Alloway

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JO ALLOWAY, et al.,

Plaintiffs,

MEMORANDUM

v. AND ORDER

24-CV-04738-SJB-JMW

BOWLERO CORP., et al.,

Defendants.

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BULSARA, United States District Judge:

Plaintiffs, a collective group of 76 individuals1, commenced this action on July 8,

2024, against Defendants Bowlero Corp. (“Bowlero”), AMF Bowling Centers, Inc.

(“AMF”), and Bowlmor AMF Corp. (“Bowlmor”) (collectively, “Defendants”), alleging

that they were forced out of their jobs when new management switched the company’s

business model to focus on younger clientele. They assert claims under the Age

Discrimination in Employment Act (“ADEA”) for their alleged unlawful termination on

the basis of their age or in retaliation for opposing Defendants’ employment practices.

(Second Am. Compl. dated Feb. 17, 2025 (“SAC”), Dkt. No. 47 ¶¶ 851–57). Defendants

have moved to dismiss the Second Amended Complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). (Defs.’ Mem. of Law in Supp. of Mot. to

1 Originally there were 75 Plaintiffs, but Plaintiff Michelle Gaskey joined the

Second Amended Complaint. (Second Am. Compl. dated Feb. 17, 2025 (“SAC”), Dkt.

No. 47 ¶ 78).

Dismiss dated Apr. 11, 2025 (“Defs.’ Mot. to Dismiss”), Dkt. No. 63). For the reasons

that follow, the Defendants’ motion to dismiss is granted in part and denied in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For the purpose of this motion, the Court is “required to treat” the Plaintiffs’

“factual allegations as true, drawing all reasonable inferences in favor of Plaintiffs to the

extent that the inferences are plausibly supported by allegations of fact.” In re Hain

Celestial Grp., Inc. Secs. Litig., 20 F.4th 131, 133 (2d Cir. 2021). The Court “therefore

recite[s] the substance of the allegations as if they represented true facts, with the

understanding that these are not findings of the court, as we have no way of knowing at

this stage what are the true facts.” Id. In addition to the Complaint, the Court considers

documents that are incorporated by reference, documents which are integral to the

pleading, and documents of which the Court takes judicial notice, including those filed

in another court proceeding. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.

2010); Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006).

Plaintiffs allege that Defendants’ business began as a small cluster of bowling

centers in New York City marketed as “hot spots” for date-night bowling to attract

younger consumers as opposed to the traditionally older, league bowler. (SAC ¶ 137).

In 2013 and through 2014, Defendants acquired roughly 350 bowling centers across the

country from AMF Bowling and Brunswick, becoming the largest operator of bowling

centers in the U.S. and operating as “Bowlmor AMF.” (SAC ¶ 138). Plaintiffs allege

that after acquiring the bowling centers, Defendants sought to transform them into

“young, hip entertainment centers,” a project that led to “massive terminations of older

employees and rehiring of much younger replacements nationwide.” (SAC ¶ 121).

After the acquisitions, bowling center managers were instructed by Defendants’

top management to “manage out” older employees by harassing and closely

scrutinizing them, “looking for purported pretextual justifications to discharge an

employee they felt was too old in appearance to be part of the new Bowlero image.”

(SAC ¶ 140). Plaintiffs also allege that human resources department (“HR”)’s input was

rarely solicited and that most employment decisions, instead, came directly from CEO

Tom Shannon and his inner circle of advisors in New York. (SAC ¶ 93).

Shannon’s involvement allegedly included undertaking two to three minute

interviews over Skype when hiring general managers that were “known to be beauty

contests to screen out older applicants and persons not fitting” the company’s new

young image. (SAC ¶ 96(v)). Plaintiffs also allege that Defendants instructed

candidates to furnish high school graduation dates and photographs when applying for

new positions “to screen out older persons and people in general that did not meet the

new hip, youthful image.” (SAC ¶ 110). They allege that 87% of managers were

terminated shortly after Defendants acquired the centers, with most replaced by

persons under 40 years old. (SAC ¶ 106).

Plaintiffs were employed at local bowling centers across the country, working in

18 different states. (SAC ¶ 158). At the time of their termination, Plaintiffs had been

employed at their respective bowling centers for an average of 18 years and averaged 54

years of age. (SAC ¶ 157). Their alleged terminations, constructive terminations, or

retaliations spanned between 2013 and 2023. (SAC ¶ 101). Plaintiffs allege that they

have suffered lost back and front wages, pecuniary losses, and were subject to extreme

emotional distress and suffering as a result of losing their employment and benefits at a

late stage in life. (SAC at 2).

All 76 Plaintiffs filed individual Charges of Discrimination (“CODs”) with the

United States Equal Employment Opportunity Commission (“EEOC”) for age

discrimination, retaliation, and/or discriminatory hiring practices. (SAC ¶ 119). The

EEOC classified Plaintiffs’ claims as one national systemic investigation against a

common employer and required Plaintiffs’ counsel to file all future CODs with the

EEOC’s Baltimore, Maryland office. (SAC ¶ 122). After its six-year investigation of

Plaintiffs’ CODs, the EEOC found “reasonable cause” existed in 57 of the 76 cases.

(SAC ¶¶ 127, 130). Plaintiffs also allege that the EEOC conducted an additional

“Pattern or Practice Investigation” sua sponte that resulted in similar “reasonable

cause” findings. (SAC ¶¶ 128–29). Plaintiffs’ counsel requested Right to Sue letters for

75 Plaintiffs. 2 (SAC ¶ 130).

Defendants filed an initial request for a premotion conference to dismiss the

original Complaint on the grounds that Plaintiffs failed to timely file their ADEA claims

and failed to plausibly allege age discrimination. (Defs.’ PMC Req. dated July 25, 2024,

Dkt. No. 13 at 1–3). In response, Plaintiffs then filed an Amended Complaint. (Am.

2 Plaintiffs allege that Gaskey’s claim was still under investigation when letters

were requested for the 75 Plaintiffs. (SAC ¶ 130 n. 1). EEOC ultimately issued a Right

to Sue Letter for Gaskey on December 6, 2024. (SAC Ex. 79, Dkt. No. 47-79 at 24).

Compl. dated Oct. 5, 2024, Dkt. No. 26). Defendants then filed a second request for a

premotion conference. (Defs.’ PMC Req. dated Oct. 18, 2024, Dkt. No. 28).

Plaintiffs filed their Second Amended Complaint on February 17, 2025. (SAC).

In response, Defendants filed a renewed request for a premotion conference to dismiss

the Second Amended Complaint. (Defs.’ PMC Req. dated Feb. 25, 2025, Dkt. No. 48).

Plaintiffs responded in opposition on March 4, 2025. (Pls.’ Resp. to Defs.’ PMC Req.,

Dkt. No. 49). Upon review of the premotion conference letters, the Court directed the

parties to submit full briefing on the motion to dismiss. (Order dated Mar. 19, 2025).

The parties completed briefing on the motion to dismiss and filed the bundled briefing

before the Court on June 2, 2025. (See Dkt. Nos. 62–65).

DISCUSSION

“The purpose of a motion to dismiss for failure to state a claim under

Rule 12(b)(6) is to test the legal sufficiency of . . . claims for relief.” Amadei v. Nielsen,

348 F. Supp. 3d 145, 155 (E.D.N.Y. 2018) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir.

2007)). In deciding such a motion, the Court must “construe the complaint liberally,

accepting all factual allegations in the complaint as true, and drawing all reasonable

inferences in the plaintiff’s favor.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir.

2019) (quotations and alteration omitted); Amadei, 348 F. Supp. 3d at 155 (“[W]hen

reviewing a complaint on a motion to dismiss for failure to state a claim, the court must

accept as true all allegations of fact in the complaint and draw all reasonable inferences

in favor of [the non-moving party].”).

Once the facts are construed in the light most favorable to the non-moving party,

to avoid dismissal, there must be sufficient facts that allege a plausible claim. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss [pursuant to

Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” (quotations omitted)). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. A complaint must contain more than “naked assertion[s] devoid of

further factual enhancement.” Id. (quotations omitted). In other words, a plausible

claim contains “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.; Fed. R. Civ. P. 8(a)(2).

“Factual allegations must be enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The

determination of whether a party has alleged a plausible claim is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679; see also Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 113

(2d Cir. 2023).

Additionally, a court “may dismiss a claim on statute-of-limitations grounds at

the pleadings stage ‘if [the] complaint clearly shows the claim is out of time.’” Whiteside

v. Hover-Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021) (quoting Harris v. City of New York,

186 F.3d 243, 250 (2d Cir. 1999)). “A complaint that is time-barred fails to state a claim

on which relief may be granted[.]” Khalil v. Pratt Inst., 818 F. App’x 115, 116 (2d Cir.

2020).

I. Adequacy of the Claims

Defendants argue that Plaintiffs’ claims must be dismissed under Rule 12(b)(6)

for failure to state a claim of age discrimination under the ADEA. (Defs.’ Mot. to

Dismiss at 4). First, they assert that the claims of 64 Plaintiffs are time-barred. (Id. at 3).

Second, they contend that all Plaintiffs fail to sufficiently allege that age was the “but

for” cause of their termination. (Id.). The Court addresses each argument in turn.

a. Time-Barred Claims

“A plaintiff may bring an employment discrimination action under . . . the ADEA

only after filing a timely charge with the EEOC or with a State or local agency with

authority to grant or seek relief from such practice.” Holtz v. Rockefeller & Co., 258 F.3d

62, 82–83 (2d Cir. 2001) (quotations omitted); see also Staten v. Patrolmen’s Benevolent

Ass’n of City of New York, Inc., 736 F. App’x 17, 18 (2d Cir. 2018) (“Before a plaintiff can

file a federal court complaint under Title VII, he must exhaust his administrative

remedies by filing a charge with the EEOC and receiving a right-to-sue letter.”). “To be

timely, a charge [with the EEOC] must be filed within 180 days or 300 days of the date

on which the plaintiff receives notice of her termination [.]”3 Riddle v. Citigroup, 449

3 The 300-day deadline, as opposed to the 180-day deadline, applies to “deferral

states,” where a state law prohibits age discrimination and a state agency or authority

enforces such age discrimination law. See Holowecki v. Fed. Express Corp., 440 F.3d 558,

562 (2d Cir. 2006). Plaintiffs—who reside in different states around the country—do not

specify which statutory filing period applies to any particular Plaintiff and Defendants

do not concede that the more generous 300-day statutory clock applies to all Plaintiffs.

(Defs.’ Mot. to Dismiss at 6). The Court assumes that the 300-day deadline applies as to

Fed. App’x 66, 69 (2d Cir. 2011). If a plaintiff fails to file her EEOC charge within 300

days of the last alleged unlawful employment action, her lawsuit is time-barred. E.g.,

Dupree v. Local 32BJ, No. 10-CV-1894, 2010 WL 3430530, at *2–*3 (E.D.N.Y. Aug. 30, 2010)

(dismissing plaintiff’s claims of discrimination under Title VII and ADEA as time-

barred where plaintiff filed his EEOC Charge outside the requisite 300-day window).

Plaintiffs admit that there were “instances where a Plaintiff filed a COD more

than 180 days or 300 days from the date of termination[.]” (SAC ¶ 124; ¶ 101 (chart

showing date of discharge and date of filing of Plaintiffs’ CODs, including an asterisk to

identify Plaintiffs whose CODs were timely filed)). They nonetheless assert that their

claims are timely as they filed the CODs within 300 days of gaining knowledge of the

alleged age discrimination. (Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss

(“Pls.’ Opp’n”), Dkt. No. 64 at 10, 13). However, the statute of limitations is triggered

by the date of termination, not the date of discovery. See Flaherty v. Metromail Corp., 235

F.3d 133, 137 (2d Cir. 2000) (“[T]he time for filing a claim with the EEOC [based on

discharge] starts running on the date when the employee receives a definite notice of

termination[.]” (quotations omitted)); see also Giordano v. Potter, No. 03-CV-0698, 2004

WL 45526, at *1 (N.D.N.Y. Jan. 9, 2004) (noting a discrimination claim “does not accrue

when the employee learns of information that leads her to believe that a prior adverse

employment action was unlawful, but when she is aware of the actual injury (that is, the

adverse employment action).”).

all Plaintiffs, but even under this more generous deadline, the claims of 63 Plaintiffs are

time-barred.

Here, 63 Plaintiffs‘ filed their CODs after their claims became time-barred — more

than 300 days after their termination or alleged constructive termination. See infra

Table 1.° Having failed to tile within the required time, these Plaintiffs’ claims are

dismissed. See Young v. Edwin Gould Servs. for Child. & Fams., No. 20-CV-0917, 2020 WL

42871064, at *2 (E.D.N.Y. July 27, 2020) (dismissing plaintift’s ADEA claim “[b]ecause

plaintiff tailed to timely file his charge with the EEOC”).

TABLE 1.

Etiilste CSeriecicse itowebiits OO) DE Sts BS iciste1es ee. □□

Bbtioesriecse

10/23/15 08/18/16 | 12/10/16 {{ 165-66

07/03/14 04/29/15 04/03/17 99 174-75

4 Defendants identify 64 time-barred Plaintiffs, (Defs.” Mot. to Dismiss at 5-6),

but the Court finds that Plaintift Parlette’s claim is timely. Defendants rely on an

allegation in the Complaint that Parlette was terminated on September 18, 2014, (Dets.’

Reply Mem., Dkt. No. 65 at 12 (citing SAC 4 578)), but the Complaint also alleges that

she was terminated on November 23, 2015, (SAC {4 578(i), 581), which is supported by

the date in the EEOC Charge, (SAC Ex. 51, Dkt. No. 47-51 at 2). Interpreting the factual

allegations in the Plaintiff's favor, the Court assumes that Parlette was terminated on

November 23, 2015, making her claim time-barred on September 18, 2016. That

deadline fell on a Sunday and she filed her Charge the next day. (SAC § 582). Her

claim is, therefore, timely. See Davis v. FedEx Ground Package Sys., No. 15-CV-04027,

2017 WL 1239594, at *4 (E.D.N.Y. Mar. 31, 2017) (“[P]er Fed. R. Civ. P. (6)(a)(1)(©C),

because the last day of the statutory period was a Sunday, the 300-day period ended on

Monday, March 30, 2015, ‘the next day that [was] not a Saturday, Sunday, or legal

holiday.””); Seck v. Info. Mgmt. Network, No. 15-CV-7354, 2015 WL 13662180, at *3

(S.D.N.Y. Dec. 7, 2015) (extending the last day of the plaintiff’s 300-day period to the

next business day when deadline fell on a Saturday), aff'd, 697 F. App’x 33 (2d Cir.

2017).

° The relevant dates for the statutes of limitations were determined by both the

allegations in the Complaint and the attached EEOC Charges. Courts may consider

documents attached to the complaint or incorporated by reference in determining if a

plaintiff has satisfied the ADEA’s time limit requirements. See Holowecki, 440 F.3d at 565

(“In reviewing the Rule 12(b)(6) ruling, it is proper tor this court to consider the

plaintiffs relevant filings with the EEOC . . . because the Holowecki plaintiffs rely on

these documents to satisfy the ADEA’s time limit requirements.”).

Bea 03/01/16 12/26/16 02/17/17 ¶¶ 183–84

Bengiveno 07/12/13 05/08/14 06/05/17 ¶¶ 192–93

Bernstein 07/23/15 05/18/16 12/12/16 ¶¶ 201–02

Berry 05/22/15 03/17/16 04/06/17 ¶¶ 210–11

Boggio 03/12/14 01/06/15 04/05/17 ¶¶ 219–20

Bozzo 10/01/15 07/27/16 01/22/18 ¶¶ 236–37

Bustillos 05/01/15 02/25/16 12/13/16 ¶¶ 245–46

Cains 09/09/13 07/06/14 02/22/17 ¶¶ 254–55

Chase 01/19/15 11/15/15 12/13/16 ¶¶ 263–64

Choudhury 07/01/14 04/27/15 02/20/17 ¶¶ 272–73

Clark 09/11/13 07/08/14 12/12/16 ¶¶ 281–82

Cox 07/20/15 05/15/16 04/03/17 ¶¶ 290–91

Cramton 10/31/21 08/27/22 08/07/23 ¶¶ 299–300

Csernay 04/30/14 02/24/15 04/19/17 ¶¶ 308–09

Dahkle 04/28/15 02/22/16 09/30/17 ¶¶ 317–18

Devita 08/01/13 05/28/14 12/10/16 ¶¶ 326–27

Duffy 07/01/15 04/26/16 02/23/17 ¶¶ 335–36

Dziemianzuk 01/13/15 11/09/15 12/10/16 ¶¶ 344–45

Edwards 03/01/14 12/26/14 12/12/16 ¶¶ 353–54

Evans 03/17/14 01/11/15 04/05/17 ¶¶ 362–63

Frazier 01/02/14 10/29/14 07/04/17 ¶ 370; Ex. 27 at 3

Freer 09/16/15 07/12/16 12/12/16 ¶¶ 379–80

Hatcher 06/20/14 04/16/15 12/12/16 ¶¶ 388–89

Hoerner 05/01/14 02/25/15 02/18/17 ¶¶ 397–98

Hoggatt 09/01/13 06/28/14 02/16/17 ¶¶ 406–07

Horsley 05/01/15 02/25/16 05/26/17 ¶¶ 415–16

Julian 01/01/14 10/28/14 04/04/17 ¶¶ 424–25

Kiefer 10/04/14 07/31/15 04/21/17 ¶¶ 441–42

Kristina 08/09/13 06/05/14 05/23/17 ¶ 451; Ex. 36 at 2

Kittidumrongkool

Keith 07/01/14 04/27/15 03/10/17 ¶¶ 458–59

Kittidumrongkool

Klowiewski 06/29/14 04/25/15 10/03/17 ¶¶ 467–68

Lerner 09/01/14 06/28/15 05/23/17 ¶¶ 476–77

MacCracken 08/13/14 06/09/15 12/13/16 ¶¶ 485–86

Martinez 08/02/13 05/29/14 12/10/16 ¶¶ 502–03

Meinhofer 08/31/15 06/26/16 12/13/16 ¶¶ 519–20

Nelson 09/01/14 06/28/15 04/23/17 ¶¶ 528–29

Nichols 10/04/15 07/30/16 02/19/17 ¶¶ 537–38

Nuss 09/15/15 07/11/16 12/27/16 ¶¶ 554–55

Ortega 10/04/13 07/31/14 04/23/17 ¶¶ 563–64

Paone 06/30/15 04/25/16 02/21/17 ¶¶ 572–73

Peters 08/09/13 06/05/14 5/23/17 Ex. 52 at 2–3

Reed 03/01/14 12/26/14 04/04/17 ¶¶ 598–99

Renstrom 05/26/15 03/21/16 12/22/16 ¶¶ 615–16

Rice 01/15/15 11/11/15 02/18/17 ¶¶ 624–25

Sass 06/01/14 03/28/15 01/09/17 ¶¶ 633–34

Segers 11/19/13 09/15/14 12/23/16 ¶¶658–59

Serignano 09/22/14 07/19/15 12/16/16 ¶¶ 667–68

Shafer 10/02/13 07/29/14 01/08/17 ¶¶ 676–77

Shannon-Carr 03/17/14 01/11/15 04/05/17 Ex. 63 at 2–3

Snyder 12/01/13 09/27/14 04/05/17 ¶¶ 693–94

Sylvester 01/20/15 11/16/15 12/13/16 ¶¶ 702–03

Tuttle 11/01/13 08/28/14 01/09/17 ¶¶ 727–28

Valentine 12/01/14 09/27/15 02/16/17 ¶¶ 736–37

Van Gilder 03/20/15 01/14/16 12/26/16 ¶¶ 745–46

Van Wart 11/11/15 09/06/16 12/12/16 ¶¶ 754–55

Van Wyk 09/25/13 07/22/14 02/20/17 ¶¶ 766–67

Waite 11/14/14 09/10/15 02/20/17 ¶¶ 772–73

West 12/01/15 09/26/16 04/20/17 ¶¶ 789–90

Winkler 06/01/15 03/27/16 12/12/16 ¶¶ 797–98

Woodward 04/30/15 02/24/16 12/11/16 ¶¶ 806–07

Zawacki-Chapman 09/01/14 06/28/15 04/18/17 ¶ 812; Ex. 78 at 2

In the alternative, Plaintiffs assert that their claims are not time-barred because

they are entitled to equitable tolling. (Pls.’ Opp’n at 10–12). Equitable tolling of the

ADEA’s exhaustion requirement is “only appropriate in rare and exceptional

circumstance[s], in which a party is prevented in some extraordinary way from

exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir.

2003) (quotations omitted). Before a plaintiff can obtain equitable tolling, they must

first show they were diligent in pursuing their claims. Id. at 80–81 (noting inquiry is

whether plaintiff “has acted with reasonable diligence during the time period she seeks

to have tolled[.]” (quotations omitted)). These 63 Plaintiffs fail this requirement.

Many Plaintiffs waited several years to bring their Charges to the EEOC. (See

supra Table 1; e.g., Hatcher (waiting over two years); Csernay (waiting approximately

three years); Ortega (waiting over three years)). Plaintiffs explain such delay by

claiming they did not suspect they had been discriminated against until they “learned

from Plaintiffs’ counsel . . . that they were dismissed because of their age.” (SAC ¶ 100).

Yet at the same time they contend they were “in total disbelief of their

terminations . . . all having sound track records and no deficiencies leading to abrupt

dismissals in a vacuum.” (Pls.’ Opp’n at 14). If allegations that “most Plaintiffs were

confused as to why they were suddenly being discharged” or “stunned that they were

being discharged given their exemplary performance,” (SAC ¶ 144), are accepted as

true—as required on this motion— it demonstrates their lack of diligence. See Visco v.

Brentwood Union Free Sch. Dist., 991 F. Supp. 2d 426, 435 (E.D.N.Y. 2014) (refusing to

apply equitable tolling where “Plaintiff could have, and indeed did, suspect

discrimination well before she definitively learned of younger teachers receiving

tenure.”).

Even if they were diligent, these plaintiffs would not be entitled to tolling. For

equitable tolling to be available, ordinarily the “employer’s misleading conduct [must

be] responsible for the employee’s unawareness of his cause of action.” Dillman v.

Combustion Eng’g, Inc., 784 F.2d 57, 60 (2d Cir. 1986). Plaintiffs must allege facts from

which the Court could conclude that they were “unaware of [their] cause of action

under the ADEA because of [the employer’s] misleading conduct.” Id. “This theory of

fraudulent concealment warrants equitable tolling if the plaintiff can show that it would

have been impossible for a reasonably prudent person to learn that the defendant’s

conduct was discriminatory.” Roy v. Buffalo Philharmonic Orchestra, 684 F. App’x 22, 23

(2d Cir. 2017) (quotations omitted). Such circumstances are not present here.

Plaintiffs assert that given Defendants’ “nationwide scheme to terminate

employees based upon age,” Plaintiffs in one state would have no knowledge of a

terminated employee in another state, preventing them from exercising their rights.

(Pls.’ Opp’n at 12). They argue that it was impossible for all 76 Plaintiffs to suspect that

their discharge was discriminatory as HR representatives were “giving none of them a

clear understanding of why they were terminated,” and that this context constitutes

extraordinary circumstances. (Id. at 13–14). Plaintiffs do not cite to any caselaw where

the presence of a nationwide scheme was a basis for tolling. Nor have they cited any

case where tolling was accorded in gross—to an entire group—as opposed to on an

individualized basis from that employee’s particular circumstances. Furthermore, the

presence of multiple plaintiffs across many states does not indicate, standing alone, that

Defendants acted in a misleading way so as to prevent an employee from learning they

were fired because of age. Indeed, nothing about the existence of other plaintiffs

prevents a single plaintiff from drawing an inference that they were fired because of

their age. And even accepting Plaintiffs’ tolling theory, they fail to allege that the firings

were carried out in a manner to prevent individuals from learning about the firings of

other plaintiffs (for example, by only firing one person at an individual location or by

forcing parties to sign NDAs upon termination). In fact, they allege that the firings

were broadly done, throughout the country, in an open and obvious way—for the

ostensible purpose of shifting the ethos of the company to a younger customer base.

(SAC ¶¶ 121, 158). That conduct, if true, would not have prevented a plaintiff from

learning more about the basis for their firing and compelling them to bring suit; quite

the opposite.

Ultimately, “the doctrine of equitable tolling ‘does not permit plaintiffs to

suspend the time for filing discrimination complaints indefinitely when they discover

instances of treatment of other employees months or years after their discharge.’”

Fausto v. Reno, 955 F. Supp. 286, 293 (S.D.N.Y 1997) (adopting report and

recommendation) (quoting Pacheco v. Rice, 966 F.2d 904, 907 (5th Cir. 1992)). Courts

“have refused to apply equitable tolling where the claimant contends that [they]

discovered the alleged discriminatory motive for the employer’s act years later, based

upon the employer’s treatment of other employees.” Jones v. LIRR, No. 96-CV-0433,

1998 WL 221365, at *3 (E.D.N.Y. May 1, 1998), aff’d, 173 F.3d 844 (2d Cir. 1999); see also

Castricone v. Cnty. of Erie, No. 96-CV-0372, 1997 WL 584311, at *2 (W.D.N.Y. Sep. 9,

1997).

Plaintiffs also contend that the limitations period should be tolled because they

were allegedly misled by pretextual terminations. (Pls.’ Opp’n at 12; see, e.g., SAC

¶¶ 165, 174, 183). But the presence of pretext is not a basis for tolling—otherwise

virtually every ADEA case would be subject to tolling—in the absence of some other,

additional misconduct that prevents the plaintiff from learning about or asserting their

rights. See Talyansky v. Mercury Print Prod., Inc., No. 98-9438, 1999 WL 642922, at *2 (2d

Cir. Aug. 20, 1999) (rejecting tolling based on alleged pretextual justification of

downsizing); e.g., Carrion v. Coca-Cola Bottling Co. of New England, No. 05-CV-1720, 2006

WL 3526748, at *4 (D. Conn. Dec. 1, 2006) (“Even if Coca–Cola used Carrion’s supposed

theft as an excuse for a discriminatory termination, which the court does not decide, this

does not amount to improper delaying or misleading by Coca–Cola to trigger these

equitable doctrines.”); Gray v. Shearson Lehman Bros., Inc., 947 F. Supp. 132, 135 (S.D.N.Y.

1996) (“[P]laintiff’s lack of awareness of defendants’ intent does not toll the filing

period, and the fact that defendants may have provided other reasons for the

employment actions does not justify an inference that plaintiff was misled.”). “To hold

otherwise would allow the exception of equitable tolling to swallow the rule . . . that an

employee’s awareness of a discriminatory motive has no bearing on the 300-day

period.” Syrkin v. State Univ. of N.Y., No. 04-CV-4336, 2005 WL 2387819, at *9 (E.D.N.Y.

Sep. 29, 2005).

Because no Plaintiff has adequately alleged that Defendants actively misled them

in a manner that prevented them from timely asserting their claims, they are not

entitled to equitable tolling. E.g., Seck v. Info. Mgmt. Network, 697 F. App’x 33, 34 (2d Cir.

2017) (“Equitable estoppel did not apply because Seck did not allege facts showing that,

while he was aware of his federal claims, the defendants prevented him from suing to

assert them.”). And, therefore, the claims of the 63 Plaintiffs who are time-barred are

dismissed with prejudice. See Shafi v. Barnelap Indus., Inc., 09-CV-2991, 2010 WL

11626904, at *1 (E.D.N.Y. 2010).

b. Claims of Remaining Plaintiffs.

This leaves 13 Plaintiffs whose claims are not time-barred. Defendants seek to

dismiss their claims for failure to adequately state an ADEA claim.

The ADEA makes it unlawful for an employer to “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). To survive a

motion to dismiss, a plaintiff must plausibly allege (1) that the employer took adverse

employment action and (2) that such action would not have occurred “but for his age.”

Lively v. WAFRA Inv. Advisory Grp., 6 F.4th 293, 303 (2d Cir. 2011) (“[I]t is not sufficient

for a plaintiff to show that ‘age was simply a motivating factor’ in the employer’s

adverse action” (quoting Gross v. FBL Fin. Sevs., 557 U.S. 167, 174 (2009))); see also

Bernstein v. N.Y.C. Dept. of Educ., No. 21-2670, 2022 WL 1739609, at *1 (2d Cir. May 31,

2022) (affirming dismissal of an age discrimination claim where the plaintiff “fail[ed] to

allege that he was mistreated because of his age.”). To meet this standard, plaintiff is

required to plead only enough facts that might plausibly support a “minimal inference

of but-for causality between his age and his termination.” Marcus v. Leviton Mfg. Co.,

Inc., 661 Fed. App’x 29, 32 (2d Cir. 2016) (quotations omitted); Levy v. Legal Aid Soc’y,

408 F. Supp. 3d 209, 216 (E.D.N.Y. 2019) (“[A]ny inquiry into any non-discriminatory

reasons for a defendant’s conduct is reserved for summary judgment or trial.”).

Defendants do not challenge that Plaintiffs have sufficiently pleaded adverse

employment actions (termination and constructive termination). They maintain,

however, that Plaintiffs fail to allege sufficient facts to give rise to an inference that they

would not have been terminated but-for their age. (Defs.’ Mot. to Dismiss at 9). They

assert that Plaintiffs’ claims should be dismissed for “fail[ing] to allege that the stated

reason was a pretext for age discrimination.” (Id. at 14). But in doing so, Defendants—

relying on McDonnell Douglas—misconstrue the Plaintiffs’ burden at this stage.

The determination of whether an employer’s stated reason was a pretext for the

alleged discriminatory conduct is relevant only to summary judgment.6 See Marcus, 661

Fed. App’x at 32 n.2 (“McDonnell Douglas is an evidentiary standard, not a pleading

standard, and is therefore not the relevant standard at the 12(b)(6) stage.”); Brown v.

Daikin Am. Inc., 756 F.3d 219, 230–31 (2d Cir. 2014) (“Whether there existed non-

pretextual, non-discriminatory explanations for the defendants’ employment

decisions—a question as to which the defendants bear the burden of production—is not

properly decided on a motion to dismiss for failure to state a claim.” (citation omitted));

see also Kimura v. Japanese Educ. Inst. of N.Y., No. 96-CV-6063, 1997 WL 1048909, at *3

(E.D.N.Y. Nov. 4, 1997) (“[A] plaintiff’s failure to show pretext or intentional

discrimination is inconsequential to a 12(b)(6) motion.”).

6 Under the McDonnell Douglas framework a plaintiff bears the initial burden of

establishing a prima facie case of age discrimination, by showing “(1) that []he was

within the protected age group, (2) that []he was qualified for the position, (3) that []he

experienced [an] adverse employment action, and (4) that the action occurred under

circumstances giving rise to an inference of discrimination.” Lively, 6 F. 4th at 293, 302

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

2012)). Once a prima facie case is established, the defendant must produce evidence of

a legitimate, non-discriminatory reason for the adverse action, and the plaintiff must in

turn “rebut [this] by showing that the employer’s determination was in fact the result of

[age] discrimination.” Id. (quotations omitted).

In arguing that Plaintiffs must plead facts demonstrating pretext, Defendants cite

to Soto v. Marist College. (Defs.’ Mot. to Dismiss at 14). However, in Soto, the court’s use

of the word “pretext” was not a vehicle for importing the McDonnell Douglas framework

to the pleading stage, as Defendants erroneously interpret it as a license to do.7 Instead,

it was evidence that plaintiff’s complaint was deficient, and contained no facts from

which any inference of discrimination could be drawn. No. 17-CV-7976, 2019 WL

2371713, at *6 (S.D.N.Y. June 5, 2019) (“Although Plaintiff states that he believe[s] that

this explanation was pretextual, he pleads no facts that, if true, would enable the Court

to draw the same inference.” (quotations omitted)); see also Lively, 6 F.4th at 307 (where

plaintiff failed to allege any facts in support of his discrimination claim, the conclusory

assertion that the stated reason for his termination “was nothing more than a pretext”

was “implausible”). At most, Soto and the cases it cites stand for the modest

proposition that allegations of pretext, when pled by the plaintiff, can establish (or the

absence of) the necessary inference of discrimination to permit a case to go forward to

discovery. It does not otherwise raise the pleading standard or import the typical

summary judgment inquiry into an earlier stage of the case.

7 For example, Defendants cite to Ponniah Das v. Our Lady of Mercy Medical

Center, in arguing that allegations of past exemplary job performance do not support an

inference of discrimination. (Defs.’ Mot. to Dismiss at 16). However, Ponniah Das

concerned a summary judgment motion and held that because the defendant had stated

a “legitimate, nondiscriminatory reason,” the burden now fell on plaintiff to prove that

the “proffered explanation [was] not truthful, but merely a pretext for discrimination”

for termination. No. 00-CV-2574, 2002 WL 826877, at *6 (S.D.N.Y. Apr. 30, 2002).

Separately, Defendants urge this Court to ignore the attached EEOC

Determinations in analyzing the plausibility of Plaintiffs’ claims.8 However, at the

motion to dismiss stage, courts often consider EEOC decisions incorporated in a

complaint. See, e.g., Boyar v. Yellen, No. 21-507, 2022 WL 120356, at *2 (2d Cir. Jan. 13,

2022) (considering an attached EEOC decision concluding that plaintiff’s employment

was terminated for cause when affirming the district court’s dismissal of disparate

treatment claims). And furthermore, in this case the EEOC decisions are often

incorporated into the Plaintiffs’ own allegations. (e.g., SAC ¶ 718). The Court is,

therefore, permitted to consider them on this motion. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 152–53 (2d Cir. 2002) (“[O]n a motion to dismiss, a court may consider

documents attached to the complaint as an exhibit or incorporated in it by reference”

where a plaintiff “reli[es] on the terms and effect of a document in drafting the

complaint.”); see, e.g., Collins v. City of New York, 156 F. Supp. 3d 448, 455 n.4 (S.D.N.Y.

8 Of the remaining Plaintiffs, the Complaint includes EEOC Determinations for

about half. In all the Determinations, the EEOC includes language that asserts based on

“[s]tatistical analysis of [Defendants’] discharge patterns and anecdotal evidence of

incidents of age-based targeting of employees” a finding that Defendants had engaged

in a “pattern or practice of age discrimination against older workers.” (See, e.g., SAC Ex.

74, Dkt. No. 47-74 at 25). Such allegations of Defendants’ pattern or practice of

discriminating against older employees, though not dispositive, are still relevant to the

individual Plaintiff’s claims of discrimination. See Doheny v. Int’l Bus. Machines, Corp.,

714 F. Supp. 3d 342, 361 (S.D.N.Y. 2024) (allegations that Plaintiff was the oldest

member of her team and was suddenly laid off despite her “excellent work record,”

alongside allegations that defendant disproportionately laid off a high number of

employees over the age of 40, rendered it plausible that she would not have been laid

off but for her age). But for the reasons noted below, the Plaintiffs whose claims are

being dismissed on the merits have failed to assert essential elements of the claim

(including that the replacement employee was under 40 years old). The Determinations

only raise the plausibility of the claims that already themselves have sufficient

allegations to go forward, but do not save those which do not.

2016) (considering EEOC charge referenced in complaint in deciding motion to

dismiss).

Defendants are correct that EEOC decisions are not categorically admissible, let

alone, dispositive of the merits of a claim (such as by making a wholly implausible

claim of discrimination plausible). See Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 65

(2d. Cir. 1998) (noting that employment agency determinations “vary greatly in quality

and factual detail,” and permiting defendants to “expose [any] weaknesses of the

report[s].”). But a court may consider an attached EEOC decision and its reasoning

alongside plaintiff’s allegations, to determine if, together, the plaintiff has offered more

than “labels and conclusions” and “nudged their [ADEA claim] across the line from

conceivable to plausible.” Twombly, 550 U.S. at 555, 570; Philbrook v. Ansonia Bd. of

Educ., 757 F.2d 476, 481 (2d Cir. 1985) (“Moreover, we agree that a finding of probable

cause by an administrative agency, such as the EEOC, though not determinative, is

admissible to help establish this prima facie case.”), aff’d and remanded on other grounds,

479 U.S. 60 (1986); e.g., Henderson v. Saks & Co., LLC, 22-CV-9925, 2024 WL 1134586, at

*2–*3 (S.D.N.Y. Mar. 15, 2024) (finding that an EEOC probable cause determination

along with plaintiff’s allegations was enough to overcome a motion to dismiss). The

Court, therefore, addresses the sufficiency of each remaining Plaintiffs’ allegations in

turn. Those Plaintiffs are: Weimer, Reese, Kelly, Gaskey, Nilsen, Matthew Schneider,

Tracy Schneider, Tanase, Synol, Boniol, Parlette, McBride, and Marino.

First, Weimer alleges that he was terminated on February 26, 2016, when he was

56 years old. (SAC ¶ 778). He alleges that his stated cause for his firing was based on

three incidents: twice where he paid out of pocket for business-related services,

including paying a mechanic to fix an inoperable lane in 2014, and once where he added

hourly wages to an employee’s paycheck when her husband helped her run a youth

bowling league. (Id.) Defendants argue for dismissal because “he admits” the

allegations that led to his discharge and “fails to allege that the stated reason [for his

termination] was a pretext for age discrimination.” (Defs.’ Mot. to Dismiss at 14). But

Weimer also alleges that he was a “highly successful manager and never had a negative

annual review or blemish on his performance record” in his 25 years of employment.

(SAC ¶ 778(b)). He contends that “management was well aware” of the incidents and

that he had even received another favorable review in October 2015, after the 2014 lane

incident. (SAC ¶ 778(d)). Further, Weimer alleges that he was replaced by a 24-year-

old male. (SAC Ex. 74, Dkt. No. 47-74 at 3). In their Determination, the EEOC found

that Weimer had been “discharged because of age in violation of the ADEA” and that

Defendants’ explanation for his discharge was “a pretext for age discrimination.” (Id. at

25). Weimer’s allegations are enough to satisfy the pleading standard. See, e.g.,

Roginsky v. Cnty. of Suffolk, N.Y., 729 F. Supp. 2d 561, 568–69 (E.D.N.Y. 2010) (rejecting

argument that plaintiff had failed to plead but for causation—in face of policy violations

that led to termination—when he claimed he had previously engaged in the same

conduct “without any adverse consequences despite the [defendant’s] knowledge[.]”).

In the same vein, Defendants argue that Reese’s claim should be dismissed

because he failed to deny that a reduction in force—the stated reason for his

termination—had occurred. (Defs.’ Mot. to Dismiss at 15). Reese alleges that at the

time Defendants acquired the bowling centers where he worked, he was a district

manager that oversaw nine bowling centers in Arizona alongside another district

manager, Mr. Hall. (SAC ¶ 604(b)). In the summer of 2016, a younger area manager,

Mr. Pulzato, was given responsibility for three bowling centers in the region. (SAC Ex.

54, Dkt. No. 47-54 at 37). Reese was then discharged on June 2, 2017. (SAC ¶ 607).

Defendants argue for dismissal because Reese does not allege that the

“unspecified co-workers” who remained were not in his protected class. (Defs.’ Mot. to

Dismiss at 15). But Reese contends that he was 64 years old when he was fired and that

Mr. Hall, his counterpart who was retained, was approximately 30 years younger and

“significantly less experienced in both single center and multi-center management.”

(SAC ¶ 604(d)). Although Reese does not allege a specific age for Hall, his

approximation of Hall’s age is sufficient to infer that Hall was not in the class protected

by the ADEA. See Mitchell v. N.Y.C. Dept. of Educ., No. 24-992, 2025 WL 978366, at *2–*3

(2d. Cir. Mar. 31, 2025) (“[Plaintiff’s] allegations on information and belief concerning

the demographics of the teachers hired in place of the terminated older teachers,

including him, are sufficient at the pleading stage” and are “the types of allegations

entitled to a presumption of truth on a Rule 12(b)(6) motion.”). And the cases that

Defendants cite—where individuals over 40 were the replacement employees—are

inapposite. (Defs.’ Mot. to Dismiss at 15 (citing, for example, Pustilnik v. Battery Park

City Auth., No. 18-CV-9446, 2019 WL 6498711, at *5 (S.D.N.Y. Dec. 3, 2019) (both plaintiff

and her replacement were over 40)). Bolstered by the EEOC’s findings that Reese’s

termination was a “pretext for age discrimination” as he was “effectively” replaced by

the “younger Mr. Pulzato,” the Complaint contains sufficient facts to make plausible

that “but for” his age Plaintiff Reese would still be employed. (SAC Ex. 54, Dkt. No. 47-

54 at 37).

Kelly alleges that he was constructively terminated on April 8, 2017, when he

was 53 years old after working for the same bowling center for 26 years. (SAC ¶¶ 430,

433). Shortly after Bowlmor acquired his center, the Company’s Senior Vice President

and his general manager “relentlessly challenged everything he did” and he received

“his only write-up in 26 years” in February 2017, two months prior to termination.

(SAC ¶ 430(d)). Defendants argue that allegations of past exemplary job performance

do not support a plausible inference of discrimination. (Defs.’ Mot. to Dismiss at 16).

But in doing so, Defendants cite to a summary judgment decision. See Ponniah Das, 2002

WL 826877 at *6. And again, at the pleading stage, a plaintiff does not bear the same

burden, and allegations of a long history of exemplary performance may make it more

likely that age was a but-for cause of a sudden termination. See, e.g., Doheny v. Int’l Bus.

Machines, Corp., 714 F. Supp. 3d 342, 361 (S.D.N.Y. 2024) (finding that the “alleged

circumstances surrounding [plaintiff’s] layoff do render it plausible that she would not

have been laid off but for her age” as she was in her early 60s and “one of the oldest

members of her team” and was “suddenly laid off despite her excellent work record”

(quotations omitted)).

Defendants point out that Kelly alleges that he failed to “lock out a machine prior

to fixing” which was “technically a violation.” (SAC ¶ 430). The EEOC found that

Defendants’ explanation for his discharge was “a pretext for age discrimination” and

that there is “reasonable cause to believe that [Defendants] caused [Kelly] to be

constructively discharged . . . as part of a company-wide pattern or practice of

discharging employees because of their age.” (SAC Ex. 34, Dkt. No. 47-34 at 20). And

he also asserts that he was replaced by “the boyfriend of [his] general manager who was

much younger than [him].” (Id. at 3). These allegations, taken together, are enough to

withstand Defendants’ motion to dismiss. See, e.g., Gonzalez v. Carestream Health, Inc.,

520 Fed. App’x. 8, 10 (2d Cir. 2013) (where plaintiff “alleged that he is a 60–year old

man with ‘stellar’ performance evaluations, who was terminated for pretextual

reasons . . . combined with his allegation that [defendant] maintained substantially

younger workers, we find that no further amplification was necessary to state a

plausible claim of age discrimination”).

Gaskey alleges that she was unlawfully “managed out” by the Defendants on

October 31, 2023, when she was 48 years old. (SAC ¶ 823). When she was hired as a

Senior Sales Manager, she was 47 years old but that “she looked to be in her mid-20s.”

(SAC ¶ 823(b)). As her colleagues learned about her age, they began to refer to her as

“grandmother” and that after management became aware of her actual age, she began

to receive write-ups. (SAC ¶¶ 823(e–f)). She alleges that she was receiving these write-

ups “over inconsequential details while her younger colleagues were not given write-

ups for the same conduct” and that she was denied new leads for large group events

that were assigned “to other younger, less experienced members of the sales team.”

(SAC ¶¶ 823(f), (h)). At the time of her termination, she was the best performing

salesperson and that all the other salespersons in her group were between 22 and 28

years old. (SAC ¶ 823(n)). Given her allegations that she was punished for actions that

her younger colleagues were not, only upon management becoming aware of her age

and despite her superior performance, Gaskey has sufficiently pled an age

discrimination claim.9

Nilsen alleges that he was terminated because of his age on November 15, 2017,

when he was 57 years old. (SAC ¶ 543(e)). Defendants argue for the dismissal of

Nilsen’s claim because he admits that he failed to “follow[] procedures” in terminating

an employee under his supervision in November 2017. (Defs.’ Mot. to Dismiss at 13

n.10; SAC ¶ 543(c)). He alleges that prior to his termination, in August 2017, he

received “excellent” scores that would put him “within the top 10–20% of all company

general managers for fiscal year 2017.” (SAC Ex. 47, Dkt. No. 47-47 at 2). He found his

termination “odd” because he had never been written up for any company policy

violation. (SAC ¶ 543(d)). Further, he alleges he was replaced by a 29-year-old

employee. (SAC Ex. 47, Dkt. No. 47-47 at 3). Again here, such allegations are sufficient

to satisfy the ADEA pleading standard. See, e.g., Schnabel v. Abramson, 232 F.3d 83, 87

(2d Cir. 2000) (holding that plaintiff “put forth the minimal proof necessary to establish

a prima facie case of age discrimination” by pleading that he was over 60 years old, had

extensive experience, was discharged, and was replaced by a 31-year-old employee).

9 Defendants argue that Plaintiffs only conclusively allege that they were

“managed out” and that, regardless, such allegations would be insufficient to meet the

pleading standard. (Defs.’ Mot. to Dismiss at 18). But they rely on Hill v. Bloomberg L.P.,

a summary judgment case where the court dismissed a discrimination claim because

the plaintiff had only summarily stated that he was “managed out.” See No. 14-CV-

9809, 2016 WL 1665599, at *11 (S.D.N.Y. Apr. 20, 2016). Such a case is inapposite.

Matthew Schneider alleges that he was employed in the bowling industry for 25

years when he was unlawfully discharged by the Defendants at 47 years old. (SAC

¶ 639). On November 3, 2017, the district manager questioned him about “anomalies

with certain transactions involving [an] employee.” (SAC ¶ 639(d)). When he inquired

into the transactions, he was given no specific details and was separately told that his

bowling center’s costs were rising “when, as general manager, he knew they were

decreasing and that his bowling center was one of the best performing bowling centers

in its district.” (Id). Schneider was then terminated “for violating a company policy,

although not one specific policy was mentioned.” (SAC ¶ 639(e)). During his final pre-

termination employment review in September 2017, two months prior, he “received a

very positive review and a 2% salary increase.” (SAC ¶ 639(c)). He also alleges that he

was replaced by his former assistant manager, Eric Gray, who was 28 years old. (SAC

¶ 639(f)). Such allegations are sufficient to make Schneider’s claim of age

discrimination plausible.

Tracy Schneider alleges that she was employed in the bowling industry for 31

years when she was unlawfully discharged by the Defendants because of her age when

she was 58 years old. (SAC ¶ 647). In the last year of her employment as a general

manager, she “was constantly being pressured and her work scrutinized by then district

manager, Scott Chauncey” and was placed on a Performance Improvement Plan,

despite her consistent “good performance.” (SAC ¶ 647(c)). She alleges Chauncey fired

her and cited her failure to place cash immediately into a safe when she was attending

to a guest who had fallen. (SAC Ex. 59, Dkt. No. 47-59 at 3). She was replaced by her

Operations Manager who was “much younger than 40 years old” and who, six months

prior to her termination, had wanted to transfer to another center but was told by the

district manager that “he could not transfer, because he had other plans for him.” (Id. at

2). Schneider’s allegations that she was over 40, replaced by a specific employee under

40, and was suddenly placed on a Performance Improvement Plan, a decision she

describes as pretextual, are sufficient to advance her claim.

Tanase alleges that he was employed in the bowling industry for 22 years when

he was unlawfully discharged by the Defendants on May 16, 2023, at 61 years old.

(SAC ¶ 716). As Vice President of Information Technology working in the Defendants’

New York office, (SAC ¶¶ 716(a)), he witnessed “as the Defendants routinely

terminated older employees and replaced them with much younger employees to fit the

new image Defendants desired.” (SAC ¶ 716(e)(i)). It was “known internally within the

executive offices company that if your appearance was old . . . you were subject to being

‘managed out.’” (SAC ¶ 716(e)(ii)). He also witnessed first-hand how closely involved

Shannon was in personnel decisions and often needed his assistance with the virtual

interviews that “were essentially a means for Shannon to judge the age and appearance

of the candidate for youthfulness and physical attraction.” (SAC ¶ 716(e)(v)).

He alleges that he was “managed out” as Defendants installed a “much younger

employee as someone that would help [him],” but that almost immediately he was

“undermined by this new person” with the “purpose of finding some fact or statement”

to use “as a pre-text to terminate” him. (SAC ¶¶ 716(h–i)). In May 2023, he received a

call from HR stating that they accepted his resignation, even though he had not

submitted his resignation. (SAC ¶ 718; SAC Ex. 67, Dkt. No. 47-67 at 3). He was

allegedly “replaced by a much younger male employee.” (SAC ¶ 716(m)).

The EEOC issued a Determination finding that “at no time did [Tanase] intend to

resign” and that Defendants “mischaracterized his disagreement with his supervisor as

a pretextual justification for falsely asserting that he had resigned.” (SAC Ex. 67, Dkt.

No. 47-67 at 23). The Determination states that Defendants had “maintained a practice

of ‘managing out’ older workers, wherein [Defendants’] officials harass and closely

scrutinize such workers looking for purported justification to discharge them” and that

such practice was applied to Tanase and noted his supervisor’s conduct “included

unwarranted hostility, frequent criticism, unnecessary correction of his work” and

more. (Id.). The Determination further found that Tanase’s adverse employment action

took place in a “context of pervasive age bias” where “[Defendants’] officials with direct

or successively higher supervisory authority over [Tanase] and [his direct supervisor]

frequently made age-biased remarks about older workers and stated a desire to hire

younger workers.” (Id. at 24). Such allegations, taken together, are enough to advance

his claim.

Synol alleges that she was employed in the bowling industry for 29 years when

she was unlawfully discharged at 61 years old. (SAC ¶ 708). She “received positive

performance reviews and never once was the subject of a disciplinary incident or write-

up.” (SAC ¶ 708(b)). Once Defendants took over her bowling center, two employees

were hired to assist her and took duties away from her. (SAC ¶ 708(d)). She was also

given a new title and 46 distinct tasks that her district manager “opined would be

impossible for any one person to satisfactorily perform.” (SAC ¶ 708(e)). She was

terminated in August 2018 “citing mistakes that had been made by other persons but

had been attributed to her.” (SAC ¶ 708(g)). Although Synol appears to allege that her

termination was pretextual, she does not provide any other allegations, beyond

conclusory statements that she was replaced by someone outside the protected class,

(SAC ¶ 709), i.e. younger than 40 years old, that would make her age discrimination

claim plausible. See Bernstein, 2022 WL 1739609, at *2 (“Bernstein’s allegation that he

was replaced by a ‘younger’ teacher is not enough here to raise an inference of age

discrimination, especially because Bernstein again fails to allege his replacement’s age

or allege facts that would allow us to reasonably infer that his replacement was

‘[ ]significantly younger’ than him.”) (citation omitted); Munoz–Nagel v. Guess, Inc., No.

12-CV-1312, 2013 WL 1809772, at *7 (S.D.N.Y. Apr. 30, 2013) (finding an ADEA claim

insufficiently pled where the plaintiff only alleged that younger applicants was chosen

over her, with no indication of their age). Synol’s claim is, therefore, dismissed. See,

e.g., Adams v. New York State Educ. Dep’t, 752 F. Supp. 2d 420, 465–66 (S.D.N.Y. 2010)

(adopting report and recommendation) (dismissing ADEA claim where plaintiffs

“merely allege[d] that [they were] over 40 years of age and were replaced by younger

teachers”); Chui v. Publicis Groupe S.A., No. 24-CV-6767, 2025 WL 2711197, at *4

(S.D.N.Y. Sep. 23, 2025) (dismissing a claim where plaintiff failed to allege that the

employer “gave more favorable treatment to similarly situated younger employees, or

replaced him with a younger employee after he was fired”).

Similarly, Boniol alleges that he was unlawfully discharged by the Defendants on

September 1, 2016, when he was 48 years old. (SAC ¶ 225). While he was general

manager “revenues increased in the bowling centers.” (SAC ¶¶ 225(e–f)). He received

“positive annual performance reviews and never once was the subject of a disciplinary

incident or write-up.” (SAC ¶ 225(h)). After CEO Tom Shannon visited his bowling

center, his “employment was terminated without reason.” (SAC ¶ 225(i)). He alleges

that he was replaced by a person outside of the protected class. (SAC ¶ 226). Boniol

has failed to make any age-based allegations beyond a conclusory statement that he was

replaced by someone outside of the protected class. Boniol’s claim is, therefore,

dismissed. See supra; Bernstein, 2022 WL 1739609, at *2.

Parlette alleges that she was unlawfully terminated by the Defendants on

November 23, 2015, when she was 59 years old. (SAC ¶¶ 578(m), 581). She was

terminated for her alleged “mismanagement” of her center when an audit, conducted in

her absence, revealed that three individuals had violated a policy under her

supervision. (SAC ¶¶ 578(c–d); SAC Ex. 51, Dkt. Not 47-51 at 2). These individuals

advised the auditors that she “was not aware of the infractions, nor would [she]

approve [of] them.” (SAC ¶ 578(e)). She had never been the subject of a disciplinary

incident in the 36 years she worked for that center, (SAC ¶ 578(b)), and that after her

termination several colleagues sought her advice on managing bowling centers, (SAC

¶ 578(k)). Despite allegations of her prior good performance, Parlette similarly fails to

make any age-based allegations beyond a conclusory statement that she was “replaced

by a person outside of the protected class,” (SAC ¶ 579), and general assertions that

younger employees were hired by the center, (SAC ¶¶ 578(f),(l); SAC Ex. 51, Dkt. Not

47-51 at 2). Parlette’s claim is, therefore, dismissed.

Lastly, McBride alleges that she was constructively terminated by Defendants on

May 13, 2016, when she was 67 years old. (SAC ¶ 508). She was employed by

Defendants as a general manager as “a means to use her to terminate older employees

and mask that such decisions were coming from a much older, senior employee.” (SAC

¶ 508(a)). She resisted the orders of her district manager to terminate older employees

or employees “not fitting the new youthful image the defendants desired[.]” (SAC

¶ 508(b)). She was threatened and verbally abused in front of her co-workers for

refusing to comply which resulted in her constructive termination. (SAC ¶¶ 508(c–g),

514). She alleges that but for her age, she would not have been discharged and that

Defendants hired younger employees into positions similar to hers after her

employment ended. (SAC ¶¶ 508(i), 509).10 The EEOC issued a Determination finding

that Defendants had “created an objectively intolerable working environment because

of age that caused McBride’s resignation and that she was subject to discriminatory

treatment due to her age.” (SAC ¶ 510). This is simply a conclusory finding, that does

not push the claim over the plausibility line. Without any allegations connecting

discipline or poor evaluations to animus based on age, “such allegations of discipline

and negative evaluations are insufficient to raise an inference of discrimination.”

10 Although this might have been framed as a retaliation claim, that is not what is

alleged in the SAC.

Bernstein, 2022 WL 1739609 at *2. Therefore, McBride has failed to plead a claim for age

discrimination.

For these reasons, the Court finds that Plaintiffs Weimer, Reese, Kelly, Gaskey,

Nilsen, Matthew Schneider, Tracy Schneider, and Tanase have sufficiently pled facts for

their ADEA claims that withstand dismissal. However, Plaintiffs Synol, Boniol,

Parlette, and McBride have failed to do so, and their claims are dismissed with

prejudice.

II. Capacity to Sue

Defendants allege that five Plaintiffs who pre-deceased this lawsuit are

improperly named as parties, and their claims should be dismissed. (Defs.’ Mot. to

Dismiss at 4). Of these Plaintiffs, only Marino’s claim is not time-barred. See supra

Table 1 (indicating that Tuttle, Waite, Bozzo, and Serignano filed EEOC Charges more

than 300 days after termination.).

Rule 25 provides that “[i]f a party dies and the claim is not extinguished, the

court may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). If a motion

for substitution “is not made within 90 days after service of a statement noting the

death, the action by or against the decedent must be dismissed.” Id. Identification of a

decedent’s successor is not necessary to start the ninety-day clock for substitution.

Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 469–70 (2d Cir. 1998); Kotler v. Jubert, 986 F.3d

147, 153 (2d Cir. 2021) (“We reject[] the notion that a notice of death cannot be filed until

after a representative for the decedent’s estate has been appointed[.]”).

Plaintiffs’ counsel noted on the record on October 31, 2024, that four unnamed

Plaintiffs were deceased. (Pls.’ Opp’n to Defs.’ Mot. to Stay Disc., Dkt. No. 33 ¶ 6).

Defendants then raised this issue in their November 18, 2024, pre-motion conference

letter. (Defs.’ PMC Req., Dkt. No. 37 at 3). In their response, Plaintiffs’ counsel

identified Marino as among the deceased and asserted they had been retained by the

respective Estates and would amend the complaint to properly name the successors.

(Pls.’ Opp’n to Defs.’ PMC Req. dated Nov. 20, 2024, Dkt. No. 41 at 3). No such

amendment was made. (See SAC ¶ 40).

Here, because Plaintiffs’ counsel themselves noted Marino’s death on the record

on November 20, 2024, at the latest, the 90-day period for substitution has long since

elapsed. See, e.g., Alexis v. Vill. of Hempstead Police Dep’t, No. 24-CV-4666, 2025 WL

2625039, at *1 (E.D.N.Y. Sep. 11, 2025) (granting dismissal where more than 90 days had

passed since counsel noted his client’s death on the record). Plaintiffs argue that such

failure to join the estate as a party does not bar the suit “given the clear federal

preference for resolving disputes on the merits.” (Pls.’ Opp’n at 26). But such general

preference for deciding claims on the merits cannot overcome Plaintiffs’ violation of

Rule 25. And given the long time since the indication of death without a motion for

substitution being made, there is no longer any uncertainty about a potential substitute

or successor—there is none. Therefore, the Court dismisses Marino’s claim with

prejudice. See, e.g., Mulvey v. Sonnenschein Nath & Rosenthal LLP, No. 08-CV-1120, 2011

WL 5191320, at *2 (E.D.N.Y. Oct. 31, 2011) (dismissing with prejudice where plaintiff

failed to comply with the time period specified by Rule 25); Nicosia v. United States, No.

11-CV-5069, 2014 WL 2957496, at *3–*4 (E.D.N.Y. July 1, 2014) (same).

CONCLUSION

For the reasons discussed above, the Defendants’ motion to dismiss is granted in

part and denied in part. Defendants’ motion is granted as to the claims of the 63

Plaintiffs who are time-barred, the four Plaintiffs who failed to state a claim, and the

now deceased Plaintiff Marino for failure to make a timely substitution under Rule 25.

The time-barred claims cannot be cured by amendment, and so they are dismissed with

prejudice. For the four Plaintiffs who failed to state an ADEA claim—namely, Synol,

Boniol, Parlette, and McBride—their claims are dismissed without leave to amend and

with prejudice, because Plaintiffs have already amended their complaint two prior

times. See Sprague v. Salisbury Bank & Tr. Co., 969 F.3d 95, 101 (2d Cir. 2020) (“’Repeated

failure to cure deficiencies by amendments previously allowed’ is a valid reason to

deny leave to amend.”) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). And for

Plaintiff Marino, dismissal for failure to substitute is typically a with prejudice

dismissal, see Mulvey, 2011 WL 5191320, at *1, and that is the result that follows here.

Defendants’ motion is denied as to the eight Plaintiffs who have sufficiently pled their

claim, namely: Weimer, Reese, Kelly, Gaskey, Nilsen, Matthew Schneider, Tracy

Schneider, and Tanase.

SO ORDERED.

/s/ Sanket J. Bulsara

SANKET J. BULSARA

United States District Judge

Date: November 10, 2025

Central Islip, New York