff is

claiming that she should have been hired into the Animal Care Assistant position in April

2, 2018. Pointing to the verbiage of the Animal Care Assistant job posting and noting

that it made no express reference to “mice,” “genetically altered mice,” “small animals,”

or “breeding,” Plaintiff appears to contend that she was qualified for this position

because it was essentially the same position as the Animal Care Administrator position

Plaintiff held. She further argues that, even assuming the Animal Care Assistant

position required experience with genetically altered mice, she had this experience.

Defendants counter that after the small animal vivarium was constructed, MMRI’s

animal population consisted almost exclusively of transgenic, genetically modified mice

and other small animals. See Kontaridis Dec., at ¶¶ 24, 63. Therefore, Defendants

contend, the post-renovation animal care positions at MMRI naturally related to the care

of small, genetically modified animals making the Animal Care Assistant position distinct

from the position Plaintiff held as Animal Care Administrator before July 2017. Further,

Defendants point out that Dr. Kontaridis testified at her deposition that the Animal Care

Assistant job posting was imperfect because Human Resources rather than scientific

staff created it. Deposition of Maria I. Kontaridis, Ph.D. (“Kontaridis Depo.”), at p. 112

(Dkt. No. 44-3). The lack of certain verbiage in the job description, Defendants maintain,

is not evidence that experience with transgenic, genetically modified mice was

unimportant to the Animal Care Assistant position. See id. Still further, Defendants

argue that testimony from Dr. Kontaridis, Ms. Guinther, and Mr. Guinther confirms that

this experience was crucial to post-renovation animal care at MMRI. Kontaridis Depo.,

at pp. 29, 35, 78-79, 92, 112; Deposition of Sarah Guinther, at pp. 13, 20-21, 30 (Dkt.

No. 41-9, Ex. B); Deposition of Lewis Guinther (“L. Guinther Depo.”), at pp. 10-11 (Dkt.

No. 41-9, Ex. C). Finally, Defendants argue that, to Dr. Kontaridis’s knowledge, Plaintiff

lacked experience with genetically modified mice and thus Plaintiff was not qualified for

any of the post-renovation animal care positions at MMRI even if she had applied for

them. Kontaridis Dec., at ¶ 53; Puleo Depo., at p. 57 (”Q: Did you have experience

working with transgenic mice at MMRI? A: No.”).

On April 2, 2018, Mr. Guinther5 was hired for the Animal Care Assistant position.

Kontaridis Dec., at ¶ 37; Deposition of Lewis Guinther (“L. Guinther Depo.”), at p. 17.

Like Ms. Guinther, Mr. Guinther came to MMRI with significant experience working with

5 Defendants point out that Sarah Guinther and Lewis Guinther are husband and wife. S.

Guinther Depo., at p. 33; L. Guinther Depo., at p. 12. They contend that at no point during their

respective careers at MMRI did either report to the other. S. Guinther Depo., at p. 34-35; L. Guinther

Depo., at p. 16. Instead, both Ms. Guinther and Mr. Guinther independently reported to Dr. Kontaridis.

Kontaridis Dec., at ¶ 41.

transgenic mice. L. Guinther Depo., at pp. 22, 27-28. Defendants point out that by the

time he was hired in 2018, Mr. Guinther had ten years of experience working with

genetically modified mice similar to those that would comprise the core of MMRI’s

research in 2018 and beyond. Id. at pp. 27-28.

Before he was hired, Mr. Guinther was interviewed not only by Dr. Kontaridis, but

also by Robert Quinn, DVM (“Dr. Quinn”), MMRI’s consulting Veterinarian. Id. at p. 29;

Kontaridis Dec., at ¶ 38. Dr. Quinn emphatically endorsed Mr. Guinther for the Animal

Care Assistant position. Kontaridis Dec., Ex. D (Email from Dr. Quinn) (“Just interviewed

Lewis. He has more experience than we could ask for, seems very personable and both

he and Sarah seem to have thought through all the considerations one would worry

about with a married couple working together. I think we would be lucky to get him in

this position.”).

In the Animal Care Assistant position, Mr. Guinther was responsible for cleaning,

feeding, and caring for the mice housed at MMRI. L. Guinther Depo., at pp. 10-11;

Kontaridis Dec., at ¶ 40. Mr. Guinther also had breeding duties which involved

maintaining the different genetic lines of Dr. Kontaridis’ mice and ensuring they

continued to breed. L. Guinther Depo., at pp. 11-12, 15; Kontaridis Dec., at ¶ 40.

Defendants contend that as Dr. Kontaridis’ mice were the first animals reintroduced at

MMRI after the third floor renovation was complete, and given their scientific importance

and monetary value, it was of crucial importance to ensure proper care by handlers

with sufficient experience and knowledge of small genetically modified animals.

Kontaridis Dec., at ¶ 42.

Plaintiff contends that Lewis Guinther “took my job at MMRI as the Animal Care

Attendant, as it was the same job I had performed for MMRI for approximately 29

years.” Puleo Aff. ¶ 18. She contends that “[o]n numerous occasions Mrs. Guinther had

stated to me that Lewis Guinther had been assured employment at the MMRI. She

stated Lewis Guinther’s expertise were [sic] knowledge of IACUC rules. She never once

said that he had experience with transgenic mice.” Id. ¶ 19. Plaintiff further contends: “I

can and have in the course of my employment successfully anesthetized animals for

experiments at MMRI, it is my understanding Lewis Gunther, my replacement[,] cannot

as he has tried anesthetize dogs and one pig while at MMRI but has not done so

successfully.” Id. ¶ 20.

G. Construction of MMRI’s Large Animal Facility

The construction of the large animal facilities at MMRI did not begin until

December 2019, and was not complete until December 2020. It was not until

September of 2021 that large animals were actually used for research purposes at

MMRI. Even then, the use of large animals was limited. On one occasion, three pigs

were used in connection with a tutorial on how to conduct a pig study. Defendants

contend that with the exception of the pigs used in the above-described tutorial, there

have been no other large animals housed at MMRI since phase one of the renovation

began in June 2017. Defendants further contend that the animal population at MMRI

since August 2018, when the small animal vivarium was complete, has been

overwhelmingly transgenic mice. Plaintiff disputes the limited nature of the animal

population at MMRI by pointing out that in 2021/2022, Defendants advertised

employment positions for large animal husbandry.

IV. DISCUSSION

A. Retaliation Claims

“The McDonnell Douglas burden-shifting analysis applies to retaliation claims

under Title VII, the ADEA, and the NYSHRL.” Pang v. Cushman & Wakefield, No.

20CV10019VECSN, 2022 WL 19410316, at *13 (S.D.N.Y. Aug. 23, 2022), report and

recommendation adopted sub nom. Pang v. Cushman & Wakefield U.S., Inc., No.

20CV10019VECSN, 2023 WL 2644267 (S.D.N.Y. Mar. 27, 2023)(citing Cifra v. G.E.

Co., 252 F.3d 205, 216 (2d Cir. 2001); Gorzynski v. Jetblue Airways Corp., 596 F.3d 93,

110 (2d Cir. 2010); Chavis v. Wal-Mart Stores, Inc., 265 F. Supp. 3d 391, 398 (S.D.N.Y.

2017)). “To establish a prima facie case of retaliation, ‘the plaintiff must show that [s]he

engaged in protected participation or opposition under [Title VII, the ADEA, or the

NYSHRL], that the employer was aware of this activity, that the employer took adverse

action against the plaintiff, and that a causal connection exists between the protected

activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse

employment action.’” Id. (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 208–09

(2d Cir. 1990)). “A plaintiff's burden in this regard is ‘de minimis,’ and the ‘court's role in

evaluating a summary judgment request is to determine only whether proffered

admissible evidence would be sufficient to permit a rational finder of fact to infer a

retaliatory motive.’” White v. City of Middletown, 45 F. Supp. 3d 195, 214 (D. Conn.

2014)(quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)).

On the first element of the prima facie case, Plaintiff must establish that she

engaged in protected activity. “Protected activities include those actions taken to protest

or oppose statutorily prohibited discrimination.” Colton v. New York Div. of State Police,

No. 5:14-CV-00801, 2017 WL 5508911, at *11 (N.D.N.Y. Feb. 8, 2017) (internal

quotation marks and citation omitted). In order to be considered protected by the

relevant anti-discrimination statues, Plaintiff's actions must have been accompanied by

a good faith, reasonable belief that the underlying challenged actions of the employer

constituted statutorily prohibited discrimination. Id. (internal quotation marks and citation

omitted). While Plaintiff need not show that the challenged action was, in fact, unlawful,

a subjective belief of impropriety is necessary. Id. (internal quotation marks and citation

omitted). Plaintiff contends that she believed that her September 26, 2017 bullying

complaint about Mr. Zelinski constituted protected activity under Title VII, the ADEA,

and the NYSHRL. This is sufficient to satisfy the first element of the prima facie case.

On the second element of the prima facie case, Plaintiff must establish that the

employer was aware of her protected activity. Plaintiff fails to satisfy this element. “To

constitute ‘protected activity,’ a plaintiff's complaint must include ‘sufficiently specific

terms so that the employer is put on notice that the plaintiff believes he or she is being

discriminated against on the basis of race ... or any other characteristic protected by” a

relevant statute. Morales v. Bottling Grp., LLC, 374 F. Supp. 3d 257, 274 (W.D.N.Y.

2019), aff'd sub nom. Campbell v. Bottling Grp., LLC, 814 F. App'x 630 (2d Cir.

2020)(quoting Lehman v. Bergmann Assocs., Inc., 11 F.Supp.3d 408, 417-18 (W.D.N.Y.

2014) (citation omitted)). “’The onus is on the speaker to clarify to the employer that

[s]he is complaining of unfair treatment due to [her] membership in a protected class

and that [s]he is not complaining merely of unfair treatment generally.’” Id. (quoting

Hanfland v. Brennan, 2015 WL 6134177, *11 (W.D.N.Y. 2015) (citation omitted)); see

McKenzie v. Big Apple Training Inc., No. 1:22-CV-9554-GHW, 2023 WL 4866041, at *9

(S.D.N.Y. July 31, 2023)(“’Mere complaints of unfair treatment are not protected speech

in the employment retaliation context,’ and it is the speaker's responsibility ‘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.’”)(quoting Benzinger v. Lukoil Pan Ams., LLC, 447 F. Supp. 3d 99, 124

(S.D.N.Y. 2020) (quotation and ellipsis omitted)); Chauhan v. MM Hotel Mgmt. LLC, No.

18 CV 5963, 2019 WL 6118006, at *9 (E.D.N.Y. Nov. 18, 2019)(“To qualify as protected

activity, a plaintiff must 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.”) (quoting Sletten v. LiquidHub, Inc., No. 13 Civ. 1146, 2014

WL 3388866, at *5 (S.D.N.Y. July 10, 2014)) (internal quotations and citations omitted);

Hanfland v. Brennan, 2015 WL 6134177, *11 (W.D.N.Y. 2015) (citation omitted) (“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.”).

“[I]mplicit in the requirement that the employer have been aware of the protected

activity is the requirement that it understood, or could reasonably have understood, that

the plaintiff's opposition was directed at conduct prohibited” by a particular statute.

Jackson v. Syracuse Newspapers, No. 10-CV-1362 (NAM), 2013 WL 5423711, at *20

(N.D.N.Y. Sept. 26, 2013) (citation omitted). “[G]eneralized complaints of unfair

treatment do not qualify as a protected activity.” Eckhart v. Fox News Network, LLC, No.

20-CV-5593 (RA), 2021 WL 4124616, at *20 (S.D.N.Y. Sept. 9, 2021) (internal quotation

marks and citation omitted). Similarly, “’ambiguous complaints that do not make the

employer aware of alleged discriminatory misconduct do not constitute protected

activity.’” McKenzie, 2023 WL 4866041, at *9 (quoting Int'l Healthcare Exch., Inc. v.

Glob. Healthcare Exch., LLC, 470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007) (citations

omitted), and citing Venezia v. Luxoticca Retail N. Am. Inc., No. 13-cv-4467 (RJS), 2015

WL 5692146, at *12 (S.D.N.Y. Sept. 28, 2015)).

Here, it is undisputed that Plaintiff did not state in her complaint about Mr.

Zelinski that he bullied her because of her sex or age, or that she was complaining of

improper harassment. Indeed, when Plaintiff was asked at her deposition what she

believed motivated Mr. Zielinski to bully her, Plaintiff testified that she “ha[d] no idea.”

Puleo Depo., at p. 107. When asked a second time what Plaintiff believed was the

motivation for Mr. Zielinski’s alleged behavior and attitude toward her, she again

testified that she “ha[d] no idea.” Id. at p. 109.

Under the circumstances, even though Plaintiff may have believed she was

engaging in protected conduct, her complaint was insufficient to make out a prima facie

case of retaliation under Title VII, the ADEA, or the NYSHRL. See, e.g, Malone v. Town

of Clarkstown, No. 19 CV 5503 (VB), 2022 WL 2834105, at *8 (S.D.N.Y. July 20, 2022)

(“Similarly, plaintiff’s complaints about harassing conduct . . . are not protected activity

because they complaint of general bullying and harassment that plaintiff does not claim

are linked to or motivated by her sex.”); Johnson v. City Univ. of New York, 48 F. Supp.

3d 572, 577 (S.D.N.Y. 2014)(plaintiff’s “complaints about his boss’s bullying and

harassment” did not constitute protected activity where there was no allegation that the

complained of treatment was because of plaintiff’s membership in a protected class);

Lynch v. Nat’l Fuel Gas Distribution Corp., 25 F. Supp. 3d 358, 367 (W.D.N.Y. 2014)

(“plaintiff has produced no evidence of any complaint, formal or informal, sufficient to

have placed [employer] on notice that by complaining about [supervisor]’s ‘bullying’ she

was referring to discriminatory activity”). The record lacks sufficient evidence from which

a reasonable fact finder could conclude that the employer was, or should have been,

aware that Plaintiff’s September 26, 2017 bullying complaint was directed at conduct

protected or prohibited by Title VII, the ADEA, or the NYSHRL. “Simply stated, plaintiff

fails to meet the minimal requirements for establishing a prima face case of retaliation

because she fails to establish that she engaged in protected activity under Title VII[,]”

the ADEA, or the NYSHRL. Colton, 2017 WL 5508911, at *16. Accordingly,

Defendants’ motion directed to Plaintiff’s retaliation claims is granted and the retaliation

claims are dismissed.

B. Discrimination Claims

“Title VII, ADEA, and NYSHRL [discrimination] claims are evaluated under the

McDonnell Douglas framework.” Szewczyk v. Saakian, No. 21-672, 2022 WL 2037196,

at *1 (2d Cir. June 7, 2022)(citing McDonnell Douglas, 411 U.S. at 802–04; Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 82–83 (2d Cir. 2015) (Title VII); Bucalo

v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (ADEA);

Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (NYSHRL)). “’Under McDonnell

Douglas, a plaintiff bears the initial burden of proving by a preponderance of the

evidence a prima facie case of discrimination; it is then the defendant's burden to proffer

a legitimate non-discriminatory reason for its actions; the final and ultimate burden is on

the plaintiff to establish that the defendant's reason is in fact pretext for unlawful

discrimination.’” Id. (quoting Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir.

2014)).

Plaintiff’s prima facie case is primarily based upon the contention that Mr.

Zelinski played some role in her termination, and that he was motivated by age and

gender animus. Her arguments largely ignore the facts that MMRI was transitioning to a

small animal research model focused on transgenic mice, and that at the time of

Plaintiff’s discharge Dr. Kontaridis understood Plaintiff to lack the experience necessary

to assist research on transgenic mice and therefore there was not a position available

for her. Nevertheless, even assuming that Plaintiff establishes a prima facie case of sex

and age discrimination, Defendants proffer legitimate, non-discriminatory reasons for

their decision to discharge her and not to hire her for the Animal Care Assistant position

(for which she never applied). For reasons discussed below, Plaintiff fails to establish

that Defendants’ reasons for her discharge are in fact pretext for unlawful discrimination.

Upon demonstration of the plaintiff's prima facie case, the burden of

production shifts to the defendant to articulate a legitimate, non-

discriminatory reason for its decisions. McDonnell Douglas, 411 U.S. at 802-

05. “[T]he employer's burden of showing a legitimate non-discriminatory

reason for its actions is not a particularly steep hurdle. It is not a court's role

to second-guess an employer's personnel decisions, even if foolish, so long

as they are non-discriminatory.” [Brierly v. Deer Park Union Free Sch. Dist.,

359 F. Supp. 2d 275, 291 (E.D.N.Y. Mar. 23, 2005)]. “If the employer is able

to satisfy that burden, the inquiry then returns to the plaintiff, to demonstrate

that the proffered reason is a pretext for discrimination.” Setelius v. Nat'l Grid

Elec. Servs. LLC, No. 11-CV-5528, 2014 WL 4773975, at *6 (E.D.N.Y. Sept.

24, 2014) (quoting United States v. City of New York, 717 F.3d 72, 102 (2d

Cir. 2013)). It is not enough for the plaintiff to simply show that defendant's

stated reasons were false or not believable, plaintiff must instead show that a

discriminatory reason prompted the alleged adverse employment action

taken by the defendant. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993). “[I]n order to raise an issue of fact that is sufficiently material to

defeat a motion for summary judgment, the plaintiff must produce more than

simply some evidence; it must be enough evidence to support a rational

finding that the defendant's explanation for the adverse action is actually a

pretext to disguise discrimination.” Barounis v. N.Y.C. Police Dep't, No. 10

Civ. 2631, 2012 WL 6194190, at *6 (S.D.N.Y. Dec. 12, 2012) (citations

omitted); see also Smith v. Am. Exp. Co., 853 F.2d 151, 154-55 (2d Cir.

1988) (In order to rebut an employer's proffered non-discriminatory rationale

for its actions and withstand summary judgment, a plaintiff must present

more than allegations that are “conclusory and unsupported by evidence of

any weight.”)

King v. N. Amityville Fire Co., Inc., No. 19-CV-04643 (JMA/AYS), 2023 WL 4827103, at

*8 (E.D.N.Y. July 27, 2023).

Defendants assert that Plaintiff’s was terminated as a result of (i) MMRI’s

restructuring and transition from large to small animal research; and (ii) the lack of grant

funding to pay her Research Assistant salary. Def. MOL at 29-30. Defendants also

contend that Plaintiff never applied for the Animal Care Assistant position, and even if

she had, she was not qualified for the position. Def. Reply at 6. This satisfies

Defendant’s burden at this stage, thereby shifting the burden back “to the plaintiff to

demonstrate by competent evidence that ‘the legitimate reasons offered by the

defendant were not its true reasons, but were a pretext for discrimination.’” Patterson v.

County of Oneida, 375 F.3d 206, 221 (2d Cir.2004) (quoting Texas Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

Courts in this Circuit have explained that “a reason [for termination] cannot be

proved to be a pretext for discrimination unless it is shown both that the reason was

false, and that discrimination was the real reason.” Isaac v. City of New York, 701 F.

Supp. 2d 477, 488 (S.D.N.Y. 2010) (quotations and citations omitted). “The burden of

establishing pretext is a higher burden than that required to establish the prima facie

case, and the Second Circuit has instructed that [a] plaintiff[‘]s ‘initially vague allegation

of discrimination’ must be ‘increasingly sharpened and focused’ at this stage.” Id. at 488

(quoting Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.1985) (affirming summary judgment

in favor of defendant)). Although the “trier of fact may still consider the evidence

establishing plaintiff's prima facie case ‘and inferences properly drawn therefrom ... on

the issue of whether the defendant's explanation is pretextual,” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)

(quoting Burdine, 450 U.S. at 255 n. 10), “[t]o get to the jury, ‘[i]t is not enough ... to

disbelieve the employer; the fact finder must [also] believe the plaintiff's explanation of

intentional discrimination.’” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.

2000)(quoting St. Mary's, 509 U.S. at 519). “The plaintiff's opportunity to demonstrate

that the employer's proffered reason was false now merges with her ultimate burden to

persuade the trier of fact that she has been the victim of intentional discrimination (i.e.,

that an illegal discriminatory reason played a motivating role in the adverse employment

decision).” Bickerstaff v. Vassar College, 196 F.3d 435, 446–47 (2d Cir.1999) (citations

omitted); see also Reeves, 530 U.S. at 142–43 (Plaintiff bears the burden of

demonstrating that the defendant's reasons are a pretext for a racial motivation for its

actions).

In her opposition, Plaintiff claims that Defendants offer shifting explanations and

have created a “new reason” for the decision to terminate her employment. Plaintiff

claims that at the time of her termination Defendants asserted that “Plaintiff was not

qualified to work with genetically altered mice, but Lewis Guinther was. Specifically, only

one reason was given at the time of Plaintiff’s termination which was that due to lab

restructuring with the genetically modified mice, Plaintiff was being terminated.”

Plaintiff’s MOL, at p. 19. Plaintiff contends that this reason was pretextual “because she

was more than qualified to work with such mice.” Id. Plaintiff also argues that at the

time of her termination “there was plenty of employment for [her]” because evidence

existed that MMRI “was planning the buildout for both small and large animals in 2017

into 2018.” Id. at 20 (emphasis in original). In addition, Plaintiff asserts that “Defendants

have invented a new reason for Plaintiff’s termination, claiming there was no money in

the budget for her position.” Id., at 23. Plaintiff contends that the Court should reject

this basis for her termination because it was not identified in interrogatory responses,

and because she “was qualified for Lewis Guinther’s job [for] which there was funding

for as earlier as January or February of 2018.” Id. Plaintiff also contends that the

evidence indicates that there was funding for Plaintiff’s temporary research position with

Dr. Cordero. Id. at 24.

In their Reply, Defendants point out that Plaintiff testified that she was not

provided any reason for her termination except that there was no longer a position for

her, and therefore the Court should reject her argument based of alleged shifting

explanations for her termination. See Reply, at 15 (citing Puleo Depo., at pp. 38, 41-

42). Defendants also contend that from the time of Plaintiff’s termination until present

day, they have never wavered on the fact that Plaintiff was terminated in large part due

to MMRI’s restructure and transition to small animal research. Id. As to Plaintiff’s

contention that Defendants secondarily explain that they were unable to retain Plaintiff

in her temporary Research Assistant position due to a lack of grant funding, Defendants

argue that the fact that more than one reason motivated the decision to end Plaintiff’s

deployment does nothing to advance Plaintiff’s claim of pretext. See id. Defendants

contend that neither reason is mutually exclusive of the other, and that neither indicates

that “Plaintiff’s age, gender, or participation in protected activity was the true motivation

for her termination.” Id. For the reasons discussed below, the Court agrees with

Defendants.

Plaintiff conflates the reason she was not selected for the Animal Care

Assistant position (a job for which she did not apply), and the reason MMRI did not

retain her in the temporary Research Assistant position. Putting aside the fact that she

did not apply for the Animal Care Assistant position, Defendants contend that Plaintiff

was not hired for this position due to her inexperience with transgenic mice. See

Kontaridis Dec., at ¶ 53. Defendants contend that a lack of funding played no role in this

aspect of the decision to terminate Plaintiff’s employment. See id. Instead, Defendants

contend, a lack of grant funding in the laboratory where Plaintiff was working as a

Research Assistant motivated Dr. Kontaridis’s decision that MMRI could not retain her

in a research position. Id. at ¶¶ 55-57. Thus, Defendants contend, while Plaintiff claims

that there was funding for her to remain on staff given the hiring of Mr. Guinther, she

fails to appreciate that Defendants’ funding rationale related only to its inability to retain

her in the Research Assistant position.

Plaintiff claims that the decision to terminate her employment was pretextual

because she was qualified for the Animal Care Assistant position. The claim fails for

several reasons. First, it is undisputed that Plaintiff never applied for this position.

Kontaridis Dec., at ¶ 36; Puleo Depo., at p. 47.

Second, even if it is reasonable to assume that Dr. Kontaridis should have

considered Plaintiff for this position without an application because Dr. Kontaridis said to

Plaintiff that her “hope is that you will continue working at the MMRL for many years to

come” when the two communicated about the Manager of Animal Research Facilities

position (a position for which Plaintiff did not apply), the evidence indicates that the

Animal Care Assistant position required applicants to have experience caring for and

breeding genetically modified, transgenic mice. While the posting for this position may

not have specifically included this requirement, it is clear that Dr. Kontaridis deemed this

position to have this requirement. This is evidenced by the fact that after the small

animal vivarium was constructed, MMRI’s animal population consisted almost

exclusively of transgenic, genetically modified mice and other small animals. See

Kontaridis Dec., at ¶¶ 24, 63. Therefore, Defendants were entitled to conclude that the

post-renovation animal care positions at MMRI related to the care of small, genetically

modified animals, as was confirmed by the testimonies from Dr. Kontaridis, Ms.

Guinther, and Mr. Guinther at their depositions. The lack of certain verbiage in the job

description is not compelling evidence that experience with transgenic, genetically

modified mice was unimportant to the Animal Care Assistant position. Indeed, “[i]t is not

a court's role to second-guess an employer's personnel decisions, even if foolish, so

long as they are non-discriminatory.” Brierly, 359 F. Supp. 2d at 291. It is well-settled

law that in employment discrimination cases, “the court must respect the employer's

unfettered discretion to choose among qualified candidates.... Our role is to prevent

unlawful hiring practices, not to act as a ‘super personnel department’ that second

guesses employers' business judgments.” Byrnie v. Town of Cromwell, Bd. of Educ.,

243 F.3d 93, 103 (2d Cir. 2001), superseded in other part by Fed. R. Civ. P. 37(e)

(2015). Still further, testimony from Dr. Kontaridis, Ms. Guinther, and Mr. Guinther

confirms that this experience was crucial to post-renovation animal care at MMRI.

At her deposition, Plaintiff testified that she did not have experience working with

transgenic mice at MMRI. See Puleo Depo., at p. 57 (”Q: Did you have experience

working with transgenic mice at MMRI? A: No.”). In her opposition, Plaintiff appears to

contradict this testimony and claim that she did have experience “work[ing] with

genetically modified mice” while employed by MMRI. Puleo Aff., at ¶ 9. In her sur-reply,

Plaintiff contends that the referenced portion of her deposition she was referring to

whether she had worked with Dr. Kontaridis’s mice, but she points out that in another

portion of her deposition she indicated that she had worked on two studies at MMRI

involving genetically altered mice. See ECF No. 53 (citing Pl. Depo.at 23-25).

However, Plaintiff’s deposition testimony indicates that the genetically altered

mice that she worked with were in a colony that existed from 1989 to 2014 or 2015. See

Pl. Depo. at 23-24. Dr. Kontaridis officially started as the Director of Research on

January 1, 2018, and prior to her official start date she worked for MMRI as a part-time

consultant from October 2017 until January 1, 2018. Even assuming Plaintiff did have

this experience, no evidence indicates that Dr. Kontaridis had knowledge about

Plaintiff’s work with genetically modified mice. See Kontaridis Dec., at ¶ 53. Indeed,

when Dr. Kontaridis responded to Plaintiff’s email about the Manager of Animal

Research Facilities position, Dr. Kontaridis stated that this position was “a different role

from [Plaintiff’s] current position as large animal care administrator, which principally

coordinates the day-to-day care of the large animals.” This indicates that Dr. Kontaridis

was unaware of Plaintiff’s former work with genetically modified mice. Further, Plaintiff

does not allege that Dr. Kontaridis knew or should have known about Plaintiff’s claimed

experience with genetically modified mice, nor does she provide any evidence that

suggests Dr. Kontaridis had that information. See Puleo Aff. at ¶¶ 4-5, 9. Under the

circumstances, and without an application by Plaintiff for the Animal Care Assistant

position, she fails to present a meritorious claim that she was passed over for this

position in favor of a younger male.

Third, to the extent that Plaintiff contends that Defendants’ reason for not hiring

her into the Animal Care Assistant position is pretextual because she had experience

comparable to Mr. Guinther, and that both she and Mr. Guinther would have had to be

trained for the position anyway, the contention is insufficient. Even if Plaintiff did have

some experience with transgenic mice, Plaintiff cannot demonstrate pretext based on

her subjective belief that she was more qualified for the Animal Care Assistant position

than Mr. Guinther. See Tapia v. TWC Admin. LLC, No. 17-CV-431 (KMK), 2018 WL

5016608, at *12 (S.D.N.Y. Oct. 16, 2018) (“Plaintiff’s subjective belief that she was more

qualified for the position, without any evidence showing she was clearly more qualified,

is insufficient to show that race or national origin played a motivating role in the decision

not to promote Plaintiff.”) (collecting cases); Tsaganea v. City Univ. of New York, No. 06

CV 15366(DAB), 2010 WL 1142017, at *2 (S.D.N.Y. Mar. 23, 2010), aff’d sub nom.

Tsaganea v. City Univ. of New York, Baruch Coll., 441 F. App’x 12 (2d Cir. 2011) (“[i]f

an employer decides to weigh some qualifications more heavily when selecting

candidates, it is inappropriate for a court to question this value judgment absent some

plausible showing that the employer’s stated reasons are a pretext for discrimination”).

Here, the record is replete with evidence regarding Mr. Guinther’s experience

working with genetically modified mice. This indicates that by the time Mr. Guinther

joined MMRI, he had ten years of experience working with transgenic, genetically

modified mice similar to those that would comprise the majority of MMRI’s post-

renovation animal population. L. Guinther Depo., at pp. 27-28. Mr. Guinther was also

vetted by MMRI’s independent, consulting Veterinarian, who opined that Mr. Guinther

“ha[d] more experience than we could ask for.” Id. at p. 29; see also Kontaridis Dec., at

¶ 38, Ex. D. Given his vast experience with genetically modified mice, Mr. Guinther was

selected for the Animal Care Assistant position. In light of this evidence, Plaintiff’s claim

that “there is a factual dispute over the qualifications of [Mr.] Guinther” is without merit.

Plaintiff’s MOL, at p. 22. This is particularly true given Plaintiff’s admissions that she is

unfamiliar with Mr. Guinther’s educational and vocational background, or the extent of

his work with mice, rats, and other small animals. Puleo Depo., at p. 48. Further,

[i]t is true that “an employer's disregard or misjudgment of a plaintiff's job

qualifications may undermine the credibility of an employer's stated

justification for an employment decision.” Byrnie v. Town of Cromwell, Bd.

of Educ., 243 F.3d 93, 103 (2d Cir. 2001), superseded in other part by Fed.

R. Civ. P. 37(e) (2015). “At the same time,” courts “must respect”

employers' “unfettered discretion to choose among qualified candidates.” Id.

(internal quotation marks omitted). Thus, “[w]hen a plaintiff seeks to prevent

summary judgment on the strength of a discrepancy in qualifications

ignored by an employer, that discrepancy must bear the entire burden of

allowing a reasonable trier of fact to not only conclude the employer's

explanation was pretextual, but that the pretext served to mask unlawful

discrimination. In effect, the plaintiff's credentials would have to be so

superior to the credentials of the person selected for the job that no

reasonable person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff for the job in question.” Id.

(internal quotation marks omitted).

Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188 (JMF), 2023 WL

4763257, at *6 (S.D.N.Y. July 26, 2023); see Szewczyk, 2022 WL 2037196, at *2

(“’When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy

in qualifications ignored by an employer ... [her] credentials would have to be so

superior to the credentials of the person selected for the job that no reasonable person,

in the exercise of impartial judgment, could have chosen the candidate selected over

the plaintiff for the job in question.’”)(quoting Byrnie, 243 F.3d at 103).

Plaintiff fails to establish that her credentials for the Animal Care Assistant

position, which the employer deemed to be primarily focused on the care of transgenic

mice, were so superior to Mr. Guinther’s credentials that no reasonable person, in the

exercise of impartial judgment, could have chosen Mr. Guinther over Plaintiff for this

position. Indeed, even when construing the evidence in the light most favorable to

Plaintiff, she worked on two studies involving genetic mice a number of years ago

(which Dr. Kontaridis was unaware of) whereas Mr. Guinther had ten years of

experience in this realm and was vetted by MMRI’s consulting veterinarian who opined

that Guinther “ha[d] more experience than we could ask for.” As stated above, “the

court must respect the employer's unfettered discretion to choose among qualified

candidates,” and the Court’s role “is to prevent unlawful hiring practices, not to act as a

‘super personnel department’ that second guesses employers' business judgments.”

Byrnie, 243 F.3d at 103. Plaintiff fails to present sufficient evidence that the decision to

hire Mr. Guenther for the Animal Care Assistant position instead of her was made for

reasons connected to Plaintiff’s gender or age, or that it was in retaliation for her

complaint against Mr. Zelinsky.

Next, Plaintiff claims the proffered reasons for her termination are pretextual

because “multiple emails, regulatory compliance assurances, quarterly reports, building

plans and surveys all indicate that” MMRI was planning to build both small and large

animal facilities in 2017 and 2018. Plaintiff’s MOL, at p. 20. Defendants assert that they

do not and never have contested the fact that plans were initially drawn for both a full-

barrier small animal vivarium and a large animal facility. Kontaridis Dec., at ¶¶ 11-14;

Zielinski Dec., at ¶¶ 7-9. However, as they assert, the evidence indicates that as the

renovation planning was underway, it became clear that MMRI could not simultaneously

construct both a large and small animal facility. Id. Given the transition to small animal

research, the small animal vivarium was prioritized and construction of the large animal

facility was put on hold for several years. Id.; Kontaridis Dec., at ¶¶ 60.

Defendants correctly contend that while Plaintiff cites countless documents which

contemplated the buildout of a large animal space in 2017 and 2018 (Plaintiff’s MOL, at

pp. 20-22), the undisputed record evidence indicates that construction of the large

animal facility did not begin until December 2019 and was not complete until December

2020. Kontaridis Dec., at ¶ 60. And, as Defendants assert, it was not until September

2021 that large animals were actually used at MMRI, and even then, only three pigs

were on premises for the limited purpose of conducting a tutorial on how to conduct a

pig study. Id. at 61. As Defendants argue, the fact that MMRI originally planned to

construct a large animal facility in 2017 to 2018 is immaterial as that is not what

occurred.

Plaintiff also asserts that the decision to terminate her instead of the other two

Research Assistants in Jonathan Cordeiro, Ph.D.’s (“Dr. Cordeiro”) lab was

discriminatory because “Defendants chose to keep a male and terminate Plaintiff who

was a female.” Plaintiff’s MOL, at p. 24. Plaintiff overlooks the fact that two of three

Research Assistants working in Dr. Cordeiro’s laboratory were retained – Robert

Goodrow, who is male, and Jackie Treat, who is female. Any inference of gender

discrimination Plaintiff attempts to present based on the fact that Mr. Goodrow remained

employed is defeated by the fact that Ms. Treat, who like Plaintiff is female, was

similarly retained.

Plaintiff also does not present evidence as to Ms. Treat’s age, and therefore

Plaintiff fails to raise any inference of age discrimination in the decision to terminate her

Research Assistant position. This defeats any claim of pretext related to age. See

McGuire-Welch v. House of the Good Shepherd, 720 F. App'x 58, 60 (2d Cir. 2018)(“To

carry her ADEA pretext burden, the plaintiff must prove age was the ‘but-for’ cause of

the challenged employment action, Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,

106 (2d Cir. 2010), and we have assumed, without deciding, that this standard also

applies to age discrimination claims under the NYSHRL, see id. at 105 n.6.”); see id. at

n. 1 (Even if the Court applies “the lower Title VII standard and require[s] only that age

was a ‘motivating factor,’ [the Court] would still conclude [plaintiff’s] NYSHRL age

discrimination claim fails.”)(citing Shultz v. Congregation Shearith Israel of the City of

N.Y., 867 F.3d 298, 304 (2d Cir. 2017) (internal quotation marks omitted)).

In the end, Plaintiff has not demonstrated pretext on any of the bases she asserts

in her opposition. She has not presented facts upon which a reasonable factfinder could

conclude that Defendants’ reasons for terminating her employment were false or that

age and/or gender discrimination, or even retaliation, were the “real reason” for her

discharge. Isaac v. City of New York, 701 F. Supp. 2d 477, 488 (S.D.N.Y. 2010)

(quotations and citations omitted). Likewise, Plaintiff has not presented facts upon

which a reasonable factfinder could conclude that Defendants’ reasons for hiring Mr.

Guinther and not her for the Animal Care Assistant position were false or that age

and/or gender discrimination, or even retaliation, were the real reason for this

employment decision. Accordingly, the aspect of Defendants’ motion directed to

Plaintiff's discrimination claims is granted, and these claims are dismissed.

V. CONCLUSION

For the reasons discussed above, Defendants’ motion for summary judgment,

ECF No. 41, is GRANTED. The Clerk is respectfully directed to entered judgment for

Defendants and close the file in this matter.

IT IS SO ORDERED.

Dated: September 28, 2023 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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