Shaughnessy v. Scotiabank

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MICHAEL SHAUGHNESSY,

Plaintiff,

No. 22 CV 10870 (LAP)

-against-

OPINION & ORDER

SCOTIABANK, ET AL.,

Defendants.

The Bank of Nova Scotia (“Scotiabank”), Kay Lazidis, Michael

Trombly, and Elyssa Herman (collectively, “Defendants”) move,1

pursuant to Federal Rules of Civil Procedure (“Rules”) 12(b)(1)

and 12(b)(6), to dismiss Michael Shaughnessy’s (“Plaintiff”)

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

Law § 296, et seq., and New York City Human Right Law (“NYCHRL”),

N.Y.C. Admin. Code § 8-107, et seq. Defendants also move, pursuant

to Rule 26(d), for expedited discovery to determine Plaintiff’s

employment status. Plaintiff opposes both Defendants’ motion to

dismiss and motion to expedite discovery.2 For the following

reasons, Defendants’ motion to dismiss is GRANTED in part and

1 (See Notice of Mot. to Dismiss, dated Mar. 17, 2023, [dkt. no. 8];

Defs.’ Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’ Br.”),

dated Mar. 17, 2023 [dkt. no. 9]; Defs.’ Reply Mem. of Law in Supp.

of Mot. to Dismiss (“Defs.’ Reply”), dated Apr. 24, 2023 [dkt.

no. 17]); Defs.’ Suppl. Reply Mem. of Law in Supp. of Mot. to

Dismiss (“Defs.’ Suppl. Reply), dated June 7, 2023 [dkt. no. 25].)

2 (See Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s

Opp’n Br.”), dated May 15, 2023 [dkt. no. 22].)

DENIED in part, and Defendants’ motion for expedited discovery is

DENIED.

I. Background

The facts below are drawn from Plaintiff’s amended complaint.

(See Am. Compl. (“Amended Complaint” or “AC”), dated Apr. 28, 2023

[dkt. no. 19].) The Court accepts as true all factual allegations

in the Amended Complaint and must draw all reasonable inferences

in favor of Plaintiff.

A. Factual Background

Plaintiff was 61 years old when he was denied a Director-level

role at Scotiabank, a multinational banking and financial services

company. (See AC ¶¶ 1-2, 53.) In June of 2019, Plaintiff joined

Scotiabank’s New York City-based U.S. Program Management

Organization (“PMO”), which led regulatory and business

initiatives for Scotiabank. (Id. ¶¶ 18-19.) Plaintiff came to

the role with 37 years of experience in derivatives, securities,

and banking. (Id. ¶ 18.)

Plaintiff alleges that, even though he was hired as an

independent contractor through a third-party company called

Procom, he “functioned as a Scotiabank employee in all relevant

facets.” (Id. ¶ 20.) Between 2019-2021, Plaintiff was assigned

to work in Scotiabank’s office located at 250 Vesey Street in

Manhattan, New York. (Id. ¶ 24.) Plaintiff carried a full-time

workload “exclusively” for Scotiabank and could not have held other

employment. (See id. ¶¶ 34-35.) Plaintiff’s primary

responsibilities included planning, executing, and monitoring

projects, and Plaintiff was assigned to work with other members of

the PMO group as well as other employees at Scotiabank. (Id.

¶ 38.)

There, Scotiabank instructed Plaintiff how to perform his

responsibilities, oversaw the terms and conditions of his work,

and treated him in the same manner as it treated its rank-and-file

employees. (Id. at ¶ 40.) Scotiabank provided Plaintiff a copy

of the employee handbook and equipment, including a laptop,

IT-network/server, templates, and software, and it required

Plaintiff to communicate through his Scotiabank email account.

(Id. ¶¶ 40, 43.)

Scotiabank determined Plaintiff’s hours, including responding

to requests for time off and holidays. (Id. ¶36.) Plaintiff

reported to Scotiabank employees, who assessed his work and

assigned him projects. (Id. ¶ 41.) He attended weekly meetings

with the PMO group and Defendant Elyssa Herman, the “Vice

President, PMO,” whom Plaintiff alleges had “authority to hire,

terminate, and affect” his employment. (See id. ¶¶ 15, 42.)

In March of 2020, the COVID-19 pandemic reached New York City.

Scotiabank closed its offices and, on March 16, 2020, mandated

that the PMO group work remotely until further notice. (Id.

¶¶ 24-25.) On March 20, 2020, then-New York Governor Andrew Cuomo

required businesses other than those providing “essential”

services to close all in-person offices and to keep 100 percent of

their workforces at home. (Id. ¶ 26.) Accordingly, Plaintiff

began to work remotely from his home in Fairfield County,

Connecticut. (Id. ¶¶ 10, 27.)

While working remotely in Connecticut, Plaintiff continued to

pay New York State and City taxes for 2020 and 2021. (Id. ¶ 28.)

Plaintiff alleges that at no point did Scotiabank notify him that

he was “anything but a New York [S]tate and City-based worker.”

(Id. ¶ 30.) Between 2020 and 2021, Plaintiff’s contract was

renewed three times due to Plaintiff’s “strong and consistent

performance.” (Id. ¶ 48.)

In March of 2021, Defendant Herman informed Plaintiff that

she wanted him to fill one of two vacant Director positions within

the PMO group. (Id. ¶ 49.) On March 29, 2021, Plaintiff accepted

the offer. (Id. ¶ 50.)

On March 31, 2021, Plaintiff attended a video meeting with

the Scotia Capital (USA), Inc. Management Committee. (Id. ¶ 51.)

Also in attendance were Defendants Kay Lazidis, the Managing

Director and Chief Operating Officer of U.S. Global Capital

Markets, and Defendant Michael Trombly, the Director and U.S. Chief

Operating Officer of Equities. (Id. ¶ 52.) Plaintiff had worked

with Defendants Lazidis and Trombly on two prior projects but had

never met them face-to-face. (Id.) As Plaintiff alleges, this

video meeting was the first time that Defendants Lazidis and

Trombly (whom Plaintiff alleges to be in their 30s and 40s,

respectively) saw Plaintiff – “a then 61-year-old man with gray

hair.” (Id. ¶¶ 52-53.)

After the March 31, 2021 meeting, Defendants Lazidis and

Trombly began to criticize Plaintiff’s work for the first time in

Plaintiff’s tenure and to assign him unreasonable deadlines. (See

id. ¶¶ 54-57.)

On April 20, 2021, Plaintiff asked Defendant Herman when his

promotion would take effect, and she replied that his compensation

package was still under review. (Id. ¶ 59.) On May 13, 2021,

just weeks later, Defendant Herman announced that a woman in her

40s would instead fill one of the vacant Director positions. (Id.

¶ 60.)

Four days later, on May 17, 2021, Plaintiff complained

internally to the Vice President and Head of Regulatory and

Business Initiatives that he believed Defendants Herman, Lazidis,

and Trombly had failed to hire him for the Director role due to

his age. (Id. ¶ 62.) Plaintiff was initially permitted to take

paid medical leave to treat the acute anxiety and depression that

resulted but was informed shortly thereafter that, as an

independent contractor, he was ineligible for such benefits. (Id.

¶ 63.)

On July 14, 2021, Plaintiff filed a charge of discrimination

with the United States Equal Employment Opportunity Commission

(“EEOC”). (Id. ¶ 66.) On August 26, 2021, Plaintiff received

notice that Scotiabank had decided to terminate Plaintiff’s

contract, which was previously scheduled to expire on December 17,

2021, effective as of October 29, 2021. (Id. ¶ 67.) Scotiabank’s

PMO group resumed work in person at the New York City office

location on November 1, 2021. (Id. ¶ 32.)

B. The Amended Complaint

On December 23, 2022, Plaintiff filed the instant action.

(Dkt. no. 1.) On April 28, 2023, Plaintiff filed his Amended

Complaint, alleging claims of age discrimination and retaliation

in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. §§ 621, et seq., the NYSHRL, and the NYCHRL.

(See generally AC.) Defendants move (1) to dismiss Plaintiff’s

State and City law claims, and (2) to expedite discovery with

respect to Plaintiff’s ADEA claims. (Defs.’ Br. at 5-6, 8-11.)

Plaintiff opposes Defendants’ motion. (See generally Pl.’s

Opp’n Br.)

II. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(1)

Pursuant to Rule 12(b)(1), “[a] case is properly dismissed

for lack of subject matter jurisdiction . . . when the district

court lacks the statutory or constitutional power to adjudicate

it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Moreover, on a motion to dismiss for lack of subject matter

jurisdiction, “the court accepts all material factual allegations

in the complaint as true but does not necessarily draw inferences

from the complaint favorable to the plaintiff.” Pedroza v. Ralph

Lauren Corp., No. 19-CV-08639 (ER), 2020 WL 4273988, at *2

(S.D.N.Y. July 24, 2020).

B. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6), a party may move to dismiss a

complaint for “failure to state a claim upon which relief may be

granted” where a plaintiff has failed to put forth “enough facts

to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

In the discrimination context, a “complaint need not allege

facts establishing each element of a prima facie case of

discrimination to survive a motion to dismiss,” but “must at a

minimum assert nonconclusory factual matter sufficient to nudge

its claims across the line from conceivable to plausible to

proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254

(2d Cir. 2013) (alterations omitted).

C. Federal Rule of Civil Procedure 26(d)

Federal Rule of Civil Procedure 26(d) provides, in relevant

part, that a party to a civil action may not seek discovery before

the parties have conferred pursuant to Rule 26(f). Fed. R. Civ.

P. 26(d). In deciding whether to grant expedited discovery, courts

in this district “examine the discovery request on the entirety of

the record to date and the reasonableness of the request in light

of all the surrounding circumstances.” Doe1 v. Congregation of

Sacred Hearts of Jesus & Mary, No. 21-CV-6865 (VSB), 2022 WL

2901403, at *1 (S.D.N.Y. July 22, 2022) (internal quotation marks

and citation omitted). In doing so, courts apply a flexible

standard of “reasonableness” and “good cause.” Stern v. Cosby,

246 F.R.D. 453, 457 (S.D.N.Y. 2007) (quoting Ayyash v. Bank

Al-Madina, 233 F.R.D. 325, 326–27 (S.D.N.Y. 2005). A party may

show good cause through evidence of “(1) irreparable injury,

(2) some probability of success on the merits, (3) some connection

between the expedited discovery and the avoidance of the

irreparable injury, and (4) some evidence that the injury that

will result without expedited discovery looms greater than the

injury that the defendant will suffer if the expedited relief is

granted.” Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982).

III. The Motion to Dismiss

Plaintiff alleges that Defendant Scotiabank violated the ADEA

(1) by failing to promote him to a Director-level position, and

(2) by retaliating against him after he reported the alleged

discrimination. (AC ¶¶ 71, 75.) Plaintiff also brings

supplemental claims against all Defendants, under the NYSHRL and

the NYCHRL, for age discrimination and retaliation. (Id. ¶¶ 79,

83, 92, 96.)3 Finally, Plaintiff sues Defendants Herman, Lazidis,

and Trombly, in their individual capacities, for allegedly aiding

and abetting Scotiabank’s unlawful discrimination and retaliation.

(Id. ¶¶ 87, 100.) For the following reasons, Counts Three, Four,

Six, and Seven are dismissed against the individual Defendants,

but they survive as applied to Scotiabank. Counts Five and Eight

are dismissed with prejudice.

A. Plaintiff’s Employment Status

Defendants primarily argue that Plaintiff cannot bring claims

under the ADEA because he was an independent contractor and is

therefore ineligible for ADEA protection. (Defs.’ Br. at 8-10.)

The operative test for determining whether a party is an employee

or an independent contractor under the ADEA is the fact-intensive

inquiry set out in Community for Creative Non-Violence v. Reid,

490 U.S. 730 (1989). Reid directs courts to weigh the following

factors:

[1] the hiring party's right to control the manner and

means by which the product is accomplished . . .

[;][2] the skill required; [3] the source of the

3 Notably, Counts Six and Seven only allege conduct by Scotiabank

despite including headings that purportedly assert claims against

“all Defendants.”

instrumentalities and tools; [4] the location of the

work; [5] the duration of the relationship between the

parties; [6] whether the hiring party has the right to

assign additional projects to the hired party; [7] the

extent of the hired party's discretion over when and how

long to work; [8] the method of payment; [9] the hired

party's role in hiring and paying assistants;

[10] whether the work is part of the regular business of

the hiring party; [11] whether the hiring party is in

business; [12] the provision of employee benefits; and

[13] the tax treatment of the hired party.

Id. at 751-52. In applying the Reid factors to anti-discrimination

cases, including claims under the ADEA, a court is to give “‘added

weight’ to the first factor – the hiring party's right to control

the manner and means of work – due to its quintessential importance

in the common law conception of an employee-employer

relationship.” Ward v. Cohen Media Publ’ns LLC, No. 1:22-CV-06431

(JLR), 2023 WL 5353342, at *5 (S.D.N.Y. Aug. 21, 2023) (quoting

Meyenhofer v. Larsen & Toubro Infotech Ltd., 503 F. Supp. 3d 39,

46 (S.D.N.Y. 2020)). Courts in this district determine whether

the employer exercised “control” based on whether the hiring party

oversees that party’s work, tasks, or responsibilities. See

Meyenhofer, 503 F. Supp. 3d at 47. “Formalistic factors,” such as

“employee benefits or tax treatment,” should not be “rigidly”

relied upon. Id.

Defendants argue that Plaintiff’s contract is with

third-party provider Procom. (Defs.’ Br. at 10.) Yet, “an

independent contractor agreement is not determinative of

employment status.” Ward, 2023 WL 5353342, at *6. Defendants

further assert that limited discovery might show that Plaintiff

was an independent contractor because, among other reasons, he was

issued a 1099 tax form as opposed to a W-2. (Defs.’ Br. at 10.)

Putting aside that Defendants do not squarely argue how Plaintiff

has failed to plead sufficient facts supporting employee status at

this stage of the litigation (that is, instead of addressing the

facts already proffered by Plaintiff, Defendants forecast what

they anticipate discovery could reveal), “formalistic factors”

such as “tax treatment” are not to be “rigidly” relied upon.

Plaintiff asserts that Scotiabank controlled how, when, and

where he performed his job. Scotiabank provided Plaintiff with an

employee handbook and equipment, including a laptop and work email

address, which Plaintiff was required to use for work-related

projects. (AC ¶¶ 40-41, 43-45.) Scotiabank assigned Plaintiff

projects, set his deadlines, and delivered feedback on his work

product. (Id. ¶¶ 41-42.) Plaintiff attended weekly meetings, at

which he updated a Scotiabank supervisor, Defendant Herman, on the

status of his projects. (See id. ¶ 42.) These facts alone, taken

as true for purposes of the instant motion, demonstrate that

Scotiabank exercised control over Plaintiff.

Additionally, as to the remaining Reid factors, Scotiabank

determined Plaintiff’s work hours, holidays, and requests for time

off. (Id. ¶ 36.) Scotiabank required Plaintiff to perform his

work in person in the New York City office (before the COVID-19

pandemic), and Scotiabank compensated Plaintiff an hourly rate

instead of on a per-project or on-assignment basis. (Id. ¶¶ 22,

36, 46.) Lastly, Scotiabank assigned Plaintiff “long-term

assignments of a continuous nature,” including maintaining

strategic partnerships and regulatory compliance. (Id. ¶ 44).

All of these facts, taken together, plausibly allege that Plaintiff

was an “employee” under the Reid test. Eventually, a fuller record

and added context could produce a different conclusion, but, at

this early stage, Plaintiff has plausibly established an

employer-employee relationship sufficient to invoke ADEA

protection.

B. ADEA Claims

Interestingly, Defendants do not move to dismiss Plaintiff’s

ADEA claims in their opening brief. Only in Defendants’

Supplemental Reply do they raise, in passing, Plaintiff’s failure

to plead a cognizable claim for failure to hire under the ADEA.

(See Defs.’ Suppl. Reply at 3-4.) Even so, Plaintiff has asserted

two claims under the ADEA: (1) a claim for age discrimination and

(2) a claim for retaliation. (See AC ¶¶ 71, 75.)

Although the Court acknowledges that, by moving for expedited

discovery, Defendants insinuate that Plaintiff has failed to plead

sufficient facts to make out plausible claims under the ADEA, the

Court is unwilling to venture beyond the arguments briefed in

Defendants’ submissions. As Defendants do not move to dismiss the

ADEA retaliation claim, it survives.

Still, the Court observes some friction between Plaintiff’s

two ADEA claims. On the one hand, Plaintiff argues that because

he is asserting a theory of “failure to hire,” he is an

“individual” covered by Section 623(a)(1) of the ADEA.4 On the

other hand, Plaintiff argues that he is an “employee” for purposes

of asserting the ADEA retaliation claim. If Plaintiff is, as he

argues, an “employee,” then he is pleading a theory of failure to

promote instead of failure to hire. Accordingly, the Court

construes the discrimination claim as stemming from Scotiabank’s

alleged failure to promote Plaintiff and analyzes it as follows.

The ADEA provides that, for individuals over the age of 40,

employers may not “discriminate against an[] individual . . .

because of such individual's age.” 29 U.S.C. § 623(a)(1). Claims

of age discrimination are analyzed using the McDonnell Douglas

burden-shifting evidentiary framework. Matias v. Montefiore Med.

Ctr., No. 20-CV-2849 (VEC), 2022 WL 4448585, at *4 (S.D.N.Y.

Sept. 23, 2022).

4 The ADEA provides, in relevant, part that “(a) It shall be

unlawful for an employer – (1) to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age

. . . . ”). 29 U.S.C. § 623(a)(1) (emphasis added).

To establish a prima facie case of age discrimination, a

plaintiff must show that he (1) is a member of a protected class,

(2) is qualified for the position, (3) suffered an adverse

employment action, and (4) such action occurred under

circumstances “giving rise to an inference of discrimination.”

See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119,

129 (2d Cir. 2012) (quotation omitted); see also Green v. Town of

East Haven, 952 F.3d 394, 403 (2d Cir. 2020).

To survive a motion to dismiss, a plaintiff need not plead

every element of a prima facie case; rather, a plaintiff need only

plead facts plausibly alleging that (1) the employer took an

adverse action and (2) age was the “but for” cause of that adverse

action. Boonmalert v. City of N.Y., 721 F. App’x 29, 32 (2d Cir.

2018) (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d

72, 86-87 (2d Cir. 2015)); Santana v. Mount Vernon City Sch.

Dist./Bd. of Educ., No. 20-CV-3212 (NSR), 2021 WL 4523770, at *10

(S.D.N.Y. Sept. 30, 2021). That is, the adverse employment action

must have resulted “because of age” and not have been merely a

“motivating factor.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6

F.4th 293, 303 (2d Cir. 2021) (quoting Gross v. FBL Fin. Servs.,

557 U.S. 167, 174 (2009)).

Defendants argue, in their Supplemental Reply, that Plaintiff

cannot plausibly allege causation. (Defs.’ Suppl. Reply at 4.)

This Court disagrees. Courts in this district infer age-based

employment discrimination from, for example, an employer’s

criticism of a plaintiff’s performance in age-related degrading

terms, invidious comments about others in the protected age class,

preferential treatment of younger employees, a sequence of events

leading to a plaintiff’s termination, or the timing of a

plaintiff’s termination. Nnebe v. City of N.Y., No. 22 Civ. 3860

(VEC)(SLC), 2023 WL 9100339, at *13 (S.D.N.Y. Nov. 9, 2023); Ward,

2023 WL 5353342, at *11.

Here, Plaintiff was a 61-year-old man at the time of the

alleged discrimination. (AC ¶ 53.) The superiors who engaged in

alleged conduct were all in their 30s and 40s, and the woman

promoted to the Director-level position was also in her 40s. (Id.

¶¶ 52, 60.) Although replacement by a younger woman in her 40s is

insufficient to create an inference of discriminatory intent, see

Adams v. N.Y. State of Educ. Dep’t, 752 F. Supp. 2d 420, 465-66

(S.D.N.Y. 2010), the timing of the events is notable here.

Plaintiff had worked for Scotiabank and with the individual

Defendants for months before Defendants Lazidis and Trombly were

alerted to his age. (AC ¶¶ 18, 52-53.) During that time, Plaintiff

had received only positive reviews, and he was offered (and

accepted) a promotion to a Director-level position. (Id.

¶¶ 48-50). Just one week after Defendants Lazidis and Trombly saw

Plaintiff’s appearance for the first time, Defendant Lazidis

shared, also for the first time, that she had suddenly become

unhappy with Plaintiff’s performance. (Id. ¶ 57.) When Plaintiff

contacted Defendant Herman less than two weeks later to ask when

his promotion would take effect, Defendant Herman responded that

Scotiabank was still reviewing the terms of his compensation. (Id.

¶ 59.) Approximately three weeks after that conversation,

Plaintiff learned that an employee in her 40s had received the

Director role. (Id. ¶ 60.)

Plaintiff’s claim is bolstered by allegations of Scotiabank’s

systemic preference for younger employees. Around that same time,

Scotiabank allegedly “forced out” three executives, whom Plaintiff

asserts were over the age of 60. (Id. ¶ 68.) Plaintiff has thus

pleaded sufficient facts to make out a claim for age

discrimination. Accordingly, both ADEA claims survive.

C. Subject-Matter Jurisdiction over State and City Claims

Defendants also argue that Plaintiff’s claims under the

NYSHRL and the NYCHRL should be dismissed pursuant to Rule 12(b)(1)

for lack of subject-matter jurisdiction. (Defs.’ Br. at 5-6.)

Specifically, Defendants argue that Plaintiff is not statutorily

protected by the NYSHRL or the NYCHRL because Plaintiff was living

and working in Connecticut during the alleged discrimination, and

he therefore did not experience the requisite “impact” in New York.

(See id. at 5).5 This Court disagrees.

The NYSHRL and NYCHRL were designed to protect inhabitants

and persons “within” the State or City, respectively, from

“unlawful discriminatory practices.” Hoffman v. Parade Publ’ns,

15 N.Y.3d 285, 291-92 (2010) (internal quotation marks omitted).

Although neither statute directly defines what it means to be

“within” the State or City, the New York Court of Appeals addressed

this question in the case of Hoffman v. Parade Publications. See

generally id. There, an employee based out of his employer’s

Atlanta office claimed that he had been discriminatorily

terminated in violation of the NYSHRL and the NYCHRL because the

termination decision came out of the New York City headquarters.

Id. at 288. The New York Court of Appeals, in affirming dismissal,

held that a non-resident plaintiff “must plead and prove that the

alleged discriminatory conduct had an impact in New York” and that

such a “tangential connection” to the City and State was

insufficient to invoke either statute’s protections. Id. at

291-92.

In Hoffman’s wake, courts have held that a non-resident’s

random meetings or travel into the City or State are “tangential”

5 As Plaintiff resides in Connecticut, the parties agree that the

only basis for Plaintiff to plead claims under the NYSHRL and the

NYCHRL is for him to plead that, as a non-resident, he experienced

the impact in New York.

and do not satisfy the impact test. See, e.g., Vangas v.

Montefiore Med. Ctr., 823 F.3d 174, 182-83 (2d Cir. 2016)

(dismissing a NYCHRL claim where the patients with whom the

plaintiff communicated were based in New York City, but the

plaintiff worked in, was supervised, and was terminated in

Yonkers); Fried v. LVI Servs., Inc., 500 F. App’x 39, 42 (2d Cir.

2012) (affirming dismissal of a NYCHRL claim where the plaintiff

lived and worked in Connecticut but attended meetings and

communicated frequently with colleagues in New York City); Pakniat

v. Moor, 192 A.D.3d 596, 596-97 (2021) (dismissing the NYSHRL and

NYCHRL claims where the plaintiff lived and worked in Montreal

throughout her entire employment).

Defendants argue that Hoffman and its progeny geographically

bar Plaintiff’s NYSHRL and NYCHRL claims because Plaintiff was

physically in Connecticut during the alleged retaliation. (Defs.’

Br. at 5-6; Defs.’ Reply at 2-5; Defs.’ Suppl. Reply at 5-6.)

Defendants further contend that the COVID-19 overlay does not alter

the analysis in any way. (See Defs.’ Reply at 2-5.) In attempting

to paint this case as asked and answered by Hoffman, Defendants

point to Shiber v. Centerview Partners LLC, No. 21-cv-3649 (ER),

2022 WL 1173433 (S.D.N.Y. Apr. 20, 2022) — a post-COVID-19 case

that Defendants say addresses the “exact question” at issue here.

(See Defs.’ Reply at 4-5.) But the plaintiff in Shiber never

worked out of a New York City office and, at most, had hopes to

work in New York City down the line. Shiber, 2022 WL 1173433, at

*3-4.

Defendants’ position, boiled down, is that not only is

location an important factor, but it is the sole factor. At least

one court in this district has acknowledged that, although the

impact test was intended to serve as a bright-line rule, some

factual scenarios fall into a “grey area.” Wexelberg v. Project

Brokers LLC, No. 13 CIV. 7904 (LAK)(MHD), 2014 WL 2624761, at *10

(S.D.N.Y. Apr. 28, 2014). In Wexelberg, the court found that

because the plaintiff had worked full-time in the New York office

for 6 weeks of his 11-week employment, had worked remotely at the

direction of his employer for the balance of his employment, and

had been treated throughout his employment as an employee of the

New York office, the plaintiff had pleaded sufficient facts at the

motion to dismiss stage to satisfy the impact test. Id., at

*10-11.

In rendering its holding, the Wexelberg court observed that

“looking only to where the plaintiff was located just before he

was terminated . . . could create a major loophole in the statutory

protection that the [New York] Court of Appeals envisaged for

employees residing out-of-state but working in New York.” Id., at

*11. Moreover, “[b]y the simple stratagem of directing a targeted

employee to do his work at home rather than at the New York office

where he normally works, and then terminating him a few days or

weeks later, the employer would immunize itself from liability

under both State and City statutes.” Id.

The precise scenario hypothesized in Wexelberg is presented

here. Plaintiff reported in person to the New York office for

nearly ten months before the COVID-19 pandemic forced Scotiabank

to close its doors and required its employees to work remotely.

(AC ¶¶ 25-26.) For the entirety of the time that Plaintiff worked

remotely, he did so on a temporary basis and in response to

government- and company-imposed mandates. (Id. ¶¶ 25-27.)

Throughout that time, he was still based out of the New York City

office, and he carried out the same job functions and

responsibilities as he had in New York City. That is, Plaintiff

did not transition into a new or remote role, and he did not become

an employee of a Connecticut-based office.

Moreover, during Plaintiff’s tenure at Scotiabank,

Plaintiff’s contract was renewed three times, (id. ¶ 48), and his

fourth contract would have expired on December 17, 2021, had

Scotiabank not accelerated the end date to Friday,

October 29, 2021, (id. ¶ 67). Most concerning here, and foremost

in the Court’s analysis, is the fact that Plaintiff would have

returned to work in person in the New York City office the business

day following his accelerated termination – Monday,

November 1, 2021. Had Defendants terminated Plaintiff’s contract

just one business day later, or had they permitted his contract to

lapse as scheduled on December 17, 2021, without further renewal,

Plaintiff would have physically worked in New York City for

purposes of the impact test, and Defendants would not have this

jurisdictional defense at their disposal.

The suspiciousness of Plaintiff’s termination date is

underscored further by the fact that Scotiabank announced its

return-to-office plans in or around June 2021, and Plaintiff was

subsequently informed, on August 26, 2021, that his contract would

end early. (Id. ¶¶ 31, 67.) This scenario presents exactly the

type of “loophole” foreseen in Wexelberg.

Furthermore, during the height of the COVID-19 pandemic,

non-essential workers were required to shelter in place, and many

people, including Plaintiff, temporarily worked from their

residences. Defendants’ narrow reading of Hoffman would collapse

the two avenues available to workers to invoke the State and City’s

statutory protections (that is, through residency or through

“impact”) into a single residency requirement. Such a result is

inconsistent with the New York Court of Appeals’ guidance in

Hoffman. See 15 N.Y.3d at 291 (approving the “residency” and the

“impact” requirements).

Here, but for the COVID-19 pandemic, Plaintiff would have

continued to report in person to the New York City office – just

as he had done in the nearly ten months before Scotiabank mandated

remote working – and he would have continued to carry out the

functions of his job in person in New York City. Plaintiff’s case

thus falls within the “grey area” of the impact test, and Plaintiff

appropriately invokes the protections of the NYSHRL and the NYCHRL,

at this stage, for his retaliation claims.

Additionally, Plaintiff argues that failure-to-promote claims

should be evaluated under the more lenient standard set forth in

Anderson v. HotelsAB, LLC, 15 Civ. 712 (LTS) (JLC), 2015 U.S. Dist.

LEXIS 111820 (S.D.N.Y. Aug. 24, 2015). (See Pl.’s Opp’n Br.

at 17-18.) In years past, courts disagreed on what standard to

apply to failure-to-hire and failure-to-promote claims brought

under the NYSHRL and the NYCHRL. See Syeed v. Bloomberg L.P.,

58 F.4th 64, 67 (2d Cir. 2023) (describing the law on this issue

as unsettled). The Court of Appeals certified to the New York

Court of Appeals the question of whether a non-resident plaintiff

who is not yet employed in New York City or State can satisfy the

NYSHRL or NYCHRL’s impact test where that plaintiff ultimately

proves that an employer discriminatorily deprived him or her of a

job opportunity in New York City or State. See id. at 67, certified

question accepted, 39 N.Y.3d 1061 (2023).

Two weeks ago, the New York Court of Appeals answered that

question in the affirmative. Syeed v. Bloomberg L.P., No. 20,

2024 WL 1097279, at *1 (N.Y. Mar. 14, 2024) (Singas, J.) (“[W]e

hold that the New York City and New York State Human Rights Laws

each protect nonresidents who are not yet employed in the [C]ity

or [S]tate but who proactively sought an actual city- or state-

based job opportunity.”). In so ruling, the New York Court of

Appeals explained that a failure-to-promote case is different from

a termination case like Hoffman. Id., at *3. Importantly, the

New York Court of Appeals’ holding was “buttressed by important

policy considerations,” including the possible immunization of

employers that engage in discriminatory conduct pertaining to New

York City- and State-based jobs. Id., at *4. The New York Court

of Appeals concluded that the NYSHRL and the NYCHRL were not

intended “to give New York employers a license to discriminate

against nonresident prospective employees.” See id.

In light of the foregoing, Plaintiff has also satisfied the

more lenient standard afforded to failure-to-promote claims. As

the Court has subject-matter jurisdiction over the State and City

law claims, it now analyzes each in turn.

D. NYSHRL and NYCHRL Discrimination Claims

Defendants dedicate much of their briefing to disputing

whether this Court has subject-matter jurisdiction over the State

and City claims and very little to addressing the underlying

claims. The Court now considers whether Plaintiff has carried his

burden at the pleading stage.

Plaintiff asserts claims for age discrimination under the

NYSHRL and NYCHRL against all Defendants. Claims under both

statutes apply the same prima facie elements as the ADEA.

See Boonmalert, 721 F. App’x at 32. Like the ADEA, the NYSHRL

provides that “[i]t shall be an unlawful discriminatory practice

. . . [f]or an employer . . . , because of an individual's age, .

. . to discriminate against such individual in compensation or in

terms, conditions or privileges of employment.” N.Y. Exec. Law

§ 296(1)(a). Moreover, the NYSHRL extends to independent

contractors, providing that it shall be unlawful for an employer

to permit discrimination “against non-employees in its workplace”

and expressly creating a theory of liability for “a non-employee

who is a contractor . . . . ” Id. § 296-D.

The NYCHRL is even broader, making it unlawful for “an

employer or an employee . . . , because of the actual or perceived

age . . . of any person . . . [t]o discriminate against such person

in compensation or in terms, conditions[,] or privileges of

employment.” N.Y.C. Admin. Code § 8-107(1)(a)(3). Pursuant

thereto, plaintiffs are not required to allege that they have

suffered an adverse employment action or but-for causation.

Doolittle v. Bloomberg L.P., No. 22-CV-09136 (JLR), 2023 WL

7151718, at *7 (S.D.N.Y. Oct. 31, 2023). Instead, plaintiffs must

only show that they were “treated less well at least in part

because of” their age. Id. (quotation omitted). Thus, to survive

a motion to dismiss, a plaintiff must plausibly allege that he

experienced differential treatment that is “more than trivial,

insubstantial, or petty” and which was a motivating factor, not

the motivating factor. Id. (citations omitted).

Because the standard under the NYCHRL is uniquely lenient,

courts analyze discrimination claims under the NYCHRL “separately

and independently” from claims under the ADEA. Ward, 2023 WL

5353342, at *9. Similarly, the 2019 amendments to the NYSHRL

relaxed a plaintiff’s burden, instructing courts to construe

provisions liberally to accomplish the remedial purposes of the

NYSHRL. See N.Y. Exec. Law § 300. Though the post-amendment

standard under the NYSHRL comes closer to the standard of the

NYCHRL, it remains unclear whether the two standards were intended

to be co-extensive or whether a plaintiff’s burden under the NYSHRL

resides somewhere between his burdens under the ADEA and the

NYCHRL. See also Nezaj v. PS450 Bar & Rest., No. 22 CIV. 8494

(PAE), 2024 WL 815996, at *11 n.3 (S.D.N.Y. Feb. 27, 2024)

(questioning the same).

i. Discrimination Claims Against Defendant Scotiabank

In any event, Plaintiff has pleaded sufficient facts to allege

a claim against Scotiabank for age discrimination under the ADEA,

and the Court finds that Plaintiff satisfies the more lenient

standards of the NYSHRL and NYCHRL with respect to his claims

against Scotiabank.

Defendants argue that Plaintiff’s State and City law claims

must fail because he did not apply for the Director position.

(Defs.’ Suppl. Reply at 3-4.) However, even under the

pre-amendment NYSHRL standard, Plaintiff need not have shown that

he applied for the position if the vacancy was not posted, and he

applied through informal means endorsed by Scotiabank. See Tulino

v. City of N.Y., No. 15-CV-7106 (JMF), 2016 WL 2967847, at *5

(S.D.N.Y. May 19, 2016) (quoting Petrosino v. Bell Atl., 385 F.3d

210, 226-27 (2d Cir. 2004)). Plaintiff pleads that he was

approached about the position, that he accepted the position, and

that, after he accepted, he had a conversation with Defendant

Herman regarding when his promotion would take effect. (AC ¶¶ 49,

59-60.) Plaintiff was therefore not required to plead that he

applied for the role. Accordingly, Plaintiff has asserted

plausible claims against Defendant Scotiabank for discrimination

under the NYSHRL and the NYCHRL.

ii. Discrimination Claims Against Individual Defendants

By contrast, Plaintiff’s NYSHRL and NYCHRL claims for age

discrimination against the Defendants Herman, Lazidis, and Trombly

must fail. Although both statutes allow for individual liability,

the NYSHRL limits liability to where an individual defendant is

considered an “employer” of the plaintiff. Doe v. Bloomberg, L.P.,

167 N.E.3d 454, 460 (N.Y. 2021); see also Johnson v. Stop & Shop

Supermarket Co., No. 22-CV-9691 (KMK), 2024 WL 1217074, at *8 n.8

(S.D.N.Y. Mar. 21, 2024) (quoting Santana, 2021 WL 4523770,

at *15). A corporate employee can never qualify as an “employer”

under the NYSHRL. See Doe, 167 N.E.3d at 459-60. Therefore,

Plaintiff cannot make out a NYSHRL claim for discrimination against

Defendants Herman, Lazidis, and Trombly.

Plaintiff’s NYCHRL claim is equally futile as applied to these

Defendants. First, it is unclear whether Plaintiff intended this

Count to apply to Defendants Herman, Lazidis, and Trombly. Count

Six brings a cause of action “against all Defendants” but then

only alleges discriminatory conduct by Scotiabank. (See AC ¶¶ 92,

94.) Assuming the decision was intentional, under the NYCHRL,

employees may incur liability for their own unlawful

discriminatory conduct. Doe, 167 N.E.3d at 460; Nezaj, 2024 WL

815996, at *7. Employees are not vicariously liable for the acts

of their employers, however. Doe, 167 N.E.3d at 461. As Plaintiff

alleges only that the discriminatory conduct was the “Bank’s

unlawful failure to [promote] him into the Director position,” the

NYCHRL claim must be dismissed as applied to Defendants Herman,

Lazidis, and Trombly.

Accordingly, Plaintiff’s Counts Three and Six survive only as

to Defendant Scotiabank. Counts Three and Six are dismissed as to

Defendants Herman, Lazidis, and Trombly.

E. NYSHRL and NYCHRL Retaliation Claims

Plaintiff next asserts claims against all Defendants for

retaliation in violation of the NYSHRL and the NYCHRL. The NYSHRL

proscribes an employer from retaliating “against any person

because he or she has opposed any practices forbidden under this

article or because he or she has filed a complaint, testified[,]

or assisted in any proceeding under this article.” N.Y. Exec. Law

§ 296(1)(e). Similarly, the NYCHRL prohibits employers from

“retaliate[ing] or discriminat[ing] in any manner against any

person because such person has . . . opposed any practice forbidden

under this chapter.” Mihalik v. Credit Agricole Cheuvreux N. Am.,

Inc., 715 F.3d 102, 112 (2d Cir. 2013) (quoting N.Y.C. Admin. Code

§ 8-107(7)).

The 2019 amendments to the NYSHRL, as with the discrimination

claims, relaxed a plaintiff’s burden for pleading retaliation

claims. Previously, plaintiffs were subjected to the same standard

as those pleading retaliation claims under Title VII. McHenry v.

Fox News Network, LLC, 510 F. Supp. 3d 51, 66, 68-69 (S.D.N.Y.

Dec. 18, 2020). That is, a plaintiff was required to show that

(1) he was engaged in protected activity, (2) the defendant was

aware of the activity; (3) the defendant subjected him to a

materially adverse employment action; and (4) there was a causal

connection between the protected activity and the adverse

employment action. Id. at 66. The post-amendment NYSHRL removes

a plaintiff’s burden to allege that he suffered an adverse

employment action. See Ward, 2023 WL 5353342, at *13.

Under the first prong of the retaliation standard,

complaining to supervisors, instituting litigation, and filing a

formal complaint all constitute protected activities. See Nnebe,

2023 WL 9100339, at *16. A plaintiff is not required to allege

that the behavior he opposed has in fact violated the NYSHRL. See

id. Rather, he must have possessed a good faith, reasonable belief

that the employer has unlawfully discriminated. Id.

Second, a plaintiff must also plausibly allege facts that

permit a court to “reasonably infer” that the defendant knew of

the protected activity. Cardwell v. Davis Polk & Wardwell LLP,

No. 19-cv-10256 (GHW), 2020 WL 6274826, at * 31 (S.D.N.Y. Oct. 24,

2020). It is not enough for a plaintiff to complain generally

about unfair conduct or unsatisfactory treatment. See Benzinger

v. Lukoil Pan Ams., LLC, 447 F. Supp. 3d 99, 124 (S.D.N.Y. 2020).

Instead, the complaint must be “sufficiently pointed” to be

reasonably understood by the defendant as a complaint regarding

statutorily prohibited discrimination. See id.

Third, causation under the NYSHRL requires a plaintiff to

allege that the “retaliation was a but-for cause of the employer’s

adverse action.” Vega, 801 F.3d at 90-91 (internal quotation marks

omitted). A plaintiff can allege a causal connection

“(1) indirectly, by showing that the protected activity was

followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow

employees who engaged in similar conduct; or (2) directly, through

evidence of retaliatory animus directed against the plaintiff by

the defendant.” Littlejohn v. City of N.Y., 795 F.3d 297, 319 (2d

Cir. 2015) (internal quotation marks and citations omitted).

Although the Court of Appeals has not defined a point after which

the nexus between protected activity and alleged retaliation

becomes too attenuated, courts in this district have held the

timing to be around 4-5 months. See Torre v. Charter Commc’ns,

Inc., 493 F. Supp. 3d 276, 289 (S.D.N.Y. 2020) (collecting cases).

By contrast, the NYCHRL applies a more lenient standard still.

Plaintiffs are not required to plead but-for causation. Cardwell,

2020 WL 6274826, at *37. Instead, a plaintiff need only show that

“retaliatory animus played some role in the employer’s decision.”

Id.

i. Retaliation Claims Against Defendant Scotiabank

Applying the retaliation pleading standards here, the Court

finds that Plaintiff has plausibly alleged claims against

Scotiabank under the NYSHRL and NYCHRL.

Plaintiff clearly engaged in protected activity when he

informed Scotiabank’s Vice President and Head of Regulatory and

Business Initiatives of his belief that Defendants Herman,

Lazidis, and Trombly had failed to promote him to the

Director-level role due to his age. (AC ¶ 62.) Plaintiff again

engaged in protected activity two months later when he filed a

charge of discrimination with the EEOC. (See id. ¶ 66.)

Taking Plaintiff’s claims as true, both the internal

complaint to a supervisor and his complaint to the EEOC were

“sufficiently pointed” as to put Scotiabank on notice that

Plaintiff was alleging claims of statutorily unlawful

discrimination. The Court can further infer that Scotiabank had

knowledge of the first instance of protected activity because

Plaintiff complained to a Scotiabank employee and was then

contacted, shortly thereafter, by a member of the Human Resources

(“HR”) department to discuss the conditions of his leave. See

Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007).

Although Plaintiff is not required to allege that he

experienced an adverse employment action under these statutes,

Plaintiff alleges two incidences. The first occurred after

Plaintiff had reported the alleged discrimination internally and

had received permission to take paid medical leave. As mentioned

supra, Plaintiff alleges that a member of Scotiabank’s HR

department subsequently contacted him to deny him paid medical

leave, informing Plaintiff that he was in fact ineligible for those

benefits. (AC ¶¶ 63-64.) The second occurred approximately six

weeks after Plaintiff had filed his charge of discrimination with

the EEOC. (Id. ¶ 67.) Plaintiff was notified, presumably by

Scotiabank’s employee, that Scotiabank had decided to accelerate

the end date of Plaintiff’s contract to October 29, 2021. (Id.).

While the denial of benefits is questionable considering

Scotiabank’s contention that Plaintiff was an independent

contractor, his termination is clearly an action that could have

reasonably dissuaded a plaintiff from complaining of unlawful

discrimination.

Plaintiff has also pleaded sufficient facts that would

indirectly establish a causal connection, under the NYSHRL,

between his protected activity and each adverse employment action.

Although Plaintiff does not provide the exact date that he was

contacted by HR, the Court infers from the timeline of his Amended

Complaint that it was no later than two months after he received

permission to take leave. (See id. ¶¶ 62-64.) Regarding his

termination, Plaintiff received notice thereof approximately six

weeks after he filed a charge with the EEOC and only three months

after he made an internal complaint. (See id. ¶¶ 62, 66-67.) In

total, three months elapsed between when Plaintiff first made

Scotiabank aware of the alleged unlawful discrimination and when

Plaintiff experienced the second and final of the alleged

retaliatory events. Such a short span of time falls within the

range that courts in this district have found sufficient to

establish causation. See Torre, 493 F. Supp. 3d at 289.

Because Plaintiff has satisfied his burden under the NYSHRL,

he has therefore satisfied his burden under the NYCHRL. The

alleged sequence of events alone is sufficient for the Court to

infer retaliatory animus under the NYCHRL. See Cardwell, 2020 WL

6274826, at *38. Accordingly, Plaintiff has established claims

for retaliation against Scotiabank under the NYSHRL and the NYCHRL.

ii. Retaliation Claims Against Individual Defendants

Conversely, Plaintiff has failed to allege retaliation claims

against Defendants Herman, Lazidis, and Trombly for several

reasons. First, the same statutory barrier to individual liability

under the NYSHRL exists here as exists under the discrimination

claim. Second, like with the discrimination claim, it is not clear

whether Plaintiff intended to plead a NYCHRL claim against the

individual Defendants. Count Seven brings a cause of action

“against all Defendants,” but it only alleges retaliatory conduct

by Scotiabank. (See AC ¶¶ 96, 98.) Third, Plaintiff does not

plead facts to show that the individual Defendants were “on notice”

of either instance of protected activity or that they engaged in

retaliatory conduct. The alleged retaliatory acts occurred after

those which are said to have involved Defendants Herman, Lazidis,

and Trombly. That is, the chain of events commences with

Plaintiff’s lodging an internal complaint on May 17, 2021. (AC

¶ 62.) Plaintiff last claims to have interacted with the

individual Defendants four days prior, on May 13, 2021. (Id.

¶ 60.)

Consequently, Counts Four and Seven are dismissed as applied

to Defendants Herman, Lazidis, and Trombly.

F. NYSHRL and NYCHRL Claims of Aiding and Abetting

Last, Plaintiff alleges State and City claims against

Defendants Herman, Lazidis, and Trombly for aiding and abetting

the alleged discrimination and retaliation. (Id. ¶ 101). These

claims are Counts Five and Eight of the Amended Complaint. As a

preliminary matter, Count Eight is styled as both a NYSHRL and

NYCHRL claim. (Id. ¶ 100-03). Based on Plaintiff’s pattern of

pleading, the Court construes Count Eight as a claim for aiding

and abetting under the NYCHRL.

Both the NYSHRL and the NYCHRL permit for individual liability

on a theory of aiding and abetting, so long as a plaintiff first

establishes primary violations of these statutes. Xiang v. Eagle

Enters., LLC, No. 19 CIV. 1752 (PAE), 2020 WL 248941, at *5

(S.D.N.Y. Jan. 16, 2020) (citation omitted); see also Baptiste v.

City Univ. of N.Y., No. 22 Civ. 2785 (JMF), 2023 WL 4266914, at *6

(S.D.N.Y. June 29, 2023) (“[Individual defendants] can be held

liable under the state statute only on an aider-and-abettor

theory.”); Doe, 167 N.E.3d at 459 (“[Supervisors and

administrators] may incur liability [under the NYCHRL] . . . for

aiding and abetting such conduct by others . . . . ”). The same

standard applies to claims under both statutes as their language

is “virtually identical.” Cardwell, 2020 WL 6274826, at *41

(quoting United States v. N.Y.C. Dep't of Educ., 407 F. Supp. 3d

365, 401 (S.D.N.Y. 2018)).

To survive a motion to dismiss, a plaintiff must plausibly

allege (1) that the individual “actually participated” in the

allegedly discriminatory conduct, and (2) that the individual

shares the “intent or purpose of the principal actor.” Griffin v.

Sirva Inc., 835 F.3d 283, 293 (2d Cir. 2016); McHenry, 510 F. Supp.

3d at 68 (citing Feingold v. New York, 366 F.3d 138, 158 (2d Cir.

2004)).

Here, Plaintiff asserts that Defendants have aided and

abetted both the alleged discrimination and retaliation.

Plaintiff has pleaded no facts, though, to allege that the

individual Defendants were involved in the alleged retaliation,

let alone that they “actually participated” and shared

Scotiabank’s retaliatory “intent and purpose.”

Similarly, there is a sequencing issue with the

discrimination claim. The discrimination alleged is Scotiabank’s

failure to promote Plaintiff to a Director role. All conduct by

the individual Defendants allegedly preceded the decision to

rescind Plaintiff’s offer of promotion. As such, the individual

Defendants cannot have participated in or shared an intent of an

action that had not yet occurred.

To the extent that Plaintiff is asserting that the individual

Defendants’ conduct was itself discriminatory, Defendants Herman,

Lazidis, and Trombly cannot have aided and abetted their own

primary conduct. Boyce v. Weber, No. 19-CV-3825 (JMF), 2020 WL

5209526, at *2 (S.D.N.Y. Sept. 1, 2020). Thus, there is no basis

to prosecute these claims on the facts pleaded, and Counts Five

and Eight are dismissed with prejudice.

IV. The Motion to Expedite Discovery

Finally, considering the Court’s conclusion, supra,

Defendants’ motion to expedite discovery is denied as moot.

Defendants’ motion is further denied as unreasonable. That is,

Defendants do not allege that denial of expedited discovery would

result in irreparable injury. Moreover, bifurcating discovery

would be inefficient and would serve only to delay proceedings.

It would also, as Plaintiff points out, permit Defendants to take

“two bites at the summary judgment apple.” (Pl.’s Opp’n Br. at 20)

(internal quotation marks omitted).

In light of the surrounding circumstances, Defendants’ motion

for expedited discovery is DENIED.

V. Conclusion

For the foregoing reasons, Defendants’ motion for expedited

discovery [dkt. no. 8] is DENIED. Defendants’ motion to dismiss

[dkt. no. 8] is GRANTED in part and DENIED in part as follows.

Defendants’ motion to dismiss is granted with respect to Counts

Three, Four, Six, and Seven to Defendants Herman, Lazidis, and

Trombly. Defendants’ motion to dismiss is granted as to Counts

Five and Eight with prejudice. Accordingly, Defendants Herman,

Lazidis, and Trombly are dismissed from this action, and the Clerk

of the Court shall remove them from the civil docket sheet.

Counsel, Plaintiff, and a decision-maker for Defendant

Scotiabank shall appear for a settlement conference on

April 10, 2024, at 11:00 a.m. in Courtroom 12A, 500 Pearl Street,

New York, New York 10007.

SO ORDERED.

Dated: March 29, 2024

New York, New York

LORETTA A. PRESKA

Senior United States District Judge

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