Tillman v. Grenadier Realty Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

BARBARA TILLMAN,

Plaintiff, MEMORANDUM & ORDER

- against - 21-CV-4827 (KAM)(MMH)

GRENADIER REALTY CORP. and GRC

MANAGEMENT,

Defendants.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Barbara Tillman (the “Plaintiff”) brings three

causes of action against Defendants Grenadier Realty Corp. and GRC

Management (together “Grenadier” or the “Defendants”) based on

alleged discrimination in violation of (1) the Age Discrimination

in Employment Act, as amended, 29 U.S.C. § 621 et seq. (“ADEA”);

(2) the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law

§ 296 et seq.; and (3) the New York City Human Rights Law

(“NYCHRL”), New York City Administrative Code, § 8–101 et seq.

(See ECF No. 1, Complaint (“Compl.”).) Plaintiff seeks declaratory

and injunctive relief; compensatory, liquidated, and punitive

damages; and other appropriate equitable and legal relief. (Id.

at pp. 10-11.) Defendants move for summary judgment dismissing

Plaintiff’s complaint in its entirety. For the reasons set forth

below, the Court grants Defendants’ motion for summary judgment

with regards to Plaintiff’s ADEA claim, and declines to exercise

supplemental jurisdiction over Plaintiff’s state law claims, which

are dismissed without prejudice.

BACKGROUND

I. Factual Background

The following facts are taken from the parties’ Local Rule

56.1 statement and counter-statement, as well as from documents

and transcripts cited in the parties’ Local Rule 56.1 statements.

(See ECF No. 45-2, Defendants’ Statement of Undisputed Material

Facts (“Def. 56.1”); (ECF No. 46-1, Plaintiff’s Counter-Statement

(“Pl. 56.1”).) Except as otherwise indicated, the facts set forth

below from the parties’ Local Rule 56.1 statements are undisputed.

The court summarizes only those facts that are relevant and

material to the adjudication of the instant motion.

Plaintiff Barbara Tillman, who was 84 years old at the time

of the filing of the Complaint, worked for Grenadier between May

1976 and March 2020. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Defendant

Grenadier Realty Corporation is a property management company, and

Defendant GRC Management is an affiliated entity that operates as

an LLC. (Def. 56.1 ¶ 2.) Plaintiff served in many different roles

at Grenadier, beginning with overseeing rentals at a housing

development in Brooklyn called Starrett City (also known as “Spring

Creek Towers”). (Def. 56.1 ¶¶ 4, 14-16; Pl. 56.1 ¶ 4.) Plaintiff’s

most recent role at Grenadier prior to her separation was Director

of Energy Services. (Def. 56.1 ¶ 1.)

Plaintiff’s work at Grenadier included energy conservation

work, including organizing and directing Starrett Energy Services,

an energy conservation department for Grenadier’s properties.

(Id. ¶ 17.) This work led Plaintiff to become Grenadier’s Senior

Vice President for Energy and Special Projects, and Plaintiff’s

duties included overseeing the operations of the Starrett City

Power Plant, Local Law 84 and 87 compliance,1 and other energy and

conservation efforts. (Id. ¶¶ 18-19.) From the 1970s until

February 2019, because Plaintiff performed a substantial amount of

work for both Grenadier and Starrett City, her salary was split

between the two entities, with each paying half. (Id. ¶¶ 22-24.)

Grenadier first began managing the Starrett City property in

the mid-1970s, and the property remained Grenadier’s largest and

most lucrative contract throughout the period in which Grenadier

managed it. (Id. ¶¶ 31-32.) In the fall of 2017, however, the

ownership of Starrett City announced that the property was up for

sale, and on May 8, 2018, the property was sold to a separate

entity, BSC. (Id. ¶¶ 34-35.) BSC severed the property management

relationship with Grenadier shortly thereafter, and Grenadier

ultimately ceased managing the Starrett City property in February

1 “Local Law 84 requires residential housing buildings to report their energy

and water usage to New York City on a yearly basis, while Local Law 87 requires

such buildings to report the state of their energy conservation every ten

years.” (Def. 56.1 ¶ 20.)

2019. (Id. ¶ 36.) The loss of the Starrett City contract was

significant to Grenadier, and a Grenadier Board Member testified

that the Starrett City contract alone made up more than a third of

Grenadier’s entire revenue in 2017 and 2018. (Id. ¶ 37; Pl. 56.1

¶ 37.) Following the loss of the contract, Grenadier began cutting

costs, including revising its severance plan to limit the amount

of severance to which officers were entitled. (Def. 56.1 ¶ 40,

44.) Grenadier ultimately terminated its severance pay plan

completely on July 8, 2019, reduced the amount of vacation

entitlements for employees, and transitioned to a less expensive

health plan. (Id. ¶¶ 46-47.)

Grenadier also underwent an organizational restructuring

process and engaged in several rounds of layoffs following the

loss of the Starrett City contract. (Id. ¶ 49.) As these layoffs

began, Plaintiff communicated with Roderick Robertson

(“Robertson”), Grenadier’s Director of Human Resources and

Administrative Services, in February 2019, inquiring as to whether

she would be terminated from employment. (Id. ¶¶ 6, 59.) Based

on Plaintiff’s communications with Robertson, Grenadier’s Board of

Directors scheduled a meeting with Plaintiff to discuss her

continued employment. (Id. ¶ 60.) Peter Gray (“Gray”), a member

of the Board of Directors, attended the meeting on March 13, 2019,

along with Plaintiff, Robertson, and David Goldban (“Goldban”),

Grenadier’s General Counsel. (Id. ¶¶ 7, 61.) During the meeting,

Gray explained that Grenadier planned to retain Plaintiff in her

current position, given that there were projects available for her

to work on, including cogeneration projects at some properties and

compliance work. (Id. ¶¶ 63-64.) Plaintiff did not immediately

respond to Gray’s request that she continue on as an employee and

asked for time to get back to Grenadier with a final decision.

(Id. ¶¶ 65-66.) Plaintiff later conveyed to Robertson that she

planned to stay at Grenadier in her current role. (Id. ¶ 67; Pl.

56.1 ¶ 67.)

In retaining Plaintiff, Grenadier assumed the full cost of

her salary, given her salary had previously been shared evenly

with Starrett City. (Def. 56.1 ¶ 69.) Around the time that

Plaintiff made the decision to remain in her role, Grenadier

retained Javelin Residential (“Javelin”), a consulting company, to

perform, among other things, an operational assessment of

Grenadier following the loss of the Starrett City contract. (Id.

¶¶ 70-71.) Grenadier and Javelin agreed to a four-month engagement

from April 2019 to July 2019. (Id. ¶ 74.) Javelin completed its

initial review and submitted a report to Grenadier which included

the following recommendation for the Special Projects department,

which fell under Plaintiff:

At the time of our review, we were informed that the

functions of this department had been suspended and the

department head was not working from the corporate

office. A formal review was not conducted; however,

based on our first month of this assignment services

were not being provided to the properties. As the focus

was primarily in the area of energy management, value

exists in maintaining a role. Our initial thought is to

restructure the role within another department to

provide better coverage and accountability.

Recommendation: Restructure this role to sit under

Operations/Technical Services.

(ECF No. 46-3, Exhibit A to the Clark Declaration (“Pl. Ex. A”),

at 8-92 (emphasis in original).)

Around the time that the Javelin review was ongoing, Felice

Michetti (“Michetti”), Grenadier’s then-CEO and Chairperson, was

separated from the company on April 1, 2019. (Def. 56.1 ¶ 83.)

Gray testified in his deposition that the ownership of Grenadier

began to search for a new CEO in “probably February or March” of

2019. (ECF No. 48-3, Deposition of Peter Gray (“Gray Dep.”), at

97.) Discussions began with Ryan Moorehead, the founder of Javelin

-- the company conducting the operational assessment -- at some

point thereafter, and Grenadier and Moorehead reached an agreement

for Moorehead to become CEO in August 2019. (Def. 56.1 ¶¶ 71,

90.) Ultimately, Moorehead was referred to as Grenadier’s CEO

beginning in September 2019, and the company reached a written

agreement regarding his role as CEO in December 2019, with a term

to begin on January 1, 2020, and conclude on December 31, 2021,

subject to renewal. (Id. ¶¶ 91-92.)

After Moorehead joined Grenadier as its new CEO in September

2 Unless otherwise noted, the Court’s pincite refer to the ECF-assigned page

number, and not the internal pagination or bates number of the document itself.

2019, he had an oral conversation3 with Plaintiff regarding whether

she had considered, or would consider, offering her energy services

as a consultant. (Id. ¶¶ 106-08, 111.) Plaintiff rejected

Moorehead’s idea and stated that she wished to remain an employee

of Grenadier. (Id. ¶ 112.) One or two weeks later, on October 4,

2019, Plaintiff emailed Moorehead, referenced the prior

conversation, and stated “I believe I should assume that I’m just

about laid off.” (Id. ¶ 113.) Moorehead replied by email as

follows:

Not the case. You are still employed by GRC, with title,

pay and duties until you hear otherwise from me. I asked

that you take some time to think about the proposal of

becoming a consultant and what that would need to look

like for you.

(ECF No. 46-3, Exhibit KK to the Clark Declaration (“Pl. Ex. KK”),

at 252.) Plaintiff remained in her current position with Grenadier

following the email exchange. (Def. 56.1 ¶ 117.) At some point

thereafter, Moorehead proposed that Plaintiff’s job functions

either be transferred to a third-party company or that Plaintiff

be offered a written consultancy proposal to become an energy

consultant. (Id. ¶ 122.) Grenadier also contemplated further

layoffs, outsourced some accounting functions, and outsourced some

safety and violation services at this time. (Id. ¶¶ 125, 128-29,

3 Plaintiff disputes the characterization of the conversation in the Defendants’

Rule 56.1 statement but agrees that the conversation occurred and that the

topics discussed included, among other things, whether she had considered

switching from begin an employee of Grenadier to being a consultant. (Pl. 56.1

¶ 108.)

135.)

Following Moorehead’s recommendation, Grenadier offered

Plaintiff a consultancy agreement to provide energy services

directly to managed properties. (Id. ¶ 136.) Robertson later

described the idea of offering Plaintiff a consultancy as “a way

to help the company financially, but also maintain [Plaintiff’s]

expertise.” (ECF No. 48-4, Deposition of Roderick Robertson

(“Robertson Dep.”), at 178.) During the discussions between

Plaintiff and Moorehead about becoming a consultant, Plaintiff

asked Moorehead to give her a “proposal” regarding the consultancy

arrangement. (ECF 48-1, Deposition of Barbara Tillman (“Tillman

Dep.”), at 137-39.) Moorehead drafted a written consultancy

agreement with the assistance of counsel and presented the

agreement to Plaintiff on February 28, 2020. (Def. 56.1 ¶ 140.)

The written consultancy agreement stated that Grenadier would

pay Plaintiff a monthly retainer fee to monitor seven different

properties, most of which Plaintiff previously provided energy-

related services to or was familiar with. (Id. ¶¶ 141-42.) In

exchange for her services, Plaintiff would receive a monthly

retainer fee for each of the seven properties for a total of $3,300

per month, which would work out to less than $40,000 per year.

(Id. ¶ 144, 147; see also ECF No. 46-3, Exhibit I to the Clark

Declaration (“Pl. Ex. I”), at 32-39.) Plaintiff declined the

consultancy proposal after receiving it, noting during her

deposition for the instant case that at the time the pay “had a

big effect on me” and that she did not attempt to negotiate a

better deal because she “thought it was hopeless.” (Tillman Dep.

at 141-42.) Moorehead subsequently recommended Plaintiff’s

termination to Grenadier’s Board of Directors. (Def. 56.1 ¶ 154.)

Moorehead informed Plaintiff of her termination during an in-

person meeting on March 6, 2020. (Id. ¶ 159.) Following

Plaintiff’s termination, Grenadier distributed some of Plaintiff’s

energy-related tasks, including Local Law 84 and 87 compliance to

third parties. (Id. ¶¶ 165-66; 169.) Moorehead testified at his

deposition that Grenadier does not pay these third party energy

consultants for their work, and the consultants are instead paid

out of a commission the consultants receive in connection with

energy purchase contracts they execute. (ECF No. 48-5, Deposition

of Ryan Moorehead (“Moorehead Dep.”), at 263-64.)

II. Procedural History

Plaintiff filed a charge against Grenadier alleging unlawful

age discrimination with the United States Equal Employment

Opportunity Commission (“EEOC”) on December 21, 2020, and the EEOC

issued Plaintiff a notice of her right to sue on June 10, 2021.

(See Compl. ¶¶ 5-6.) Plaintiff subsequently filed her complaint

in this case on August 26, 2021, alleging age-based discrimination

under Federal and New York law. (See generally id.) Defendants

appeared and answered on September 24, 2021, and did not assert

any counterclaims. (ECF No. 7, Defendants’ Answer.) The parties

subsequently engaged in discovery and certified the close of all

discovery on September 28, 2022. (ECF No. 23, Status Report.) A

pre-motion conference was held on January 3, 2023, to discuss

Defendants’ anticipated motion for summary judgment, and a

briefing schedule was ordered. (Minute Entry dated January 3,

2023.) After the motion for summary judgment was filed, but before

it had been decided, the parties requested a settlement conference

before Magistrate Judge Marcia Henry, which was held on June 23,

2023. (Minute Entry dated June 23, 2023.)

Although a settlement was not reached, the parties expressed

an interest in continuing settlement discussions, and the Court

terminated the pending motion for summary judgment to facilitate

further settlement discussions. (Docket Order Dated June 26,

2023.) Additional settlement conferences were held on July 13,

2023, and September 13, 2023, but a settlement was not reached,

and the Defendants therefore renewed their motion for summary

judgment on September 20, 2023. (See ECF No. 45, Notice of Motion

for Summary Judgment; ECF No. 45-1 Defendants’ Memorandum of Law

(“Def. Mem.”); ECF No. 46, Plaintiff’s Memorandum of Law in

Opposition (“Pl. Mem.”); ECF No. 47, Defendants’ Reply in Support

(“Def. Reply”).)

LEGAL STANDARD

Defendants move for summary judgment pursuant to Federal Rule

of Civil Procedure 56, which provides that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed R. Civ. P. 56(a). “[T]he mere

existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original). A fact is material if it

“might affect the outcome of the suit under the governing law,”

and a dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248.

For a genuine issue of material fact to exist, there must be

“sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party. If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted.” Id. at 249-50 (citations omitted).

In reviewing a motion for summary judgment, the court “is not

to weigh the evidence but is instead required to view the evidence

in the light most favorable to the party opposing summary judgment,

to draw all reasonable inferences in favor of that party, and to

eschew credibility assessments.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst,

101 F.3d 845, 854 (2d. Cir. 1996)); accord Tolan v. Cotton, 572

U.S. 650, 651 (2014) (“[I]n ruling on a motion for summary

judgment, ‘[t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor.’”

(alteration in original) (quoting Anderson, 477 U.S. at 255)).

The moving party has the burden of establishing the absence

of a genuine dispute as to any material fact, and in opposing

summary judgment, the nonmoving party “need only present evidence

from which a jury might return a verdict in his favor” to defeat

a motion for summary judgment. Anderson, 477 U.S. at 256-57. To

meet this burden, however, a party opposing summary judgment must

“come forward with specific facts showing that there is a genuine

issue for trial,” not merely “show that there is some metaphysical

doubt as to the material facts.” Caldarola v. Calabrese, 298 F.3d

156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-

87 (1986)).

It is “beyond cavil that summary judgment may be appropriate

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

Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).

“[E]ven in the discrimination context, a plaintiff must provide

more than conclusory allegations of discrimination to defeat a

motion for summary judgment.” Schwapp v. Town of Avon, 118 F.3d

106, 110 (2d Cir. 1997). Nonetheless, the Second Circuit has

“emphasized that trial courts must be especially chary in handing

out summary judgment in discrimination cases, because in such cases

the employer's intent is ordinarily at issue.” Chertkova v. Conn.

Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Whidbee

v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir.

2000).

DISCUSSION

Defendants seek summary judgment as to all of Plaintiff’s

claims of discrimination, arguing that her termination “was

completely driven by economic considerations” and therefore her

claims of age discrimination are “untenable.” (Def. Mem. at 3.)

Defendants further argue that the allegedly ageist comments

highlighted by Plaintiff “fail to show discriminatory intent” and

were “singular, isolated questions” made to Plaintiff five months

prior to her termination. (Id.)

Plaintiff argues in opposition that Defendants seek summary

judgment “based largely on the testimony of interested witnesses”

and that the testimony of these witnesses forms the basis for many

of Defendants’ arguments regarding the need for cost-cutting

efforts. (Pl. Mem. at 1-2.) Plaintiff further argues that

Grenadier “removed many of its older employees beginning in March

2019” including Michetti, who was 69 years old at the time of her

removal, and Plaintiff, who was 84. (Id. at 1.)

As explained below, the Court finds that Plaintiff cannot

prevail on her ADEA discrimination claims and accordingly grants

Defendant's motion for summary judgment as to that claim. Having

dismissed Plaintiff’s ADEA claim, the Court declines to exercise

supplemental jurisdiction over the remaining state law claims.

I. ADEA Claim

The Court first examines Plaintiff’s claim arising under the

ADEA, before turning to her state law claims. See Doolittle v.

Bloomberg L.P., No. 22-CV-9136 (JLR), 2023 WL 7151718, at *7

(S.D.N.Y. Oct. 31, 2023) (finding that the 2019 amendment of the

NYSHRL “rendered the standard for NYSHRL claims closer to the

standard of the NYCHRL.”).

A. Legal Framework

Discrimination claims under the ADEA “are analyzed under the

McDonnell Douglas burden-shifting framework.” Carr v. New York

City Transit Auth., 76 F.4th 172, 177 (2d Cir. 2023) (citing Bucalo

v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d

Cir. 2012). Under this framework, “once a plaintiff has

established a prima facie case of discrimination, the burden shifts

to the employer to articulate some legitimate, nondiscriminatory

reason for the employer's action against the employee. If the

employer does so, then the burden shifts back to the employee to

show that the employer's articulated reason is pretext for

discrimination.” Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80,

86–87 (2d Cir. 2022) (internal quotation marks omitted) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804-05

(1973)). “The plaintiff bears ‘the ultimate burden of persuading

the court that she has been the victim of intentional

discrimination.’” Carr, 76 F.4th at 177 (quoting Tex. Dep't of

Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).

“‘[A] plaintiff bringing a disparate-treatment claim pursuant

to the ADEA must prove, by a preponderance of the evidence, that

age was the “but-for” cause of the challenged adverse employment

action.’” McEvoy v. Fairfield Univ., 844 F. App'x 420, 421 (2d

Cir. 2021) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

180, (2009) (finding that “[w]ithout sufficient evidence that

[defendant]'s decision to select a new pre-law director was because

of [plaintiff]'s age, no reasonable juror could find that her age

was a but-for cause of the decision to replace her.”).

B. Prima Facie Case

“Under the McDonnell Douglas scheme, establishment of the

prima facie case in effect creates a presumption that the employer

unlawfully discriminated against the employee.” St. Mary's Honor

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

facie case, a plaintiff with an age discrimination claim must show

(1) that she was within the protected age group, (2) that she was

qualified for the position, (3) that she experienced adverse

employment action, and (4) that the action occurred under

circumstances giving rise to an inference of discrimination.”

Bucalo, 691 F.3d at 129. These are “minimal” requirements, and

the burden they impose on a plaintiff is “not onerous.” Id. at

128.

There is no question that Plaintiff was within the age group

protected by the statutory provisions under which she brings her

claim. The ADEA's protections apply to “individuals who are at

least 40 years of age.” 29 U.S.C. § 631(a). Plaintiff, who was

84 years old at the time she was terminated by Defendant, is

plainly within the protected class under the ADEA. The parties do

not dispute that Plaintiff was qualified to work as the Director

of Energy Services, or that Defendants’ termination of Plaintiff's

employment constituted an adverse employment action. Thus,

Plaintiff can establish the first three elements of a prima facie

case of age discrimination.

“An inference of discrimination can arise from circumstances

including, but not limited to, the employer's criticism of the

plaintiff's performance in [] degrading terms; or its invidious

comments about others in the employee's protected group; or the

more favorable treatment of employees not in the protected group;

or the sequence of events leading to the plaintiff's discharge.”

Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015).

“In the context of age discrimination claims, an inference of

discrimination arises, for example, when the plaintiff is

‘replaced by someone substantially younger.’” Rimpel v.

AdvantageCare Physicians, P.C., 486 F. Supp. 3d 625, 634 (E.D.N.Y.

2020) (quoting Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181,

187 (2d Cir. 2006)).

Plaintiff contends that four sets of circumstances

surrounding her termination give rise to an inference of

discrimination. First, Plaintiff alleges that there was a pattern

of biased treatment at Grenadier, including certain comments by

Moorehead that reflect his age-related bias. (Pl. Mem. at 10-15.)

Second, Plaintiff argues that the removal of Grenadier’s CEO,

Michetti, took place “under circumstances evidencing age bias.”

(Id. at 15-16.) Third, Plaintiff argues that her work was

reassigned to two employees who were, at 60 and 58, more than two

decades younger than her. (Id. at 16-21.) Fourth, Plaintiff

argues that Grenadier’s company-wide layoffs resulted in the

average age of the company’s leadership team decreasing by more

than a decade and a decrease in the percentage of employees over

70 from 9% to 4%. (Id. at 21-24.) The Court will consider each

set of circumstances in turn.

1. Moorehead’s Comments

Plaintiff argues that two comments by Moorehead in particular

support an inference of discrimination. First, “[i]n or around

October 2019, Moorehead asked [Plaintiff] how much longer [she]

planned to work.” (ECF No. 46-4, Declaration of Barbara Tillman

(“Tillman Decl.”), ¶ 35.) Second, “[a]t some point in mid-2019,

Moorehead called [Plaintiff] and asked [her] if [she] was able to

come into the office every day . . . [and] [f]rom the question and

his tone, [she] understood that Moorehead was implying [she] was

too old and feeble to physically make it into the office.” (Id.

¶ 34.) The Court does not find that the remarks by Moorehead

support Plaintiff's ability to establish an inference of

discrimination. As the new CEO of Grenadier, which was facing the

loss of one third of its business, Moorehead was overseeing

Grenadier’s organizational restructuring along with several rounds

of layoffs. (Def. 56.1 ¶¶ 37, 49; Pl. 56.1 ¶ 37.)

Remarks regarding a plaintiff's age or suggesting an

employer's preference for younger workers may give rise to an

inference that the plaintiff's termination was motivated by age

discrimination, though “[t]he more remote and oblique the remarks

are in relation to the employer's adverse action, the less they

prove that the action was motivated by discrimination.” Henry v.

Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010) (internal

quotations omitted). In determining whether a remark is probative

of discrimination, courts “have considered four factors: (1) who

made the remark (i.e., a decision-maker, a supervisor, or a low-

level co-worker); (2) when the remark was made in relation to the

employment decision at issue; (3) the content of the remark (i.e.,

whether a reasonable juror could view the remark as

discriminatory); and (4) the context in which the remark was made

(i.e., whether it was related to the decision-making process).”

Id.

Considering the first factor, it is undisputed that Moorehead

was involved in the decision to terminate Plaintiff. (Def. 56.1

¶ 157.) Nonetheless, the remaining factors weigh against finding

the remarks probative of discrimination. The remarks in question

were made several months before Plaintiff was terminated, and the

Court does not find the content of the remarks to support an

inference of discrimination.

Considering Moorehead’s question about how much longer

Plaintiff planned to work, the Court notes that the Second Circuit

has explained that merely questioning an employee about when they

plan to retire, even repeatedly, “[does] not raise an inference of

age discrimination because they are legitimate questions an

employer could ask an employee.” Bernstein v. New York City Dep't

of Educ., No. 21-2670, 2022 WL 1739609, at *2 (2d Cir. May 31,

2022) (summary order); see also Raskin v. Wyatt Co., 125 F.3d 55,

63 (2d Cir. 1997) (“The ADEA does not make all discussion of age

taboo. Nor does the fact that [a plaintiff's] eligibility for early

retirement came up in a conversation . . . support an inference

that age played a role [in the alleged adverse employment

action].”).

Furthermore, Moorehead’s question about whether Plaintiff was

able to come into the office does not evince age-related

discriminatory intent, based on the record. See Potash v. Fla.

Union Free Sch. Dist., 972 F. Supp. 2d 557, 589 (S.D.N.Y. 2013)

(finding, in the gender discrimination context, that the

“[p]laintiff's mere subjective belief that she was discriminated

against because of her gender does not sustain a gender

discrimination claim”). According to Plaintiff’s deposition

testimony, she was working from home when Moorehead called her and

asked her if she could “come into the office for now on every day.”

(Tillman Dep. at 55.) Plaintiff interpreted Moorehead’s question

as “his asking could I do it, was I disabled or not was the way I

thought he was talking.” (Id.) The Court does not find

Moorehead’s question, singly or in combination with other

comments, to support an inference of discrimination. At the time

of Moorehead’s question, prior to Plaintiff’s termination in March

2020, and prior to remote work engendered by the COVID-19 pandemic,

Plaintiff was working from home, by her own admission, and

Moorehead asked if she was able to work from the office instead,

a reasonable question for any employee who was currently working

remotely. The Court finds Moorehead’s questions are markedly

distinct from those presented in the case cited by Plaintiff,

Tomassi v. Insignia Fin. Grp., Inc., in which a manager “made

frequent references to [the plaintiff’s] age,” suggested that

“[the plaintiff] related well to and ‘could understand the

mentality of’” other senior citizens, and recommended the

plaintiff retire “so that she could ‘take time off to rest.’” 478

F.3d 111, 112 (2d Cir. 2007).

Finally, although the question about Plaintiff’s retirement

plans was made while simultaneously inquiring as to Plaintiff’s

interest in working as a consultant, both of the comments discussed

above were made after Grenadier lost one-third of its revenue from

Starrett City, and at least four months before the decision to

terminate Plaintiff’s employment. See, e.g., Yoselovsky v.

Associated Press, 917 F.Supp.2d 262, 278 (S.D.N.Y. 2013) (listing

cases in which comments made four to five months prior to the

plaintiff's termination did not constitute evidence of

discrimination). Taken together, the Court does not find

Moorehead’s questions support an inference of discrimination.

2. Plaintiff’s Position Following Restructuring and

the Termination of Michetti

Plaintiff also argues that other actions taken by Grenadier

with regards to Plaintiff’s employment and the termination of

Michetti as CEO in April 2019 support an inference of

discrimination. (Pl. Mem. at 10-11, 15-16.) Other actions that

Plaintiff argues support an inference of discrimination include:

(1) Moorehead proposed firing Plaintiff in May 2019 without having

met her; (2) Moorehead only gave Plaintiff a cubicle, and not an

enclosed office, in Grenadier’s new office space; and (3) Moorehead

demoted Plaintiff “on paper” by “placing her under LoRusso.” (Id.

at 10-12.)

The evidence Plaintiff cites in support of the contention

that Moorehead had “proposed terminating” Plaintiff’s employment

prior to meeting Plaintiff is unavailing. Plaintiff offers what

appears to be an email chain dated May 17 through 22, 2019, between

multiple individuals from Grenadier’s Board of Directors, Starrett

Companies LLC, Belveron Partners, and Javelin Residential. (ECF

No. 46-3, Exhibit CC to the Clark Declaration, at 209-13.)

Attached to the email is a spreadsheet showing what the email

describes as “assumptions around eliminating select GRC employees

in the coming months.” (ECF No. 46-3, Exhibit DD to the Clark

Declaration, at 215-24.) Plaintiff is indeed listed in the group

of individuals the document identifies as being slated for

termination, but there is no evidence in the record to suggest

that (1) Moorehead was the individual who proposed Tillman be

terminated4; or (2) that the draft document was ever finalized and

formally submitted to Grenadier for consideration. (Id.)

Furthermore, Moorehead testified at his deposition that “from

[his] recommendations regarding the budget, regarding the payroll,

staffing, [Plaintiff] was never contemplated nor her role

4 Gray testified in his deposition that Michetti had previously recommended

Plaintiff be terminated in connection with the loss of the Starrett City

contract. (Gray Dep. at 51.) Michetti testified that “[t]here was never a

formal decision that Barbara Tillman would be terminated” because the document

that said Plaintiff would be terminated was “a working document.” (Michetti

Dep. at 70.) Michetti explained that BSC, the new owners of Starrett City,

were evaluating whether to bring on existing Grenadier employees in a continuing

role, and that no final decision had been made. (Id. at 70-71.) These

discussions took place prior to the email thread involving Moorehead identified

by Plaintiff. (ECF No. 46-3, Exhibit CC to the Clark Declaration, at 209-13.)

contemplated in the [July 2019] layoff.” (Moorehead Dep. at 219.)

Even if Moorehead had recommended that Plaintiff be terminated,

however, Plaintiff fails to explain why such a recommendation would

serve as evidence of age-related discrimination, beyond stating

that the recommendation was made, as Plaintiff asserts, “before

Moorehead had even met Tillman.” (Pl. Mem. at 11.) Without any

supporting evidence, the Court finds no basis for an inference of

discrimination based on age surrounding the alleged

recommendation.

Regarding Plaintiff’s claim about being given a cubicle, the

Court finds no support for an inference of discrimination.

Following the loss of the Starrett City contract, Grenadier was

required to vacate its office space on the Starrett City property

and move to a one floor space in Industry City that largely

“consist[ed] of open office space” with only eleven enclosed

offices. (Def. 56.1 ¶¶ 93-96.) Plaintiff did not receive an

enclosed office in the new space, nor did several other director-

level individuals, including the Director of Compliance, the

Director of Property Management, and the District Property

Manager. (Def. 56.1 ¶ 99.) Moorehead later explained at his

deposition that Plaintiff did not receive an enclosed office

because “[u]nder the new prescribed [organizational] chart,

[Plaintiff] was not going to be a department head [and] . . . the

nature of special projects did not require [her work] to be under

lock and key[.]” (Moorehead Dep. at 160.) Though the

determination of which employee gets what office real estate is

always a sensitive subject, the Court finds no evidence that

Plaintiff’s treatment in receiving a cubicle supports an inference

of discrimination.

Finally, regarding Plaintiff’s claim about being “demoted” by

being placed under Pat LoRusso (“LoRusso”), the Director of

Construction and Technical Services, the Court finds no evidence

to infer that the reassignment supports an inference of

discrimination. As part of Javelin’s initial review of Grenadier,

led by Moorehead, Javelin conducted interviews with several

executives and reviewed the various departments of the company.

(Moorehead Dep. at 61.) Although the review was initially

scheduled to take place over 90 days, it was later shortened to be

a 30-day review given the necessities of Grenadier’s relocation

out of the Starrett City office space. (Id.) It is not clear why

Plaintiff was not interviewed as part of the review, but Javelin’s

report noted that she “was not working from the corporate office.”

(Pl. Ex. A, at 8.) Coming out of the abbreviated review, Moorehead

and Javelin recommended that Special Projects, the department

Plaintiff oversaw, be brought under Operations/Technical Services,

the department led by LoRusso. (Id. at 6-8.) Plaintiff’s only

evidence that the decision to bring her Special Projects within

LoRusso’s Operations/Technical Services Department was made with

discriminatory intent is her own testimony that Grenadier and

Javelin preferred LoRusso because “he was [not] making [] as much

money as I was” and “they got a better deal on it,” and that

Plaintiff thinks Grenadier “preferred to get rid of the older

people.” (Tillman Dep. at 133.) Thus, Plaintiff herself admits

that her employer’s decision was motivated in part by economic

reasons, a motivation which undermines an inference that her age

was a “but for” cause of the challenged adverse employment action.

McEvoy v. Fairfield Univ., 844 F. App'x 420, 421 (2d Cir. 2021);

see also Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d

Cir. 1997) (“an employer's concern about the economic consequences

of employment decisions does not constitute age discrimination

under the ADEA, even though there may be a correlation with age”).

To the extent Plaintiff “thinks” Grenadier preferred to get rid of

older people, and that motivated her reassignment, her subjective

belief is not sufficient to support an inference of discrimination

absent additional evidence. See Potash, 972 F. Supp. 2d at 589;

see also Mandell v. County of Suffolk, 316 F.3d 368, 381 (2d Cir.

2003) (“generalized descriptions of pervasive [bias] within the

[police department] are not sufficient to support an inference

that” a specific employment action was tainted by that bias”).

Turning next to Michetti’s termination, Plaintiff alleges

that Michetti was fired “under circumstances evidencing age bias.”

(Pl. Mem. at 15.) Michetti explained in her deposition that she

was “surprised” by her termination and that she did not know the

reason why she was terminated. (ECF No. 48-2, Deposition of Felice

Michetti (“Michetti Dep.”), at 88.) Michetti stated in her

deposition that she formed no theories or beliefs as to the reason

her employment was being terminated. (Id. at 89-90.) Plaintiff

admits that she did not speak to Michetti about the circumstances

surrounding Michetti’s termination. (Tillman Dep. at 125.)

Michetti was indeed replaced as CEO by a younger individual,

Moorehead, and Grenadier’s Board described a desire for a “new day

and a new energy” to Michetti when terminating her. (Michetti

Dep. at 91-93.) Ultimately, the Court finds that the decision to

terminate Michetti, which was made in the immediate aftermath of

the loss of the Starrett City contract, is not especially probative

of the decision to terminate Plaintiff more than a year later.

Nonetheless, the Grenadier Board’s comments about a “new energy”

could give rise to an inference of discriminatory intent with

regard to terminating Michetti’s employment, but not Plaintiff,

even when viewed in the light most favorable to Plaintiff.

3. Reassignment of Plaintiff’s Work

Plaintiff does not allege, and the undisputed facts do not

show, that she was replaced by a newly-hired employee, or that her

work was given to a single younger colleague. Rather, Plaintiff

alleges that her work was redistributed to outside consultants

along with LoRusso, and Warren Harr (“Harr”), Director of

Operations. (Pl. 56.1 ¶ 216.) At least one court in this circuit

has found that the redistribution of a terminated employee's work

among multiple younger colleagues is an “unexceptional

circumstance” that is “insufficient to create an inference of

discrimination.” Delaney v. Bank of Am. Corp., 908 F. Supp. 2d

498, 505 (S.D.N.Y. 2012); see also Patterson v. J.P. Morgan Chase

& Co., No. 01-CV-7513 (LMM), 2004 WL 1920215, at *4–5 (S.D.N.Y.

Aug. 26, 2004) (finding no prima facie case where oldest employee

in an office was terminated, but not replaced).

The cases that Plaintiff cites in support of her argument

that the reassignment of her work establishes an inference of

discrimination are inapposite because Plaintiff was not replaced

by a younger employee. In contrast to many of the cases cited by

Plaintiff involving the elimination of positions during a

reduction in force, Plaintiff was not one of many employees in a

department – instead, she was the Director of Energy Services, a

unique role at Grenadier with distinct responsibilities and with

no other employees doing equivalent work inside Grenadier. (Def.

56.1 ¶ 21.) After Plaintiff was terminated, her energy-related

tasks were transferred to third-party energy consultants, and

neither party alleges that any other employees at Grenadier

possessed Plaintiff’s expertise in energy consulting. (Id. ¶ 165.)

By comparison, in Burger v. New York Inst. of Tech., the

Plaintiff was one of “seven non-supervisory persons employed in

the accounting department” and was considered alongside two other

employees for termination as part of an overall reduction in force.

94 F.3d 830, 832 (2d Cir. 1996). Similarly, in Preuss v. Kolmar

Lab'ys, Inc., the defendant, a cosmetics manufacturer, failed to

follow its internal seniority policies in eliminating several

positions. 970 F. Supp. 2d 171, 193 (S.D.N.Y. 2013). The

remaining cases are similarly distinguishable. See, e.g., Artope

v. Ctr. for Animal Care & Control, Inc., No. 05-CV-9283 (KMW)

(RLE), 2009 WL 874037, at *9 (S.D.N.Y. Mar. 27, 2009) (“even though

Defendants eliminated Plaintiff's position . . . [t]he parties

agree that [another individual], in the newly-created position of

Director of Operations, was responsible for duties formerly

performed by Plaintiff [and] Plaintiff was, in effect, replaced”);

Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000)

(“upon [plaintiff’s] termination his duties were transferred in

part to Gounalis, a co-worker, who was 18 years younger than

[plaintiff], and his remaining duties were given to Oravets, an

employee 25 years younger, who was hired three months after Carlton

was discharged.”).

In the instant case, in contrast, Plaintiff was not one of

many interchangeable employees being considered for termination,

nor were her duties subsequently reassigned to a newly-hired

employee shortly after her termination. Instead, Plaintiff’s work

was almost entirely shifted to third-party consultants, with two

of her previous coworkers assuming some responsibility for

supervising the performance of those consultants. The Court finds

that the redistribution of Plaintiff’s work in the instant case

does not support a prima facie case of discrimination.

4. Plaintiff’s Statistical Evidence

Plaintiff argues that “GRC discharged many of its oldest

employees between March 2019 and May 2020,” resulting in a

“decrease in the percentage of GRC employees over 70 from 9% to

4%” and a decreased average age among executives from “61.6 years

old to . . . 48.8 years old.” (Pl. Mem. at 20-21.)

It is true that “[w]here a plaintiff lacks evidence of

employer conduct that directly expresses discrimination, the

plaintiff may rely on statistical or other circumstantial

evidence.” Pollis v. New Sch. for Soc. Rsch., 132 F.3d 115, 123

(2d Cir. 1997). However, “[i]f the plaintiff seeks to prove the

discrimination by statistical evidence, . . . the statistics must

support reasonably the inference that the employer's adverse

decision would not have occurred but for discrimination.” Id.

Accordingly, courts routinely reject statistics that are

incomplete or unreliable. See Cruz v. Bernstein Litowitz Berger

& Grossman LLP, No. 20-CV-8596 (VF), 2023 WL 2691456, at *9

(S.D.N.Y. Mar. 29, 2023) (collecting cases); see also Holowecki v.

Fed. Exp. Corp., 644 F. Supp. 2d 338, 360-62 (S.D.N.Y. 2009),

aff'd, 382 F. App'x 42 (2d Cir. 2010) (rejecting plaintiff's

reliance on “certain raw numbers and statistics” to show that a

“disproportionately small number of FedEx couriers” reached

retirement age because the statistical evidence was “fundamentally

flawed”). Moreover, as will be discussed further infra,

“[a]lthough a generalized statistical analysis of selections in a

[reduction in force] can provide circumstantial evidence of an

inference of discrimination in support of a prima facie case, as

a matter of law, it is not sufficient to establish that the

Defendant's legitimate business rationale for eliminating

Plaintiff's position is false, or that her age or gender was the

real reason for her termination.” Zito v. Fried, Frank, Harris,

Shriver & Jacobson, LLP, 869 F. Supp. 2d 378, 395-96 (S.D.N.Y.

2012).

As a threshold matter, Plaintiff has failed to provide any

expert analysis to support her “statistical” evidence that

purports to show a pattern by Defendant of terminating older

employees. Statistical evidence that is used to show that an

employer “exhibit[s] a pattern of . . . terminating older workers,”

must be “supported by expert analysis,” to meet “minimal standards”

of admissibility. Saenger v. Montefiore Med. Ctr., 706 F. Supp.

2d 494, 515-16 (S.D.N.Y. 2010) (noting that expert analysis is

necessary because without it “courts would have a difficult time

ensuring that juries consider only ‘statistically significant’

data”); see also Bernstein Litowitz Berger & Grossman LLP, 2023 WL

2691456, at *10 (collecting cases).

Even if Plaintiff’s proffered statistics were admissible, the

Court does not find that Plaintiff’s statistical evidence can

establish a pattern of discrimination. For instance, Plaintiff

argues that the average age of the executive team decreased

significantly from March 2019 to May 2020. (Pl. Mem. at 22.)

Plaintiff’s own 56.1 Statement presents evidence that not all of

the employees who departed Grenadier were terminated; some

employees resigned or retired and some of the change in the average

age can be attributed to reorganization of the company’s structure

and changes in the executive structure regarding who reports to

the CEO. (Pl. 56.1 ¶¶ 221, 226, 229.) Similarly, Plaintiff argues

that the percentage of employees over 70 years old decreased

between March 2019 and May 2020, but does not specify whether the

decrease was due to the employees’ employment being terminated, or

voluntary resignation, or other reasons. (Id. ¶ 217.)

Furthermore, Plaintiff fails to argue or offer evidence that older

employees were disproportionately terminated as compared to their

younger counterparts who were similarly situated. Without such

contextual information, no rational jury could draw any inference

regarding Defendant's discriminatory intent, because the evidence

presented by Plaintiff would be insufficient for a jury to find

Defendants were more likely to terminate older employees. See

Saenger, 706 F. Supp. 2d at 516 (statistical evidence could not be

used to show unlawful discrimination where “data in the record

only contain[ed] the ages of the doctors who Defendant fired” but

“d[id] not provide the ages of the doctors that Defendant did not

fire,” and where “Plaintiff d[id] not even claim that the rate of

termination for older employees at [Defendant] exceeds the rate of

termination for younger employees,” rendering the statistical

evidence “incomplete and anecdotal”) (emphasis in original).

5. Plaintiff Has Failed to Establish a Prima Facie

Case

Based on the above, the Court finds that Plaintiff has not

established that a reasonable factfinder could conclude that the

circumstances surrounding her termination create an inference of

age-based discrimination, and therefore Plaintiff has not

established a prima facie case for discrimination under the ADEA.

The only evidence which could possibly support an inference of

discrimination is the termination of Michetti, which took place a

year before Plaintiff’s termination. The Court therefore finds

that summary judgment is appropriate on this claim. Nonetheless,

even assuming, arguendo, that Plaintiff’s evidence was sufficient

to establish a prima facie case, Defendants have met their burden

to produce evidence suggesting a legitimate, nondiscriminatory

reason for Plaintiff’s termination, as explained below.

C. Nondiscriminatory Justification

“[A] plaintiff's demonstration of her prima facie case shifts

the burden of production to the defendant, who must produce

evidence that the adverse employment actions were taken for a

legitimate, nondiscriminatory reason.” Bucalo, 691 F.3d at 132.

“The defendant need not persuade the court that it was actually

motivated by the proffered reasons.” Burdine, 450 U.S. at 254.

To carry its burden, the defendants “must clearly set forth,

through the introduction of admissible evidence, the reasons for

the plaintiff's rejection,” such that the explanation is “legally

sufficient to justify a judgment for the defendant[s]” and

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

plaintiff will have a full and fair opportunity to demonstrate

pretext.” Id. at 255-56.

1. Grenadier’s Weakened Financial State

Defendants argue that they terminated Plaintiff's employment

because of Grenadier’s “severely weakened financial state and the

consequential, good faith restructuring of its business.” (Def.

Mem. at 19.) Defendants’ claim is corroborated by documentary and

testimonial evidence that is not in dispute. Plaintiff admitted

as much in her deposition when she was asked whether the loss of

the Starrett City contract had a large economic impact on

Grenadier:

[Q.] Do you know whether . . . the loss of Starrett

City had a large economic impact on Grenadier? . . .

A. It had a serious impact from what I've been told.

Q. And who told you that?

A. Specifically told? I don't even know if anyone told

me. I just knew it because it was obvious, it's always

been obvious . . . It was a very important property.

(Tillman Dep. at 88.) Gray, a member of Grenadier’s Board,

similarly testified at his deposition that Starrett City was

important to Grenadier, noting that he would estimate that more

than a “third” of Grenadier’s revenue was derived from the Starrett

City contract. (Gray Dep. at 37.)

The loss of the Starrett City contract led Grenadier to take

several steps to cut costs. Gray explained in his deposition that

the “deterioration of the financial condition of [Grenadier] . . .

after the loss of the Starrett City contract . . . made us realize

that [the severance plan] was not . . . something that the company

could afford going forward. . . . [I]t was an entirely economic

decision.” (Id. at 184.) Grenadier was also required to engage

in a significant organizational restructuring process, in order to

determine which of the employees it shared with Starrett City would

become employees of Starrett City’s new management entity, which

employees would remain at Grenadier, and which employees would be

terminated. (See, e.g., Def. 56.1 ¶¶ 49-53; Gray Dep. at 45-58

(describing the process of determining how to restructure

Grenadier following the loss of the Starrett City contract).)

Robertson explained that both his salary and Plaintiff’s were paid

partially by Starrett City “and [after the loss of the Starrett

City contract] we did not know if our positions were going to be

maintained or pulled over or sustained by DVL, by Grenadier, we

didn’t know.” (Robertson Dep. at 112-13.)

Grenadier also took steps to outsource several functions in

the months following the loss of the Starrett City contract, which

included moving certain accounting functions from in-house

positions to external firms. (Moorehead Dep. at 221.) Similarly,

Grenadier’s safety manager was asked to become a consultant, and

when she instead relocated for a different opportunity, her role

was absorbed by the director of risk management along with a third-

party consultant. (Id. at 223.) In preparing the budget for 2020,

Grenadier’s ownership identified a deficit of around $300,000 in

Plaintiff’s department, and asked Moorehead to figure out how to

“right size” the department. (Id. at 229-30.) One of the

recommendations that Moorehead made was “to move energy services

to a third party” – either by providing a proposal to Plaintiff to

do so as a consultant, or by hiring an outside third-party

consultant to assume responsibility for energy services for the

managed properties. (Id. at 230-31.) Moorhead also recommended

downsizing the IT department from three to two employees,

eliminating an office manager, eliminating additional support

staff, and not replacing an accountant that was being terminated.

(Id. at 231-32.)

2. Plaintiff’s Objections to Witness Credibility

Without offering evidence to establish a dispute of material

fact, Plaintiff simply “denies” Grenadier’s explanation that the

layoffs and cost-cutting measures taken after the loss of the

Starrett City contract were made “to cut costs after the loss of

the Starrett City” contract. (See, e.g., Pl. 56.1 ¶ 40 (“Deny

that [revision of the severance policy] was required to cut costs

as the factfinder is entitled to disbelieve the testimony of

Robertson, an interested witness.”); Pl. 56.1 ¶ 50 (“Deny that GRC

has presented any documentary evidence that [layoffs from May 2018

to March 2019] [were] due to the loss of the Starrett City contract

[and] . . . the factfinder is entitled to disbelieve the testimony

of Robertson, an interested witness.”).)

It is well-settled that a party opposing summary judgment

must present admissible evidence to create a genuine dispute of

material fact and that a district court may not make credibility

determinations on a motion for summary judgment. Manganiello v.

City of New York, 612 F.3d 149, 161 (2d Cir. 2010). “If the

credibility of the movant's witness is challenged by the opposing

party and specific bases for possible impeachment are shown,

summary judgment should be denied.” Sterling Nat'l Bank & Trust

Co. v. Federated Dep't Stores, Inc., 612 F. Supp. 144, 146

(S.D.N.Y. 1985). This is true even if the credibility of a

critical interested witness is only partially undermined in a

material way by the non-moving party's evidence. Chem. Bank v.

Hartford Accident & Indem. Co., 82 F.R.D. 376, 378–79 (S.D.N.Y.

1979) (denying summary judgment where non-moving party pointed to

specific facts that “sufficiently attacked the credibility of the

[moving party's] affiants so as to place that fact in issue.”)

Here, the Plaintiff has offered no evidentiary facts that

create genuine factual disputes or undermine the credibility of

the witnesses offered by Grenadier beyond stating that they are

“interested witnesses.” (Pl. Mem. at 25.) Plaintiff has not

proffered any evidence, such as conflicting sworn testimony or

documents, to establish a genuine material factual dispute

warranting a trial. “Broad, conclusory attacks on the credibility

of a witness will not, by themselves, present questions of material

fact.” Island Software & Computer Serv., Inc. v. Microsoft Corp.,

413 F.3d 257, 261 (2d Cir. 2005). Thus, though the Court will

view the testimony of Robertson, Moorehead, and other individuals

employed by Grenadier in the light most favorable to Plaintiff and

must resolve any ambiguities in that testimony in Plaintiff’s

favor, the Court will not, without affirmative evidence warranting

an adverse inference, disregard the witnesses’ uncontroverted

assertions. See id; see also McCullough v. Wyandanch Union Free

Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1999) (“[the plaintiff]

cannot defeat summary judgment on a retaliation claim merely by

impugning [Defendant’s witness’s] honesty”).

To the extent Plaintiff attacks Moorehead’s credibility

directly, (Pl. Mem. at 26), the Court does not find Plaintiff’s

arguments to be supported by the evidence. Plaintiff argues that

Grenadier “falsely state[d] that Moorehead conducted an ‘in-depth

review’” of Plaintiff’s department when he was brought over as a

consultant. (Id.) Plaintiff’s allegations misstate and distort

the record and the Defendants’ 56.1. As discussed supra, Moorehead

explicitly stated in his report that a “formal review was not

conducted” of Plaintiff’s department, and he offered some “initial

thought[s]” based on discussions with others at Grenadier. (Pl.

Ex. A, at 8-9.) Plaintiff also claims that Moorehead falsely

claimed at his deposition not to have proposed laying off Plaintiff

prior to the submission of the 2020 budget, an allegation which is

not supported by the record, as discussed supra. (See ECF No. 46-

3, Exhibits CC and DD to the Clark Declaration (email chain which

does not show that Moorehead actually recommended to Grenadier

that Moorehead be terminated in May 2019).) Finally, Plaintiff

disputes Moorehead’s characterization of an earlier discussion

with Plaintiff about setting up a consultancy to perform energy

work. (Pl. Mem. at 26.) It is clear that Plaintiff walked away

from her conversation with Moorehead concerned that she was going

to be terminated, as stated in her October 4, 2019, email to

Moorehead, (see Def. 56.1 ¶ 113), who replied that that was not

the case in an email immediately afterward (id. ¶ 114). Considered

together, the Court does not find any evidence in the record that

disputes or undermines Moorehead’s credibility or prevents the

Court from considering Grenadier’s undisputed evidence, including

Moorehead’s testimony, in this motion for summary judgment.

3. The Decision to Terminate Plaintiff

As mentioned above, Moorehead recommended that, as part of

efforts to “right size” the department at Grenadier that included

Plaintiff, Plaintiff’s work be transferred to a third party, either

by converting Plaintiff to be a consultant or by hiring a new third

party. (Moorehead Dep. at 229-31.) Subsequently, Moorehead sent

Plaintiff a formal proposal offering her a role as a consultant,

which would pay her significantly less than she earned as full-

time employee. (Id. at 246-48.) Moorehead was prepared to

negotiate the proposal, but Plaintiff rejected it without

submitting any counter-offer. (Id. at 251-52.) Moorehead

subsequently notified Gray that Plaintiff had not accepted the

proposal, and that if she did not make efforts to “continue the

conversation,” Moorehead would terminate her employment by the end

of the first quarter of 2020. (Id. at 254-55.)

Moorehead explained his reasoning behind deciding to

terminate Plaintiff after she rejected the proposal, as being due

to the fact that Plaintiff’s department, Special Projects, was

“not a revenue-generating division on a consistent basis” and that

the cost savings Plaintiff’s work resulted in were “primarily for

the property [and] not for the management company.” (Id. at 269-

70.) Moorehead further explained that Plaintiff’s workload did

not justify the salary that she was earning. (Id. at 270.)

Moorehead based his conclusion about Plaintiff’s workload on

discussions he had with third parties. (Id. at 267-68.) For those

reasons, Moorehead recommended that Plaintiff be terminated. (Id.

at 269-70.) After Plaintiff’s termination, she was not replaced,

and the work she did for properties that Grenadier managed was

shifted to third-party energy consultants. (Id. at 260.) Harr

and LoRusso provided some supervision for the third-party

consultants but did not perform Plaintiff’s work directly. (Id.

at 261-63; Def. 56.1 ¶¶ 163-65.) Finally, Moorehead testified at

his deposition that the third-party energy consultants are not

paid by Grenadier itself, as Plaintiff’s salary was paid directly

by Grenadier, but are instead paid via a commission the consultants

receive in connection with energy purchase contracts. (Moorehead

Dep. at 263-64.)

Grenadier’s evidence that Plaintiff’s role at the company was

eliminated due to the deteriorating financial situation in the

wake of losing the Starrett City contract is sufficient to satisfy

Defendants’ burden of production. Financial hardship and the

elimination of a position constitutes a “legitimate,

nondiscriminatory reason” for Plaintiff’s termination. Bucalo,

691 F.3d at 132. Because the evidence produced by Grenadier is

undisputed “admissible evidence which would allow the trier of

fact rationally to conclude that the employment decision [was] not

[] motivated by discriminatory animus,” Plaintiff’s prima facie

case, to the extent it was sufficiently made, is adequately

rebutted. Burdine, 450 U.S. at 257.

D. Pretext

At the third stage of the McDonnell Douglas inquiry, the

Plaintiff “may no longer simply rely on having made out a prima

facie case” and the Court, in deciding whether to grant summary

judgment, must “determine, by looking at the evidence [Plaintiff]

has proffered and the counter-evidence [Defendants] [have]

presented, whether [Plaintiff] has raised sufficient evidence upon

which a reasonable jury could conclude by a preponderance of the

evidence that her age was a ‘but for’ cause of the [Defendants’]

decision to fire her.” Gorzynski v. JetBlue Airways Corp., 596

F.3d 93, 107 (2d Cir. 2010). In so deciding, “it is important to

consider whether the explanations that [Defendants] gave for [the

Plaintiff's] firing were pretextual.” Id.

To prevail on a claim brought under the ADEA, a plaintiff

“must prove by a preponderance of the evidence (which may be direct

or circumstantial), that age was the ‘but-for’ cause of the

challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S.

167, 177-78 (2009). Here, no reasonable jury could conclude by a

preponderance of the evidence that that age discrimination was the

“but-for” cause of Plaintiff’s termination.

The Court has already discussed in detail the arguments by

Plaintiff to establish that Plaintiff’s termination was motivated

by age discrimination. Having found that Plaintiff failed to make

out a prima facie case of discrimination under the ADEA, the Court

likewise finds that Plaintiff has failed to present sufficient

evidence that age discrimination was the “but-for” cause of her

termination. As described supra, Plaintiff provides no evidence

to refute Defendants’ evidence of Grenadier’s financial distress

and the resulting need for layoffs, reorganization, and cost-

cutting beyond generalized and unsupported attacks on witness

credibility.

Plaintiff has also offered no evidence that Plaintiff was

replaced after she was terminated, and it is undisputed that her

work was primarily transferred to third-party consultants who were

supervised by two remaining employees of Grenadier. The Court,

therefore, concludes that Plaintiff was not replaced by a younger

worker. See Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556,

573 (E.D.N.Y. 1999) (“[A] discharged employee is not replaced when

another employee is assigned to perform the plaintiff's duties in

addition to other duties, or when the work is redistributed among

other existing employees already performing related work. Rather,

a person is replaced only when another employee is hired or

reassigned to perform the plaintiff's duties.” (citation

omitted)). The fact that Plaintiff was not replaced, and her

duties were instead assumed by a combination of third-party

consultants and existing employees strongly supports a conclusion

that Grenadier’s reason for terminating Plaintiff was not

pretextual.

Viewing the record as a whole, and in the light most favorable

to Plaintiff as the non-moving party, the Court finds that even if

Plaintiff has established an issue of fact as to whether

Defendants’ reasons were pretextual, it is a “weak” one, see Reeves

v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000), and

the record is completely devoid of any evidence suggesting that

age discrimination was the real, but for reason behind Grenadier’s

decision. Accordingly, summary judgment in favor of Defendants

and Plaintiff's ADEA claim is dismissed.

II. State Law Claims

A. NYCHRL Claim

Plaintiff also brings a claim of age discrimination under the

NYCHRL. Because those claims are before the Court solely through

its supplemental jurisdiction—and the Court has granted summary

judgment to Grenadier on Plaintiff’s federal claim—the Court

declines to reach the merits of the NYCHRL claim.

“District courts may decline to exercise supplemental

jurisdiction over a claim if the district court has dismissed all

claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3). “[I]n the usual case in which all federal-law claims

are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine—judicial

economy, convenience, fairness, and comity—will point toward

declining to exercise jurisdiction over the remaining state-law

claims.” Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt.

Inc., 712 F.3d 705, 727 (2d Cir. 2013) (internal quotation marks

and citations omitted); Spiegel v. Schulmann, 604 F.3d 72, 83 (2d

Cir. 2010) (“[T]he district court may also decide whether to

exercise supplemental jurisdiction over this claim; it may

determine that this area of law would benefit from further

development in the state courts and therefore dismiss the claim

without prejudice to refiling in state court.”); see also One

Commc'ns Corp. v. J.P. Morgan SBIC LLC, 381 F. App'x 75, 82 (2d

Cir. 2010) (summary order) (“If all of a plaintiff's federal claims

are dismissed, a district court is well within its discretion to

decline to assert supplemental jurisdiction over any state law

claims”); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998)

(“In general, where the federal claims are dismissed before trial,

the state claims should be dismissed as well.”).

In this Circuit, NYCHRL claims must be analyzed “separately

and independently from any federal and state law claims.” Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d

Cir. 2013). Given the “slow development of case law regarding the

appropriate standard by which to evaluate NYCHRL claims at the

summary judgment stage,” EEOC v. Bloomberg L.P., 967 F. Supp. 2d

816, 835 (S.D.N.Y. 2013), the separate and independent inquiry the

Court would need to undertake in this “evolv[ing]” area of law,

see id. at 835 n.6, the factors of convenience, comity and judicial

economy favor declining jurisdiction over Plaintiff’s NYCHRL

claims, see, e.g., Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d

5, 37 (E.D.N.Y. 2015) (declining to exercise supplemental

jurisdiction over NYCHRL claims after granting defendants summary

judgment as to ADEA and NYSHRL age discrimination and retaliation

claims); Downey v. Adloox Inc., No. 16-CV-1689 (JMF), 2018 WL

5266875, at *9 (S.D.N.Y. Oct. 23, 2018) (declining to exercise

supplemental jurisdiction over NYCHRL claims after granting

summary judgment for defendants with respect to ADEA and NYSHRL

claims); Herrnson v. Hoffman, No. 19-CV-7110 (JPO), 2023 WL

2647603, at *5 (S.D.N.Y. Mar. 27, 2023) (declining to exercise

supplemental jurisdiction over NYCHRL claims after granting

defendants summary judgment on ADEA claim).

Accordingly, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s claims under the NYCHRL, and they

are dismissed, without prejudice to her right to re-file them in

state court.

B. NYSHRL Claim

Plaintiff also brings claims of age discrimination under the

NYSHRL, over which the Court also declines to exercise supplemental

jurisdiction.

Until recently, courts have adjudicated claims brought under

the ADEA and NYSHRL together, as these statutes applied identical

standards. See, e.g., Downey v. Adloox, Inc., 789 F. App'x 903,

905 (2d Cir. 2019) (“Because ADEA claims have been held to be

identical to NYSHRL claims, both are analyzed under the same

framework.”) As under the ADEA, plaintiffs bringing age-

discrimination claims under the NYSHRL had the burden of proving

that age was the “but-for” cause of the challenged adverse

employment action. See Gorzynski, 596 F.3d at 105 n.6 (“The law

governing ADEA claims has been held to be identical to that

governing claims made under the NY[S]HRL . . . we assume, without

deciding, that the Supreme Court's Gross decision affects the scope

of the NY[S]HRL law as well as the ADEA.”) (citing Sutera v.

Schering Corp., 73 F.3d 13, 16 n.2 (2d Cir. 1995)).

The similar standards, however, have recently changed. “The

NYSHRL was amended on August 19, 2019 to provide that its

provisions should be construed liberally ‘regardless of whether

federal civil rights law, including those laws with provisions

worded comparably to the provisions of this article, have been so

construed.’” Deveaux v. Skechers USA, Inc., No. 19-CV-9734 (DLC),

2020 WL 1812741, at * 3 n.3 (S.D.N.Y. Apr. 9, 2020) (quoting Act

of Aug. 12, 2019, sec. 6, 2019 N.Y. Laws 160 (codified at N.Y.

Exec. Law § 300 (2019))). “In other words, the NYSHRL was amended

to render the standard for claims closer to the standard under the

NYCHRL.” Summit v. Equinox Holdings, Inc., No. 20-CV-4905 (PAE),

2022 WL 2872273, at *18 (S.D.N.Y. July 21, 2022) (internal

quotation marks and citation omitted); see also Williams v. N.Y.C.

Transit Auth., 97 N.Y.S.3d 692, 695-96 (2d Dep’t 2019) (“[W]here

an adverse employment action is shown to be ‘motivated by

[unlawful] animus, even in part, the defendant may be held liable’

under the NYCHRL.”) (quoting Singh v. Covenant Aviation Sec., LLC,

16 N.Y.S.3d 611, 616 (2d Dep’t 2015)). The amendment was signed

in August 2019 and applies to claims occurring on or after October

11, 2019, without retroactive effect. See McHenry v. Fox News

Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y. 2020).

Because Plaintiff’s primary claim relates to her termination

in March 2020, the Court finds that the NYSHRL amendment would

apply to at least that aspect of the instant case, if not all of

Grenadier’s actions leading up to her termination. The Defendants

initially did not account for the revised standard in their motion

for summary judgment, analyzing the ADEA and NYSHRL claims as

coextensive. (See Def. Mem. at 5 n.2 (“Age discrimination claims

under the NYSHRL are analyzed under the same framework as the

ADEA.” (citation omitted)).) Plaintiff noted this oversight and

explained the impact of the 2019 amendments on the NYSHRL. (Pl.

Mem. at 8.) Defendants subsequently argued in their reply briefing

that “nearly all of Plaintiff’s allegations occurred prior to

October 2019, including her demotion claim” but went on to address

Plaintiff’s NYSHRL claim alongside Plaintiff’s NYCHRL claim “to

clearly illustrate that Plaintiff’s state law claim is still

meritless.” (Def. Reply at 9 n.6.) That the Defendants initially

briefed the NYSHRL claims under an outdated legal standard, at

least in part, reinforces the reasons, articulated above in the

discussion of Plaintiff’s NYCHRL claims, for not exercising

supplemental jurisdiction over these claims.

Considering the factors for exercising supplemental

jurisdiction over the NYSHRL claims, the Court also dismisses those

claims, like the NYCHRL claims, without prejudice. See, e.g.,

Halkitis v. N.Y.C. Dep't of Educ., No. 19-CV-11753 (JMF), 2022 WL

392911, at *7 (S.D.N.Y. Feb. 9, 2022) (declining to exercise

supplemental jurisdiction over NYSHRL and NYCHRL claims as matters

“best left to the courts of the State of New York”) (citations

omitted); Summit, 2022 WL 2872273, at *18 (same).

CONCLUSION

For the foregoing reasons, the Court grants Defendants’

motion for summary judgment as to Plaintiff’s ADEA claims and

declines to exercise supplemental jurisdiction over Plaintiff’s

NYSHRL and NYCHRL claims. Plaintiff's claims under the NYSHRL and

NYCHRL are dismissed without prejudice to Plaintiff’s right to re-

file and pursue them in state court. The Clerk of Court is

requested to enter judgment in favor of the Defendants on

Plaintiff’s ADEA claims, dismiss the NYSHRL and NYCHRL claims

without prejudice, and close this case.

SO ORDERED.

Brooklyn, New vork + “72 hn

i) □□ et te

HON. KIYO A. MATSUMOTO —t*™”

United States District Judge

Eastern District of New York

49