Cavanaugh v. Northwell Health, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DIANE CAVANAUGH,

Plaintiff, MEMORANDUM & ORDER

21-CV-1381 (EK)(ARL)

-against-

NORTHWELL HEALTH, INC.,

Defendant.

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ERIC KOMITEE, United States District Judge:

Defendant Northwell Health hired plaintiff Diane

Cavanaugh as a senior project manager in October 2017. Five

months later, Northwell terminated her employment. Cavanaugh,

who was sixty-three on the date of termination, alleges that

Northwell fired her because of her age. She asserts one cause

of action against Northwell: age discrimination in violation of

the New York State Human Rights Law. The Court has diversity

jurisdiction over this case.

Northwell has moved for summary judgment. It argues

that many of the facts on which Cavanaugh’s claim relies are

time-barred, and that the undisputed facts — including, indeed,

key facts admitted by Cavanaugh herself — show that she was

fired because she failed to perform adequately in the role, not

because of her age. For the reasons below, the motion is

granted.

Background

A. Factual Background

The following facts are drawn from the parties’ Local

Rule 56.1 statements and the exhibits appended to their summary

judgment papers. Unless otherwise noted, the facts discussed

below are undisputed.1 Where a fact is disputed, and Cavanaugh

has offered admissible evidence to support her position, the

Court relies on Cavanaugh’s view of events. Kirbaran v. Target

Corp., 720 F. Supp. 3d 267, 271 n.2 (S.D.N.Y. 2024).2 And the

Court of course “resolve[s] all ambiguities, and credit[s] all

factual inferences that could rationally be drawn, in favor” of

Cavanaugh. Spinelli v. City of New York, 579 F.3d 160, 166 (2d

Cir. 2009).

Northwell manages laboratories in the northeastern

United States. Pl.’s Rule 56.1 Counterstatement (“Pl. 56.1”)

¶ 1, ECF No. 36. The labs run clinical tests on bodily fluids

and tissue specimens, and Northwell provides results at patient

care centers. Id. ¶ 3. In the fall of 2017, Northwell planned

to transition a major lab facility to a new “automated

laboratory.” Id. ¶¶ 18, 41-42; Cavanaugh Dep. Tr. 210:18-211:2,

1 Where the Court cites only one party’s 56.1 statement, it is because

the opposing party “either [has] not disputed those facts or has not done so

with citations to admissible evidence.” Kirbaran v. Target Corp., 720 F.

Supp. 3d 267, 271 n.2 (S.D.N.Y. 2024) (citing Giannullo v. City of New York,

322 F.3d 139, 140 (2d Cir. 2003)).

2 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

ECF No. 35-2. This would entail expanding into a larger space

with additional instrumentation, as well as greater use of

“robotic technology.” Pl. 56.1 ¶ 18. Northwell referred to the

new automated lab as the “Center for Advanced Medicine,” or

“CFAM.” Id. The transition to CFAM was expected to create

additional work for Northwell’s Project Management Office

(“PMO”). Id. ¶¶ 14, 19. Cheryl Schleicher, the Director of the

PMO, decided to hire a new senior project manager to handle that

work. Id. ¶ 22.

1. Northwell Hires Cavanaugh

In the fall of 2017, Northwell posted a listing for

the senior project manager position. Id. ¶ 35. Schleicher

sought a candidate “with extensive experience who could provide

expertise, leadership, mentorship and general guidance to the

more junior and inexperienced members of the team.” Cheryl

Schleicher Decl. (“Schleicher Decl.”) ¶ 10, ECF No. 31.

In September 2017, Nancy Barker — a third-party

recruiter — asked Cavanaugh if she would like to apply for the

senior project manager role. Pl. 56.1 ¶ 36. Cavanaugh applied,

and Northwell sent Barker a job description for Cavanaugh to

review before the interview. Id. ¶ 39. According to the

description, the role required a bachelor’s degree in

information systems, medical technology, or a related field; a

minimum of seven years of related systems analysis experience; a

minimum of four years of project management experience; that the

applicant be knowledgeable about new systems and technology; and

that the applicant have “[i]n-depth knowledge of [the] Health

Care industry and related industries.” Job Description 3, ECF

No. 31-1. In bold, the description explained that part of the

role involved “2 major projects to manage: relocation of 2 lab

facilities to new locations, including physical move, security,

infrastructure, applications, equipment, etc.” Id. Cavanaugh

does not dispute that one of those “major projects” was to

manage the CFAM implementation. Pl. 56.1 ¶ 42.

Cavanaugh’s resume indicated years of work experience

at the intersection of IT and healthcare. Resume, ECF No. 31-2.

She had worked as a systems analyst, product design engineer, or

project manager at several firms that specialized in health care

IT. Id. at 3-4. Indeed, Cavanaugh described herself as having

“[i]n-depth knowledge of the healthcare industry and related

industries” due to almost thirty years of work in healthcare IT.

Cavanaugh Dep. Tr. 75:3-76:7, 170:16-24.

Cavanaugh submitted her resume to Northwell and met

with Schleicher for interviews in September and October of 2017.

Pl. 56.1 ¶ 50. During those interviews, Schleicher said the job

was related to “a big lab project” — namely, the CFAM

transition. Cavanaugh Dep. Tr. 147:12-21. Cavanaugh was

hesitant about taking the position because she had “no lab or

operations background,” although she believed that she was

experienced in supervising people with subject-matter expertise

that she lacked. Id. at 150:3-19. Schleicher explained that

laboratory operations experience was “not essential” to be hired

for the role. Pl. 56.1 ¶ 59. And Cavanaugh, in turn, assured

Schleicher that she “understood healthcare operations and could

quickly learn any new skills necessary to excel in the

position.” Id. ¶ 61.

The parties dispute whether the two women discussed

age during the interview. According to Cavanaugh, Schleicher

“made comments that she was close in age to [Cavanaugh].” Id.

¶ 73. Cavanaugh says Schleicher also told Cavanaugh she

purposefully provided more “assistance and guidance to the

‘kids,’ meaning the younger employees.” Id.

Northwell ultimately offered the job to Cavanaugh on

October 11, 2017. Id. ¶ 81; see also Offer Letter, ECF

No. 31-4.

2. Cavanaugh Works at Northwell for Five Months

Cavanaugh began work at Northwell on October 30. Pl.

56.1 ¶ 85. At that time, Schleicher advised Cavanaugh that she

was subject to a six-month probationary period, during which she

could be fired if she failed to perform. Id. ¶¶ 86-87. But as

Cavanaugh acknowledges, Schleicher also touted her abilities.

She told the PMO team she found Cavanaugh to be intelligent,

that Cavanaugh “had invaluable experience,” and that she would

be an “asset to the group.” Id. ¶¶ 91-92.

The parties agree that Cavanaugh’s job required her to

understand the instruments in the Northwell laboratory and to

oversee the “smooth transition of instrument data” to CFAM’s

computer network. Id. ¶ 107. But they disagree about how much

initial training and guidance Schleicher offered. For example,

Schleicher encouraged Cavanaugh to introduce herself to

employees in the laboratory and each “relevant department” to

learn how their needs intersected with the CFAM project and to

“develop relationships with members of the Laboratory team.”

Id. ¶¶ 119-20. When Cavanaugh attempted to do so, however, she

was — in her assessment — “often rebuffed and told by those

employees that they did not want to work with her because she

did not have lab experience.” Id. Overall, Cavanaugh claims,

Schleicher offered her little more than “general onboarding

training” and “limited training . . . on lab operations.” Id.

¶¶ 111-12. Cavanaugh attributes this inattention to

Schleicher’s belief that she did not have to “pay as much

attention to [Cavanaugh]” relative to the more junior members of

the team. Cavanaugh Dep. Tr. 249:18-24.

Around the same time she was onboarding Cavanaugh,

Schleicher recommended that Northwell hire a junior project

manager. Pl. 56.1 ¶ 94. The junior manager would handle

entry-level work, while Schleicher would assign more advanced

work to Cavanaugh. Id. ¶ 96. Northwell eventually hired

Alexandra Eberle for that position. Id. ¶¶ 97, 102. Eberle was

not qualified to function as a senior project manager, and

Schleicher asked Cavanaugh to train and mentor Eberle. Id.

¶¶ 104, 106.

Cavanaugh concedes that problems emerged shortly after

she started work. She does not dispute Schleicher’s sworn

statement that members of the laboratory team complained to

Schleicher about working with her, id. ¶ 129, though she asserts

that she was not “made aware” of those complaints in real time.

Id. ¶ 129.1. She also accepts that laboratory team members

reported that meetings with her were inefficient and

unproductive; that she failed to grasp basic concepts; that she

was difficult to work with; and that she asked the same

questions numerous times. Id. ¶¶ 129-31. Perhaps even more

notably, Cavanaugh does not dispute Schleicher’s — or a second

Northwell employee’s — sworn statements that she “never became

technically competent with Northwell’s programs.” Id. ¶ 144.

Instead, she attributes this failure to a lack of training and

guidance from Northwell. Id.

3. Cavanaugh’s Termination

In February 2018, Schleicher emailed the company’s

human resources director, expressing concerns about Cavanaugh’s

performance. Id. ¶ 183. Schleicher eventually concluded that

if Cavanaugh’s performance did not “drastically improve,” she

would have to fire her. Id. ¶ 185. As Cavanaugh herself

accepts, her performance did not improve. Id. ¶¶ 144, 193, 195.

So, Schleicher filed a negative performance review in March

2018. Id. ¶¶ 194-95; see also Performance Review, ECF No. 31-9.

The review stated that Cavanaugh was failing to meet

expectations with respect to almost every aspect of her job,

including all “manager-level competencies.” Performance

Review 2.

Around two days after Schleicher filed that

performance review, Northwell terminated Cavanaugh’s employment.

Pl. 56.1 ¶ 196. Cavanaugh accepts that her “inability to

succeed in her position had nothing to do with her age, or

anyone’s perception of her age.” Id. ¶ 206. She asserts only

that Northwell misled her about the position’s requirements, and

did not provide her proper guidance or training, focusing

instead on developing younger employees. Id. ¶¶ 184, 206.1.

Northwell never hired a replacement for Cavanaugh.

Id. ¶ 208.

B. Procedural Background

Cavanaugh initially filed her complaint in New York

state court. Complaint, ECF No. 1-1. Northwell removed on

diversity grounds, see Notice of Removal, ECF No. 1, and

subsequently filed the instant motion for summary judgment. In

April 2024, the Court directed the parties to show cause as to

its diversity jurisdiction under 28 U.S.C. § 1332. See Docket

Order dated Apr. 23, 2024. The parties responded to that

directive, see ECF Nos. 45-48, and the Court addresses the

jurisdictional question below.

Legal Standard

Summary judgment is appropriate where there is no

genuine dispute of material fact, such that the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant must demonstrate that there is no such dispute.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The

movant may do so by pointing out the absence of any evidence

supporting “an element essential to [the non-movant’s] case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

non-movant then has the burden of producing “specific facts

showing that there is a genuine issue for trial.” LaBounty v.

Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).

Discussion

Northwell seeks summary judgment on Cavanaugh’s

age-discrimination claim under the New York State Human Rights

Law (“NYSHRL”). It argues that the NYSHRL’s three-year statute

of limitations bars consideration of most of the facts

underpinning Cavanaugh’s claim, and that in any event, the

undisputed facts show that Northwell fired her because of her

job performance, not because of her age.

A. Subject-Matter Jurisdiction

Before addressing the merits, the Court first confirms

its subject-matter jurisdiction. Singh v. United States

Citizenship & Immigr. Servs., 878 F.3d 441, 445 (2d Cir. 2017).

The Court’s April show-cause order cited three

potential defects in Northwell’s removal. First, the pleadings

did not allege Northwell’s state of incorporation, which

precluded a determination of complete diversity. See Hertz

Corp. v. Friend, 559 U.S. 77, 85, 92-93 (2010) (for diversity

purposes, a corporation is a citizen of its state of

incorporation and the state where it has its principal place of

business). Second, the pleadings did not specify Cavanaugh’s

domicile, stating only that she was a “resident” of Rhode

Island. See John Birch Soc. v. Nat’l Broadcasting Co., 377 F.2d

194, 199 (2d Cir. 1967) (statement of residence “tells the court

only where the parties are living and not of which state they

are citizens”). Third, the removal notice did not clearly

allege an amount-in-controversy, even though Northwell (as the

party invoking federal jurisdiction) had the “burden of proving

that it appear[ed] to a reasonable probability that the claim

[was] in excess of the statutory jurisdictional amount.”

Tongkook Am., Inc. v. Shipton Sportwear Co., 14 F.3d 781, 784

(2d Cir. 1994).

After reviewing the parties’ responsive briefing, the

Court concludes that it does have jurisdiction over this action.

Northwell’s general counsel submitted a sworn statement that the

company is headquartered and incorporated in New York. Decl. of

Laurence Kraemer ¶¶ 2-4, ECF No. 46. That is enough to conclude

that Northwell is a New York citizen.3 See, e.g., Greene v.

Paramount Pictures Corp., No. 14-CV-1044, 2017 WL 4011240, at *3

(E.D.N.Y. Sept. 11, 2017) (relying on similar statements by

corporate officers to assess existence of diversity

jurisdiction). As for Cavanaugh’s citizenship, she has now

produced sufficient evidence, including an affidavit, indicating

that she is domiciled in Rhode Island. See Aff. of Diane

3 Diversity cases may not be removed to federal court where a party in

interest “properly joined and served as a defendant is a citizen of the state

in which the action was brought.” 14C Charles Wright & Alan Miller, Federal

Practice and Procedure – Jurisdiction § 3723 (rev. 4th ed.); see also 28

U.S.C. § 1441(b)(2). This rule might have barred removal in this case, given

that Northwell is a New York citizen that removed from New York state court.

However, in its removal notice, Northwell averred that it had not yet been

joined or served in the state court action. See Notice of Removal ¶ 3. This

turns out to matter, given the text of the home-state defendant rule: the

rule is “inapplicable until a home-state defendant has been served in

accordance with state law; until then, a state court lawsuit is removable

under Section 1441(a),” even by the home-state defendant itself, “so long as

a federal district court can assume jurisdiction over the action.” Gibbon v.

Bristol-Myers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019); see also La Russo

v. St. George’s Univ. Sch. of Med., 747 F.3d 90, 97 (2d Cir. 2014) (defendant

not properly named in complaint could still remove to federal court, even

though that defendant had not appeared or been served). Moreover, even if

Northwell had been properly served or joined under New York law at the time

of removal, Cavanaugh has not moved to remand based on the home-state removal

rule. Accordingly, any such argument is waived, because Section 1441(b)’s

bar on home-state removal is “a procedural rule and [is] not jurisdictional.”

Shapiro v. Logistec USA, Inc., 412 F.3d 307, 313 (2d Cir. 2005).

Cavanaugh ¶¶ 2-6, ECF No. 48-2. This is sufficient to establish

that she is a Rhode Island citizen, and that complete diversity

therefore exists. John Birch, 377 F.2d at 199 (failure to

properly allege domicile can be cured “if there is anything on

the record from which actual citizenship may be determined”).

Finally, there is considerable record evidence

suggesting that the amount-in-controversy exceeds $75,000. In

re Elsa Designs, Ltd., 155 B.R. 859, 864 n.2 (S.D.N.Y. 1993)

(court may look to whole record to determine if amount-in-

controversy requirement is satisfied). Among other things,

Cavanaugh stated in an interrogatory response that she seeks

more than $200,000 in back pay as damages. See Pl. Responses to

First Set of Interrogatories 3, ECF No. 45-6.

Having concluded that there is no jurisdictional

impediment to doing so, the Court now proceeds to the merits.

B. Timeliness

Northwell argues that most of the conduct to which

Cavanaugh objects fall outside the NYSHRL’s three-year statute

of limitations. Def. Mem. in Supp. of Summ. J. (“Def. Mem.”)

25, ECF No. 33; see also N.Y.C.P.L.R. § 214(2); Bermudez v. City

of New York, 783 F. Supp. 2d 560, 573 (S.D.N.Y. 2011). This

does not include her termination: Cavanaugh was fired on March

19, 2018, Pl. 56.1 ¶ 196, and initially filed this action in

state court on March 11, 2021. See generally Compl. So, the

termination falls within the limitations period.

Cavanaugh’s complaint does, however, arguably

challenge two other employment actions that fall outside the

limitations period. First, Cavanaugh seems to allege that

Northwell assigned her an excessive workload. Compl. ¶ 47; see

Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004)

(assignment of a “disproportionately heavy workload” can

constitute adverse employment action). But this assignment

allegedly occurred during her first week on the job — well

outside the limitations period. Compl. ¶ 47. Second, she

alleges that Northwell later assigned most of her tasks to

Eberle. Compl. ¶ 103; see also Feingold, 366 F.3d at 152 (an

adverse employment action can occur when employer assigns the

plaintiff “significantly diminished material responsibilities”).

Yet, the complaint suggests that this occurred before January

2018, meaning that a claim of discrimination predicated on this

action would also be untimely. Compl. ¶¶ 103, 113.

So, Cavanaugh can pursue a discrimination claim as to

only one adverse action: her termination. See Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002) (discrete

acts occurring outside the limitations period are not

independently actionable); Kassner v. 2nd Ave. Delicatessen

Inc., 496 F.3d 229, 238 (2d Cir. 2007) (same).

Nevertheless, conduct occurring outside the

limitations period may still be used as “background evidence” in

support of Cavanaugh’s challenge to her termination. Morgan,

536 U.S. at 113; see also Phillip v. City of New York,

No. 09-CV-442, 2012 WL 1356604, at *6 (E.D.N.Y. Apr. 19, 2012)

(time-barred discriminatory acts may be cited “for example, as

evidence of pretext”). Thus, we consider Cavanaugh’s

allegations concerning her (initially) heavy workload and

(subsequently) diminished duties in assessing her claim of

discriminatory termination.

In her briefing, Cavanaugh concedes that much of

Northwell’s conduct falls outside the limitations period. Pl.

Mem. in Opp. to Summ. J. (“Pl. Opp. Mem.”) 8-10, ECF No. 39.

But she argues that the untimely conduct is still actionable

under the continuing violation doctrine. That doctrine provides

that where a plaintiff has experienced a “continuous practice

and policy of discrimination, . . . the commencement of the

statute of limitations period may be delayed until the last

discriminatory act in furtherance of it.” Washington v. Cnty.

of Rockland, 373 F.3d 310, 317 (2d Cir. 2004). Basically, if a

claim “by [its] nature accrue[s] only after the plaintiff has

been subjected to some threshold amount of mistreatment,” then

the doctrine applies. DeSuze v. Ammon, 990 F.3d 264, 272 (2d

Cir. 2021). The continuing violation doctrine remains “heavily

disfavored” in the Second Circuit, and courts will not apply it

absent compelling circumstances. Trinidad v. New York City

Dep’t of Correction, 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y.

2006).

The continuing violation doctrine does not apply here.

“Where . . . plaintiffs complain of ‘discrete acts’ separated in

time, the usual limitations rule applies.” DeSuze, 990 F.3d at

272. Here, Cavanaugh alleges a series of “discrete acts” (e.g.,

her firing, or the reassignment of tasks to Eberle) that were

each independently actionable, rather than a steady accretion of

abuse that ultimately morphed into a legal claim.4 Thus, the

normal limitations rule governs, and the statute of limitations

bars consideration (other than as background evidence) of most

of the alleged conduct.

C. The Age-Discrimination Claim

Cavanaugh argues that she was undertrained, set up to

fail, and eventually fired because of her age. Pl. Opp. Mem. 7.

As noted above, only her termination falls within the NYSHRL

limitations period. So, the question before the Court is

4 In her brief, Cavanaugh asserts that she also brought a hostile work

environment claim. Such claims are often continuing violations by their very

nature. Morgan, 536 U.S. at 115. But Cavanaugh did not actually assert such

a claim in her complaint. Thus, she may not proceed on it now. See, e.g.,

Auguste v. Dep’t of Corrections, 424 F. Supp. 2d 363, 368 (D. Conn. 2006)

(plaintiff “cannot amend his complaint in his memorandum in response to

defendants’ motion for summary judgment”). This issue is discussed below.

See infra at Section III.D.

simple: Could a reasonable jury conclude that Cavanaugh was

fired because of her age? The answer is equally simple: no.

Employment discrimination claims under the NYSHRL are

subject to the familiar McDonnell Douglas burden-shifting

framework. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d

Cir. 2010). Under that framework, the “plaintiff bears the

initial burden of establishing a prima facie case of

discrimination.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d

Cir. 2008). To do so, the plaintiff must show that she (1) “is

a member of a protected class”; (2) “was qualified for the

position [s]he held”; (3) “suffered an adverse employment

action”; and (4) faced the adverse action “under circumstances

giving rise to the inference of discrimination.” Ruiz v. Cnty.

of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).

If the plaintiff establishes a prima facie case of

discrimination, “the burden shifts to the defendant to

articulate some legitimate, non-discriminatory reason for its

action.” Holcomb, 521 F.3d at 138. If the defendant does so,

the burden then shifts back to the plaintiff to show either

“that a discriminatory reason more likely motivated the employer

or . . . that the employer’s proffered explanation is unworthy

of credence” — i.e., that the defendant’s explanation is

pretextual. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 256 (1981).

The plaintiff must demonstrate that discrimination

based on a protected characteristic was the “but-for” cause of

the adverse employment action. Gross v. FBL Fin Servs., Inc.,

557 U.S. 167, 177 (2009) (holding that the but-for standard

applies to discrimination claims under the Age Discrimination in

Employment Act); Downey v. Adloox, Inc., 789 F. App'x 903, 905

(2d Cir. 2019) (NYSHRL claims also require plaintiff to show

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

employment action”).

1. Cavanaugh States A Prima Facie Case of Discrimination

Northwell argues that Cavanaugh has failed to show

that her termination “took place under circumstances giving rise

to the inference of discrimination.” Ruiz, 609 F.3d at 491. As

the Second Circuit has explained, however, “the evidence

necessary to satisfy this initial burden [i]s . . . de minimis.”

Zimmermann v. Asscs. First Cap. Corp., 251 F.3d 376, 381 (2d

Cir. 2001). Among other things, the mere fact that the

“plaintiff’s responsibilities were transferred to a younger

co-worker” can suffice to establish a prima facie case. Carlton

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

Cavanaugh raises a genuine dispute of fact as to

whether her responsibilities were transferred to a younger

coworker. Shortly after hiring Cavanaugh, Northwell hired

Alexandra Eberle as a junior project manager. Pl. 56.1 ¶ 102.

Eberle was “in her 30s.” Cavanaugh Dep. Tr. 184:3-4. And

though she offers little by way of specifics, Cavanaugh does

claim that Schleicher “started peeling off [her] jobs and giving

them to [Eberle].” Id. at 204:24-205:2. Thus, Cavanaugh has

cleared the low bar of stating a prima facie case.

2. Northwell Offers A Non-Discriminatory Explanation

Northwell argues that it fired Cavanaugh because she

“failed to perform her job functions as a [senior project

manager] during her probationary period,” not because of her

age. Def. Mem. 15. If supported, that is a valid

non-discriminatory purpose. And affidavits by fellow employees

about a plaintiff’s “unsatisfactory job performance

and . . . poor attitude” are enough to articulate “a legitimate,

nondiscriminatory reason for [a] plaintiff’s termination.”

Duffy v. State Farm. Mut. Auto. Ins. Co., 927 F. Supp. 587, 594

(E.D.N.Y. 1996) (Dearie, J.). Northwell has adduced such

evidence.

Both Schleicher and Amanda Campo (a member of the PMO

team) submitted affidavits speaking to Cavanaugh’s performance.

Campo avers that Cavanaugh “had difficulty executing basic

project management tasks or working independently.” Campo Decl.

¶¶ 16, 26, ECF No. 30. She further claims that Cavanaugh

“failed to participate in . . . team meetings,” “did not take

notes, ask questions, or actively engage with the team,” and

would instead “sit silently or text on her phone.” Id. ¶ 30.

Throughout, Campo says, “Cavanaugh maintained a negative

attitude, and constantly complained.” Id. ¶ 31. As already

noted, Cavanaugh does not dispute that her colleagues made

similar complaints contemporaneously to Schleicher (though she

claims she was not aware of them at the time). Pl. 56.1

¶¶ 129-31.1.

Schleicher’s declaration tells a similar story.

Cavanaugh “did not understand the intricacies of lab data and

its relevance to patient care.” Schleicher Decl. ¶ 60. And

despite attempts to assist her, “Cavanaugh did not take

initiative to improve her skills.” Id. ¶ 61. She “was not

technically competent with Northwell’s software applications,”

and “did not make any effort to learn the necessary skills or

try to improve in this area.” Id. ¶ 62. Throughout, she “was

consistently unprofessional. She arrived to work late, would

text / be on her cellphone during team meetings . . . and she

would sit at her desk texting / on her cellphone, instead of

working.” Id. ¶ 64. Schleicher avers that Cavanaugh’s

responsibilities were reassigned to Eberle not because Eberle

was younger, but because “Cavanaugh was not getting any of her

assigned work done.” Id. ¶ 66. For example, she claims that

even when Cavanaugh was assigned the “very simple” task of

“implementing a scanning solution for paper / AP lab reports,”

she failed to manage it properly. Id. ¶ 65.

A contemporaneous email Schleicher sent to her

supervisors at Northwell supports her account. February 9, 2018

Email, ECF No. 31-7. In that email, Schleicher explained that

Cavanaugh “seem[ed] to struggle with understanding the lab

instrument validation process” and asked “the same question

repeatedly.” Id. at 2. This aligns with Cavanaugh’s own

admission that she never became competent with Northwell’s

programs. Pl. 56.1 ¶ 144.

Given Schleicher’s and Campo’s affidavits, and

Schleicher’s contemporaneous email account (supplemented by

Cavanaugh’s own corroboration), a jury could reasonably conclude

that Northwell had a legitimate, non-discriminatory reason for

firing Cavanaugh.

3. Cavanaugh Fails to Show that Northwell’s Explanation

Was Pretextual

The burden thus shifts back to Cavanaugh to show that

Northwell’s proffered reason for her termination was a “pretext

for discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515 (1993). This requires showing that, notwithstanding

Northwell’s stated reasons for firing her, Cavanaugh’s “age was

the reason that [Northwell] decided to act,” that is, a “but-for

cause of [Northwell’s] adverse decision.” Lively v. WAFRA Inv.

Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021); see also

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.

2010) (contrasting but-for causation under the ADEA with

motivating-factor causation under Title VII); Downey, 789 F.

App'x at 905 (analyzing ADEA and NYSHRL age-discrimination

claims identically).

a. Northwell’s Alleged Failure to Train

Cavanaugh Cannot Establish Pretext

Cavanaugh mainly argues that, to the extent she fell

short of expectations, she did so only because Schleicher

misrepresented the role’s responsibilities and neglected to

provide her with the same “training or guidance” she provided to

“younger colleagues.” Pl. Opp. Mem. 15-16. In her deposition,

Cavanaugh maintained that Schleicher told her that “I don’t have

to pay as much attention to you, Diane, because you and I are in

different positions and these kids are gonna go on and do

something else.” Cavanaugh Dep. Tr. 249:19-24. She also

asserted that Campo once told her that Campo was “very surprised

that [Schleicher] hired an older woman because she had problems

with [a former employee], who was also an older woman.” Id. at

251:19-23.

This argument misses the point of the third McDonnell

Douglas step, because it does not refute Northwell’s

non-discriminatory explanation for Cavanaugh’s termination.

Northwell says it fired Cavanaugh because she was not

performing. Cavanaugh agrees she was not performing. Pl. 56.1

¶ 144. So, put simply, she does not dispute that Northwell had

a genuine, non-discriminatory basis for firing her. And it is

no defense for Cavanaugh to insist that she would have performed

better if Northwell had expended additional resources training

her. The ADEA (and by extension the NYSHRL) does not “require

an employer to accord special treatment” to older employees.

Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982); see

also Testa v. CareFusion, 305 F. Supp. 3d 423, 434 (E.D.N.Y.

2018) (Bianco, J.) (“[T]o the extent that plaintiff argues that

his performance could have improved with more training, an

employer is not obligated to provide such training.”).5

Moreover, even if Cavanaugh received less training or

attention than younger employees, she has adduced no evidence

that her training regimen was based specifically on her age, as

opposed to her level of industry experience. See Criley v.

Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (citing

Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12 (1993))

(“[E]mployment decisions driven by factors that are empirically

intertwined with age are not discriminatory so long as they are

[caused] by some feature other than the employee’s age.”).

5 NYSHRL age-discrimination claims are treated identically to ADEA

claims. Boonmalert v. City of New York, 721 F. App’x 29, 32 (2d Cir. 2018).

Indeed, she herself accepts that her failure at Northwell (which

she attributes to a lack of training and guidance from

Schleicher) had nothing to do with her age or Northwell’s

perception of her age. Pl. 56.1 ¶ 206.

And even if that were not enough, Cavanaugh also fails

to identify a similarly situated comparator — that is, a person

with a similar level of experience who received more attention

or training from Schleicher. See Lawless v. TWC Media Sols.,

Inc., 487 F. App’x 613, 616 (2d Cir. 2012) (rejecting disparate

treatment argument at third stage of McDonnell Douglas analysis

because the plaintiff had not identified a similarly experienced

comparator). Cavanaugh accepts that her co-workers were less

experienced than she was in project management. Pl. 56.1

¶¶ 88-90. Thus, the undisputed facts suggest that, to the

extent Cavanaugh received less training, it was because she was

more experienced than her colleagues, not because she was older

than them. See, e.g., id. ¶ 22 (“Schleicher determined that the

team needed a [senior project manager] with extensive experience

who could provide expertise, leadership, mentorship and general

guidance to the more junior and inexperienced members of the

team.”).

b. The Changes to Cavanaugh’s Workload Do Not

Establish Pretext

The changes in Cavanaugh’s workload — i.e., the

initial assignment of a heavy workload, followed by the

reassignment of tasks to Eberle — also do not suffice at this

stage. Cavanaugh concedes in her complaint that her initial

workload was “not exorbitant . . . for an experienced employee.”

Compl. ¶ 47. And she has identified no record evidence

suggesting that Northwell assigned her these projects because of

her age, rather than because (as both parties agree) it

considered her an experienced employee capable of high-level

tasks. Pl. 56.1 ¶¶ 61, 74, 80, 92, 96; see also Kunik v. New

York City Dep’t of Educ., 436 F. Supp. 3d 684, 694 (S.D.N.Y.

2020) (assignment of increased course load to teacher was not

actionable where it was “not a departure from normal academic

practice” and was “consistent with her level of experience”).

And in the end, the decision to reassign many of those tasks to

Eberle was perfectly consistent with Northwell’s stated reason

for firing Cavanaugh: that she was not completing her work. Id.

¶ 66. Cavanaugh once again fails to identify any contrary

evidence.

c. The Same-Actor Inference Cuts Against a

Showing of Pretext

Finally, Cavanaugh’s argument runs headlong into the

same-actor inference. “[W]hen the person who made the decision

to fire was the same person who made the decision to hire, it is

difficult to impute to her an invidious motivation that would be

inconsistent with the decision to hire. This is especially so

when the firing has occurred only a short time after the

hiring.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d

Cir. 1997). Furthermore, “[t]he fact that the actor involved in

both employment decisions is also a member of the protected

class only enhances the [same-actor] inference.” Austin v. Ford

Models, Inc., No. 95-CV-3731, 2000 WL 1752966, at *14 (S.D.N.Y.

Nov. 29, 2000) (quoting Brown v. CSC Logic, Inc., 82 F.3d 651,

658 (5th Cir. 1996)).

Here, Schleicher (who was fifty-nine) recommended both

hiring and firing Cavanaugh (who was sixty-two when hired and

sixty-three when fired) within less than five months. Pl. 56.1

¶¶ 38, 72, 77, 196, 203-04. Cavanaugh never explains why

Schleicher would have recommended hiring her despite her age in

October 2017, but then recommended firing her in March 2018

because of her age.

Accordingly, Northwell’s motion for summary judgment

is granted with respect to Cavanaugh’s age-discrimination claim.

D. The (Alleged) Hostile Work Environment Claim

In her briefing, Cavanaugh asserts that she also

brought a hostile work environment claim against Northwell. Pl.

Opp. Mem. 16. But there is no separate heading for such a claim

in her complaint. The complaint outlines just one “cause of

action” for “[a]ge discrimination in violation of the [NYSHRL].”

Compl. 18. In fact, the phrase “hostile work environment”

appears only twice in the complaint. In one paragraph,

Cavanaugh states that she complained to Barker about a “hostile

work environment.” Id. ¶ 128. And in the “cause of action”

section, Cavanaugh mentions that Northwell “subjected [her] to a

hostile work environment on the basis of her age.” Id. ¶ 152.

“The Court declines to rewrite [Cavanaugh’s] complaint

for [her].” Insured Advocacy Grp., LLC v. Spartan Servs. Corp.,

No. 23-CV-7212, 2024 WL 3876486, at *1 (S.D.N.Y. Aug. 20, 2024).

Cavanaugh is represented, and thus not entitled to a liberal

construction of her pleading. Id. Her complaint only clearly

alleges one cause of action: age discrimination under the

NYSHRL. Compl. 18. So, she may not now rely on two glancing

references to argue that she also brought a hostile work

environment claim. See Insured Advocacy, 2024 WL 3876486, at

*1; cf. Urtubia v. B.A. Victory Corp., 857 F. Supp. 2d 476, 481

(S.D.N.Y. 2012) (dismissing claims without prejudice where

plaintiff brought wage-and-hour claims under the New York Labor

Law, but cited to inaccurate regulatory provisions).

Even if Cavanaugh had brought a hostile work

environment claim, it would fail on the merits. Hostile work

environment claims under the NYSHRL are governed by the same

standard as claims under Title VII. Summa v. Hofstra Univ., 708

F.3d 115, 123-24 (2d Cir. 2013). To prevail on such a claim,

Cavanaugh must demonstrate that the conduct she challenges was

(1) “objectively severe or pervasive — that is, . . . create[d]

an environment that a reasonable person would find hostile or

abusive,” (2) “create[d] an environment that [she] subjectively

perceive[d] as hostile or abusive,” and (3) “create[d] such an

environment because of” her age. Patane v. Clark, 508 F.3d 106,

113 (2d Cir. 2007). Although “[f]acially neutral incidents may

be included . . . among the totality of circumstances that

courts consider in any hostile work environment claim,” the

plaintiff must still offer “some circumstantial or other basis

for inferring that incidents [age]-neutral on their face were in

fact discriminatory.” Alfano v. Costello, 294 F.3d 365, 378 (2d

Cir. 2002).

Cavanaugh argues that Northwell employees harassed her

by denying her “assistance and resources due to her direct

supervisor’s noted preference for helping younger employees”; by

“stripp[ing]” tasks “away from her in favor of a younger

employee”; and by making “age-related comments.” Pl. Opp. Mem.

17. Her only basis for inferring that otherwise neutral acts —

like stripping her responsibilities and giving them to another

employee — were motivated by her age are the alleged

“age-related comments.”

She identifies three such comments. First, Cavanaugh

testified that Schleicher had “referred to us as being close in

the same age . . . at certain times.” Cavanaugh Dep. Tr.

155:5-10. She never testified when or how these comments were

made. And given the similarity in age, it strains credulity to

assert that the speaker intended these comments as disparaging —

let alone “severely” so. Second, Cavanaugh testified that

Schleicher said to her that Schleicher did not “have to pay as

much attention to you, Diane, because you and I are in different

positions and these kids are gonna go on and do something else.”

Id. at 249:18-24. Again, Schleicher is referencing herself,

even in Cavanaugh’s telling, which makes it less likely that the

statement is derogatory. And third, Cavanaugh testified that

other, younger members of the team told her that “they were very

surprised that [Schleicher] hired an older woman because she had

problems with [another] older woman” employee. Id. at

251:19-23.

These comments do not rise to the level of severe and

pervasive harassment. Cavanaugh only identifies stray (and

somewhat anodyne) remarks about her age. She does not adduce

evidence of the “steady barrage of opprobrious . . . comments”

necessary to prevail on a hostile work environment claim. See

Brenner v. City of New York Dep’t of Educ., 659 F. App’x 52, 54

(2d Cir. 2016) (quoting Tolbert v. Smith, 790 F.3d 427, 439 (2d

Cir. 2015)) (occasional negative comments about “older, white,

Jewish teachers” did not amount to pervasive harassment).6 So,

Cavanaugh has failed to create a genuine dispute of material

fact as to whether she was subjected to a hostile work

environment, and Northwell’s motion for summary judgment must be

granted.

Conclusion

For those reasons, Northwell’s motion for summary

judgment is granted. The Clerk of Court is respectfully

directed to enter judgment and close the case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: March 24, 2025

Brooklyn, New York

6 Beyond that, Schleicher’s supposed comment that she and Cavanaugh were

around the same age cuts against Cavanaugh’s position, because it supports

application of the same-actor inference. See Brown, 82 F.3d at 658 (“The

fact that the actor involved in both employment decisions is also a member of

the protected class only enhances the [same-actor] inference.”).