Grastorf v. Community Bank, N.A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DIANA GRASTORF,

Plaintiff,

v. DECISION AND ORDER

19-CV-1627S

COMMUNITY BANK, N.A.,

Defendant.

I. Introduction

In this action, Plaintiff Diana Grastorf seeks damages from her former employer,

Community Bank, N.A. (“the Bank”), She alleges violation of her rights under Title VII,

the Age Discrimination in Employment Act (“ADEA”), and sex and age discrimination

provisions of the New York State Human Rights Law from the Bank’s termination of her

employment. Before this Court is the Bank’s Motion for Summary Judgment (Docket

No. 331). For the following reasons, Defendant’s Motion is granted.

II. Background

A. Proceedings to Amended Complaint

Diana Grastorf, a female who is over the age of 40, held the position of branch

manager with the Bank until her termination (Docket No. 1). The Bank moved to dismiss

the original Complaint (Docket No. 6), and this Court granted that Motion (Docket No. 11,

Decision and Order, Nov. 17, 2020, Grastorf v. Community Bank, N.A., No. 19CV1627,

1In support of its Motion, the Bank submits the declarations of two Bank officials (district manager

Julie Hall and human resources specialist Valeri Erlandson), with exhibits; its Statement of Material Facts;

and Memorandum of Law, Docket No. 33. The Bank replies with its Reply Memorandum, Docket No. 40.

In opposition, Plaintiff submits her Statement of Undisputed Facts and Memorandum of Law,

Docket No. 39.

2020 WL 6777496), but also granted Plaintiff leave to amend the Complaint, Grastorf,

supra, 2020 WL 677496, at *4, 5. This Court then denied (Docket No. 16, Decision and

Order of Mar. 23, 2021, 2021 WL 1100686) Plaintiff’s Motion for Reconsideration (Docket

No. 12), reasserting leave to amend the Complaint (Docket No. 16, at 4, 5).

B. Amended Complaint (Docket No. 17)

Plaintiff filed her Amended Complaint on April 6, 2021 (Docket No. 17). There, she

claims she left the Bank branch to complete customer business that could not be

performed there (id. ¶ 12) and that she signed out from work to pick up her child from

school (offering to make up the missed time later) (id. ¶ 13). Plaintiff points to a younger

employee, Carrie Beardsley, who would take time from work to pick up her children

without sanction by the Bank (id. ¶¶ 15-18). Plaintiff cites another employee, Jim Knapp,

who routinely traveled to Bank’s customers without sanction (id. ¶¶ 19, 21).

In June 2019, the Bank fired Plaintiff (id. ¶ 23). Plaintiff later learned that she was

terminated for traveling to customers to complete business and leaving work to pick up

her child, despite these practices being acceptable for other employees (id. ¶ 25).

Grastorf alleges upon information and belief that she was terminated because of her

gender and her age (id. ¶¶ 26, 27).

The Amended Complaint alleges two Causes of Action; the First Cause of Action

asserts violations of Title VII, 42 U.S.C. §§ 2000e, et seq., and New York State Human

Rights Law, N.Y. Exec. L. §§ 290, et seq., for sex discrimination in her termination (id.

¶¶ 29-36); the Second of Action alleges violations of the ADEA, 29 U.S.C. § 623, and the

New York Human Rights Law in terminating Plaintiff due to her age (id. ¶¶ 38-46).

C. The Bank’s Motion for Summary Judgment (Docket No. 33)

The Bank answered the Amended Complaint on April 20, 2021 (Docket No. 18).

Reviewing the Statements of Fact submitted here (Docket Nos. 33, 39), Plaintiff’s

objections are to characterizations that she voluntarily retired rather than being terminated

and the scope of her duties prior to her termination (e.g., Docket No. 39, Pl. Statement

¶¶ 1, 3-4).

Plaintiff was employed by the Bank as branch supervisor for the Angelica, New

York, branch (Docket No. 33, Def. Statement ¶ 3). The parties dispute the scope of

Plaintiff’s duties as branch supervisor as to the extent of her work-related travel (compare

Docket No. 33, Def. Statement ¶ 4 with Docket No. 39, Pl. Statement ¶ 4). The Bank

contends that, as branch supervisor, Grastorf was responsible for ensuring that employee

timecards were properly submitted, as well as processing loans and servicing branch

customers and supervision of the five branch employees (Docket No. 33, Def. Statement

¶¶ 4, 5). Plaintiff adds that her duties included business development, fostering customer

relationships, community involvement, lead development, and small business outreach

(Docket No. 39, Pl. Statement ¶ 4), presumably with travel obligations.

Plaintiff denies that she was an hourly, non-exempt employee required to punch in

and punch out each day (id. ¶ 6; but cf. Docket No. 33, Def. Statement ¶ 6), although she

concedes making time entries (see Docket No. 39, Pl. Statement ¶¶ 10, 13-14). Plaintiff’s

termination arose from the manner Plaintiff reported leaving work.

In early 2019 Plaintiff’s supervisor, district manager Julie Hall, became suspicious

that Plaintiff was falsifying her time records (Docket No. 33, Def. Statement ¶ 9). Plaintiff

claims that Defendant has a prejudice and animus in concluding Plaintiff falsified her time

records (Docket No. 39, Pl. Statement ¶ 9). Both parties observe that time records could

only be made in the office (e.g., Docket No. 33, Def. Statement ¶ 14; Docket No. 39, Pl.

Statement ¶¶ 13, 14). Plaintiff made several requests to Ms. Hall to adjust her time

(Docket No. 33, Def. Statement ¶ 11) which Plaintiff claims was due to being out of the

office on business and away from her computer to punch out (Docket No. 39, Pl.

Statement ¶¶ 13-14). Management called or attempted to visit the Angelica branch after

consumer hours and found no one (including Grastorf) present (Docket No. 33, Def.

Statement ¶¶ 10, 15).

Ms. Hall raised her falsification concerns with the Bank’s human resources

generalist, Valeri Erlandson (id. ¶¶ 16-17). Ms. Erlandson investigated these claims by

reviewing Plaintiff’s time entries during a sample two-week period (from May 1-16, 2019)

(id. ¶¶ 20-21). Ms. Erlandson reviewed surveillance camera footage as well as email and

telephone records from that interval to determine if Grastorf’s time entries reflected her

work (id. ¶¶ 22, 23-24).

The Bank claims, for example, that on May 1, 2019, Plaintiff took three hours and

twenty minutes in the middle of the day without punching out and back in (id. ¶¶ 26-28).

The Bank contends that Plaintiff was paid for several hours when she was not in the office

(id. ¶ 29). Ms. Erlandson concluded that Grastorf misreported her time (id. ¶ 33), thus

Grastorf falsified her time entries (id. ¶ 25).

Plaintiff, however, denies that she misrepresented her work hours during the

period of May 1 and 16, 2019 (Docket No. 39, Pl. Statement ¶¶ 29, 32; see id. ¶¶ 26-28,

30-31 (lacks information to admit or deny allegations)).

On June 5, 2019, Ms. Hall and Ms. Erlandson met Grastorf and informed her that

they had sufficient evidence of falsified time entries that justified letting Grastorf go

(Docket No. 33, Def. Statement ¶ 35; see Docket No. 39, Pl. Statement ¶ 35 (admitting

assertion)).

Plaintiff now compares her circumstances to that of two employees (Beardsley and

Knapp) where each was allowed to leave during work hours either for family obligations

or remote customer service (Docket No. 33, Def. Statement ¶¶ 39, 41, 44, 52). The Bank

argues that Beardsley and Knapp worked at different branches than Plaintiff did and

performed different duties from her (id. ¶¶ 42-43, 53-55). The Bank contends that

Beardsley also gave notice to her supervisor when she needed to leave work early (id.

¶ 45).

The Bank claims that for a two-week period Grastorf’s timecards showed her

leaving daily at various times of the day (for example leaving at 3 pm and not returning)

that is inconsistent with childcare obligations (id. ¶¶ 46-48). The Bank contends that

Grastorf also failed to punch out when she left for lunch or for hours at a time (id. ¶¶ 49-

50). The Bank distinguishes Knapp’s position and departure from Grastorf’s because

Knapp was business development officer at a different branch, a job that required him to

be out of the office (id. ¶¶ 54, 55, 51). Plaintiff says she lacks information to admit the

facts surrounding Knapp’s duties but contends that bank managers such as her had

duties to develop business and maintain customer relations (Docket No. 39, Pl. Statement

¶¶ 54, 55). Plaintiff also states she lacks information about Ms. Beardsley (Docket No. 39,

Pl. Statement ¶¶ 43-46).

Grastorf also contends that her absences from the office do not demonstrate that

it was not work-related (id. ¶¶ 46, 49-50). Plaintiff denies leaving at 3 pm and not returning

(id. ¶ 47). She believes her duties compared favorably with Mr. Knapp’s because the

Bank did not state all duties as bank manager; Plaintiff claims her duties included fostering

customer relationships, business development, community involvement, lead

development, and small business outreach (id. ¶ 53). Plaintiff also lacks information

about Mr. Knapp’s position to respond to the allegations (id. ¶¶ 54-55).

III. Discussion

A. Summary Judgment

Summary judgment is appropriate if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party,” id.

The movant seeking summary judgment has the burden (through pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials, Fed.

R. Civ. P. 56(c)(1)) to demonstrate the absence of a genuine issue of material fact, Ford

v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

In deciding a motion for summary judgment, the evidence and the inferences

drawn from the evidence must be “viewed in the light most favorable to the party opposing

the motion,” Addicks v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970). “Only when reasonable minds could not differ as to the import of evidence is

summary judgment proper,” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The

function of the Court is not “to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue of fact for trial,” Anderson, supra,

477 U.S. at 249. “Assessment of credibility and choices between conflicting versions of

the events are matters for the jury, not for the court on summary judgment,” Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat

summary judgment, Anderson, supra, 477 U.S. at 252. A nonmoving party must do more

than cast a “metaphysical doubt” as to the material facts; it must “offer some hard

evidence showing that its version of the events is not wholly fanciful,” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538

(1986). That is, there must be evidence from which the jury could reasonably find for the

nonmoving party, Anderson, supra, 477 U.S. at 252.

This Court’s Local Civil Rules require that movant submit “a separate, short, and

concise statement, in numbered paragraphs, of the material facts as to which the moving

party contends there is no genuine issue to be tried,” W.D.N.Y. Loc. Civ. R. 56(a)(1), and

the opponent to submit a response to each numbered paragraph in the movant’s

statement, id. R. 56(a)(2). Each numbered paragraph in the movant’s statement will be

deemed admitted unless specifically controverted by a correspondingly numbered

paragraph in the opponent’s statement, id.

B. First Cause of Action, Title VII Sex Discrimination

1. Title VII Standards

For her Title VII claim, Plaintiff must identify a protected class (here, women),

identify an adverse action, show that she was qualified for the job, and that the job was

still being performed to allege a Title VII claim, McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see Littlejohn v. City of N.Y.,

795 F.3d 297, 307 (2d Cir. 2015); Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007).

Plaintiff them must allege discrimination either by direct evidence, Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d. 523 (1985) (“TWA”);

Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396

(1977), or (as alleged here, Docket No. 17, Am. Compl., First Cause of Action, ¶¶ 29-36)

by inference from the burden shifting analysis from McDonnell Douglas, supra, 411 U.S.

at 802-04, and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (sex discrimination).

Under McDonnell Douglas and Burdine, Plaintiff bears the burden of

demonstrating that sex was a motivating factor in her adverse employment action,

McDonnell Douglas, supra, 411 U.S. at 802-04; Burdine, supra, 450 U.S. at 252-56.

Under that standard, Plaintiff bears the burden of establishing a prima facie case of

discrimination, Burdine, supra, 450 U.S. at 252-54, by a preponderance of the evidence,

id. at 252-53. “The burden of establishing a prima facie case of disparate treatment is not

onerous,” id. at 253, basically that Plaintiff is employed in a job she was qualified for but

was rejected or otherwise hindered under circumstances that give rise to an inference of

unlawful discrimination, id. The prima facie case creates a presumption of unlawful

discrimination by the Defendant employer, id.

If Plaintiff meets this initial burden, the burden shifts to Defendant to articulate

some legitimate, nondiscriminatory reason for its action, id. at 254-56. If that has been

met, the burden shifts back to Plaintiff to show, beyond the prima facie case, that

Defendant’s determination was the result of discrimination, id. at 256; see McDonnell

Douglas, supra, 411 U.S. at 804-05. “The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff,” Burdine, supra, 450 U.S. at 253. As noted by the Burdine Court, the

McDonnell Douglas evidentiary burden shifting “serves to bring the litigants and the court

expeditiously and fairly to this ultimate question,” id., or as later held in the TWA case,

“that the ‘plaintiff [has] his [or her] day in court despite the unavailability of direct

evidence,’” TWA, supra, 469 U.S. at 121 (quoting Loeb v. Textron, Inc., 600 F.2d 1003,

1014 (1st Cir. 1979)) (alterations added).

Plaintiff alleges two other employees were comparable to her in leaving work.

“Absent direct evidence demonstrating discriminatory intent, ‘[a] plaintiff can

raise an inference of discrimination by demonstrating the disparate

treatment of similarly situated employees but “must show [he] was similarly

situated in all material respects to the individuals with whom [he] seeks to

compare [him]self.”’ Kosack v. Entergy Enters., Inc., No. 14-CV-9605,

2019 WL 330870, *6–7 (S.D.N.Y. Jan. 25, 2019) (quoting Mandell v. County

of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)); see also Brown v. Daikin Am.

Inc., 756 F.3d 219, 230 (2d Cir. 2014) (holding that to establish disparate

treatment, a plaintiff must allege that “[he] was similarly situated in all

material respects to the individuals with whom [he] seeks to compare

[him]self” (citation omitted)).

Novick v. Village of Wappingers Falls, N.Y., 376 F. Supp. 3d 318, 342 (S.D.N.Y. 2019).

To be similarly situated, the coworkers need to be similar in all material respects to the

claimant, id.; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). “All

material respects” here means sowing “that similarly situated employees who went

undisciplined engaged in comparable conduct,” Graham v. Long Is. R.R., 230 F.3d 34,

40 (2d Cir. 2000), that the employees are subject to same workplace standard and “a

reasonably close resemblance of facts and circumstances,” id.

2. Parties’ Contentions

The Bank argues that Plaintiff falsified her time entries and was terminated for that

cause (Docket No. 33, Def. Memo. at 3-6). The Bank next distinguishes the comparator

employees Plaintiff cites in her Amended Complaint (id. at 6-7).

Grastorf’s gender discrimination claim fails as a matter of law, the Bank contends,

because Plaintiff has not shown evidence of discriminatory intent (id. at 9-14). The Bank

claims that Plaintiff was terminated for legitimate, nondiscriminatory reasons, because

she falsified her time records (id. at 15). Further, the Bank argues that Plaintiff cannot

demonstrate pretext (id.).

Plaintiff responds that the reason for her termination is a question of fact that

should preclude summary judgment for the Bank (Docket No. 39, Pl. Memo. at 5). She

contends that the Bank distorted the facts of her alleged falsification “to mask their

egregious and discriminatory actions would be false justice” (id.).

Plaintiff claims that she can demonstrate Defendant’s real motivation in her

termination was unlawful age or gender discrimination (id. at 10), contending that

Defendant is making conclusory assertions of her falsifying time records. Plaintiff further

contends that Ms. Hall promulgated a falsehood that Grastorf falsified her time entries

and convinced Ms. Erlandson of her concerns (id. at 12). She states that her behavior

was the same as “216 other branch managers or other similarly situated employees” (id.

at 13), but Plaintiff has not presented other examples from these managers or employees

beyond Ms. Beardsley or Mr. Knapp (both of whom were not managers).

The Bank responds that Plaintiff has not submitted any evidence in admissible

form to refute the facts alleged in Ms. Erlander and Ms. Hall Declarations (Docket No. 40,

Def. Reply Memo. at 1, 3-5).

3. Title VII Sex Discrimination Claim

First, Plaintiff has not alleged direct evidence of gender discrimination. Hence, the

McDonnell Douglas prima facie case and burden shifting analysis applies.

While Plaintiff is in a protected class for her gender, endured an adverse

employment action in her termination, and her qualifications to perform her former job is

not questioned, Grastorf has not demonstrated that her termination was under

circumstances that rise to an inference of sex discrimination.

Grastorf attempts to assert an inference of discrimination from her comparison of

her treatment with that of two employees who were allowed to leave work. She cites

Ms. Beardsley as a comparable employee, but a female employee citing another female

employee as a comparative belies a gender discrimination claim (see Docket No. 33, Def.

Memo. at 10-11). Furthermore, Plaintiff was branch manager while Ms. Beardsley was a

retail branch assistant at a different branch (Docket No. 33, Def. Statement ¶ 42), not

similarly employed. Grastorf has not alleged Ms. Beardsley had management obligations

or work that required leaving the branch to conclude their duties were similar.

Ms. Beardsley also regularly notified her supervisor when she left early and Plaintiff

allegedly did not adequately notice the Bank when she left.

The other comparator Plaintiff notes is Mr. Knapp. Again, their circumstances are

different. Mr. Knapp is a business development officer at a different branch, a job that

required performance out of the office (Docket No. 33, Def. Statement ¶ 54), an allegation

Plaintiff denies having sufficient information to respond to (Docket No. 39, Pl. Statement

¶ 54). Plaintiff was branch manager and thus expected to be there. She argues that her

job required travel, meeting customers who could not come to the branch (see Docket

No. 39, Pl. Statement ¶ 54). Grastorf, however, does not cite instances when she left the

branch to meet with customers or develop business. Also, Grastorf does not mention

Mr. Knapp’s managerial duties to make his job similar to that of a branch manager.

Thus, the Bank’s treatment of Ms. Beardsley and Mr. Knapp (as compared with

how it treated Grastorf) does not give rise to an inference of discrimination.

Plaintiff did not provide her version of her time entries from the Bank’s sampling

period of May 1-16, 2019. Accepting that Grastorf may have left to meet with customers

outside of the branch, she does not state when these instances occurred or whether the

Bank was aware she left the branch for that purpose. Plaintiff merely makes conclusory

statements that her time out of the branch may be authorized and work-related. Grastorf’s

conclusory statements that her departures may have been work-related is not sufficient

to raise a material issue of fact to preclude summary judgment to Defendant Bank.

The bank’s termination of Plaintiff does not suggest an inference of discrimination.

Plaintiff has not shown that she was terminated because of her sex.

Even assuming Plaintiff somehow had established the non-onerous prima facie

case of discrimination, the Bank has provided a nondiscriminatory reason for terminating

her from the allegation of falsified time records. That accusation is not connected to an

employee’s age or gender. The Bank’s officials investigated the falsification charge

before terminating Grastorf. Plaintiff here responds by conclusory statements that these

allegations were false. These conclusions alone do not show the Bank’s reason was

mere pretext.

Therefore, Defendant’s Motion for Summary Judgment (Docket No. 33) dismissing

the First Cause of Action’s Title VII claim is granted.

C. Second Cause of Action—Age Discrimination

1. Applicable ADEA Standards

To state a prima facie case for age discrimination, Plaintiff must demonstrate she

is in a protected age group (alleging here that she was over 40); that she qualified for her

position; that she was subject to an adverse employment action; and that the adverse

action occurred under circumstances that give rise to an inference of discrimination,

Zurich Am. Life Ins. Co. v. Nagel, No. 20-CV-11091 (JSR), 2022 WL 759375, at *20

(S.D.N.Y. Mar. 12, 2022) (citing Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003))

(Docket No. 33, Def. Memo. at 16). If met, the burden shifts to the Bank to proffer a

legitimate, nondiscriminatory reason for the employment action, McDonnell Douglas,

supra, 411 U.S. at 802. Where the Bank does so, the burden shifts back to Plaintiff to

show that this stated reason is pretext to actual age discrimination, see id.; e.g., Granica

v. Town of Hamburg, 237 F. Supp. 3d 60, 75 (W.D.N.Y. 2017) (Skrenty, J.).

Thus, the prima facie standards for Title VII and ADEA are similar, e.g., McGuire-

Welch v. House of the Good Shepherd, 219 F. Supp. 3d 330, 338 (N.D.N.Y. 2016). New

York State Human Rights Law also has the same burden of proof and burden shifting

from McDonnell Douglas stated above for Title VII claims, Cruz v. Coach Stores, Inc.,

202 F.3d 560, 565 n.1 (2d Cir. 2000) (Sotomayor, J.); Forrest v. Jewish Guild for the Blind,

3 N.Y.3d 295, 310, 786 N.Y.S.2d 382, 394 (2004); see also Banks v. General Motors

LLC, No. 14CV970, 2020 WL 6827707, at *9 (W.D.N.Y. Nov. 20, 2020) (Skretny, J.).

2. Parties’ Contentions, Age Discrimination

As for Plaintiff’s age discrimination claim, the Bank asserts that this claim fails as

a matter of law and on the facts (Docket No. 33, Def. Memo. at 16-18). The Bank argues

the comparator Plaintiff relies upon for her age discrimination claim is distinguishable

because the younger Ms. Beardsley performed different duties than Grastorf and

Ms. Beardsley properly notified her supervisor when she departed for personal reasons

(id. at 16-17).

3. Federal Age Discrimination Claim

For the same reasons stated for Plaintiff’s Title VII claim, Grastorf fails to allege an

age discrimination claim. First, Grastorf does not allege direct evidence of age

discrimination, so she needs to establish a prima facie case. Second, while she alleges

membership in the suspect age classification and her qualifications for her position,

Plaintiff uses Ms. Beardsley (alleged to be younger than 40 years old) as a comparator

for an inference of age discrimination. Again, the circumstances between Plaintiff and

Ms. Beardsley differ in that Ms. Beardsley sought excused leave and Plaintiff did not and

Ms. Beardsley had different duties than Grastorf.

Even if Plaintiff somehow makes her prima facie case, the Bank has a

nondiscriminatory reason for Grastorf’s discharge—the alleged falsified time records—

and Plaintiff’s mere refutation of the accuracy of that allegation does not show it to be

pretextual.

The Bank further states that Plaintiff’s replacement as branch manager was a 55-

year-old woman, a person older than Grastorf when she was terminated (Docket No. 33,

Def. Memo. at 18; Hall Decl. ¶ 21). This belies any motive of age-based animus on the

Bank’s part in terminating Grastorf.

Therefore, Defendant’s Motion for Summary Judgment (Docket No. 33) dismissing

her ADEA claim is granted.

D. Supplemental Jurisdiction and New York State Human Rights Law Claims

1. Supplemental Jurisdiction Standards

Plaintiff alleged her parallel State Human Right Law sex and age discrimination

claims with her Title VII and ADEA claims without alleging them in distinct Causes of

Action. This Court has jurisdiction over these state law claims only upon exercising

supplemental jurisdiction under 28 U.S.C. § 1367. The parties have not addressed

whether this Court should exercise this supplemental jurisdiction over these state law

claims.

Subject matter jurisdiction over these state law claims may be raised by the parties

or by this Court sua sponte, Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-

01 (2d Cir. 2000); LaChapelle v. Torres, 37 F. Supp. 3d 672, 680 (S.D.N.Y. 2014). This

Court must examine its jurisdiction at any point in the proceeding, Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (the district court has

“to consider throughout the litigation whether to exercise its jurisdiction over the case”);

see 13D Charles A. Wright, Arthur R. Miller, Edward H. Cooper, and Richard D. Freer,

Federal Practice and Procedure § 3567.3, at 412 (Jurisd. rev. 3rd ed. 2008).

Under 28 U.S.C. § 1367, this Court may exercise supplemental jurisdiction over

Plaintiff’s state law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d 689, 692

(S.D.N.Y. 1998), or may decline to hear these supplemental state law claims,

13D Federal Practice and Procedure, supra, § 3567.3, at 397. Under § 1367(c), this

Court “may decline to exercise supplemental jurisdiction over a claim” if all original

jurisdiction claims were dismissed, 28 U.S.C. § 1367(c)(3); see 13D Federal Practice and

Procedure, supra, § 3567.3, at 400, 428-29. Alternatively, this Court has the discretion

to exercise supplemental jurisdiction even after dismissal of all original federal jurisdiction

claims, 13D Federal Practice and Procedure, supra, § 3567.3, at 432.

2. New York State Human Rights Law

The standards for the New York Human Rights Law claims are the same as the

standards for Title VII and ADEA claims, e.g., Murray v. Williamsville Cent. Sch. Dist.,

535 F. Supp. 3d 164, 171-72 (W.D.N.Y. 2021) (Skrenty, J.) (citing Ferrante v. American

Lung Ass’n, 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 28-29 (1997) (age discrimination);

Malinowski v. New York State Div. of Human Rights on Complaint of Malinowski,

58 Misc.3d 926, 929-30, 67 N.Y.S.3d 382, 385 (Sup. Ct. Albany Cnty. 2016) (sex

discrimination)).

3. Exercise of Supplemental Jurisdiction

With the identical standards for the New York State Human Rights Law claims

and Title VII and ADEA claims (alleged jointly in the First and Second Causes of Action)

and the dismissal above of Grastorf’s federal discrimination claims alleged therein, this

Court exercises supplemental jurisdiction over these analogous state law claims, cf.

28 U.S.C. § 1367(c)(3). These state law discrimination claims fail on the same grounds

for dismissal of her Title VII and ADEA claims.

IV. Conclusion

Diane Grastorf fails to establish that Community Bank fired her because of her sex

or age after the Bank found discrepancies in her departure times. Her federal age and

sex discrimination claims fail. Therefore, Defendant Community Bank’s Motion for

Summary Judgment (Docket No. 33) dismissing the federal claims alleged in the First and

Second Causes of Action is granted.

Exercising supplemental jurisdiction over Plaintiff’s parallel New York State Human

Rights Law discrimination claims, these claims (and this case) are dismissed.

V. Orders

IT HEREBY IS ORDERED, that Defendant’s Motion for Summary Judgment

(Docket No. 33) dismissing the federal claims alleged in the Amended Complaint (Docket

No. 17) is GRANTED.

FURTHER, that this Court exercises supplemental jurisdiction over Plaintiff’s New

York State Human Rights Law claims and these claims are DISMISSED.

FURTHER, that the Clerk of Court is DIRECTED to close this case.

SO ORDERED.

Dated: February 28, 2023

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge