Distefano

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

GUY L. DISTEFANO,

Plaintiff, 6:25-cv-00358 (BKS/TWD)

v.

THE MARY IMOGENE BASSETT HOSPITAL d/b/a

BASSETT MEDICAL CENTER,

Defendant.

Appearances:

For Plaintiff:

Shawn M. Alfano

Buttafuoco & Associates, PLLC

114 Woodbury Road

Woodbury, NY 11797

For Defendant:

Christopher J. Stevens

Sarah N. Clancy

Nixon Peabody LLP

677 Broadway, 10th Floor

Albany, NY 12207

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Guy L. DiStefano brings this action against Defendant Mary Imogene Bassett

Hospital d/b/a Bassett Medical Center. (Dkt. No. 2). Plaintiff alleges violations of the Age

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

New York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”). (Id.). Presently

before the Court is Defendant’s motion to dismiss for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6). (Dkt. No. 6). The motion is fully briefed. (See Dkt. Nos. 6-1,

11-1, 12). For the reasons that follow, Defendant’s motion to dismiss is granted in its entirety.

II. FACTS1

Plaintiff Guy DiStefano is a former employee of Defendant Bassett Medical Center. (Dkt.

No. 2, ¶ 1). Plaintiff “had been employed with Defendant [ ] since on or about February 28,

2022.” (Id. ¶ 2). Plaintiff “has over twenty-five years of experience in Healthcare and is a

licensed C.P.A.” (Id. ¶ 6). “He has held senior leadership positions in the healthcare industry

including the position of Market CFO over four hospitals in Massachusetts.” (Id.). Plaintiff was a

“loyal and dedicated employee for over two years,” who “always provided proper directions in

reference to the management of his workload and fellow employees.” (Id. ¶ 4).

“Less than one year” after Defendant hired Plaintiff, Defendant asked Plaintiff “to take

on the position of interim CFO.” (Id. ¶ 7). “Plaintiff performed the extra responsibilities

admirably for two and a half months[.]” (Id.). “On or about March 27, 2023, the permanent CFO,

Jeff Morgan, was hired.” (Id. ¶ 8). “Mr. Morgan was younger than Plaintiff[,]” and “seemed to

take exception to the age and experience of Plaintiff.” (Id.). “During the time Plaintiff reported to

Mr. Morgan,” Mr. Morgan often blamed Plaintiff “for other employees’ mistakes[.]” (Id.).

“Plaintiff was targeted with these false accusations because of his age.” (Id.).

On April 26, 2024, Mr. Morgan terminated Plaintiff “from his position as a Vice President

of Financial Operations” and “replaced him with a worker substantially younger than Plaintiff.”

(Id. ¶¶ 9, 12). “The reason given for this termination were [sic] purely pretextual.” (Id.). Plaintiff

was 60 years old at the time he was terminated, and “[e]very job candidate and interim employee

1 These facts are drawn from the Complaint, (Dkt. No. 2), and the attached exhibit, (Dkt. No. 1-2). The Court

assumes the truth of, and draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of

N.Y., 952 F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions asserted therein, see

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

brought in to fill his position has been at least twenty years younger than the Plaintiff.” (Id. ¶ 5).

Mr. Morgan “attempted to twice hire someone over 25 years younger.” (Id. ¶ 9). “Defendant had

not been able to hire for the position and have [sic] used a temporary hire who is approximately

15 years younger and with less experience.” (Id.). “Upon information and belief, another Vice

President in Marketing was also terminated and replaced by a younger worker and said

Marketing Vice President brought charges of age discrimination against Defendant[.]” (Id. ¶ 11).

“Defendant has a progressive discipline system as part of their employment policy.” (Id ¶

10). “The policy requires that an underperforming employee be told in writing about any job

performance issue[,]” and “a written performance plan is completed.” (Id.). “Plaintiff never

received any write-up or performance employment plan during his entire tenure with

Defendant[.]” (Id.).

Plaintiff “filed a charge of discrimination with the EEOC and other state agencies and has

obtained a right to sue.” (Id. ¶ 21; see also Dkt. No. 1-2).

III. STANDARD

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a

complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations

sufficient “to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S.

at 555). A court must accept as true all factual allegations in the complaint and draw all

reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.

2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).

However, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

IV. DISCUSSION

A. Materials Outside the Complaint

As a preliminary matter, Plaintiff’s opposition brief relies on several additional factual

allegations, including the parties’ previous submissions to the EEOC. (Dkt. Nos. 11-1, at 5-6; 11-

2; 11-3). Plaintiff apparently concedes that these allegations were not part of the Complaint,

requesting that “to the extent that any of the factual arguments contained [in his opposition brief]

are deemed necessary to the pleadings, [P]laintiff seeks leave of Court to amend or supplement

the Complaint accordingly.” (Dkt. No. 11-2, at 7). Defendant asserts that Plaintiff cannot rely “on

facts or documents that were not pled, incorporated, or referenced in the Complaint.” (See Dkt.

No. 12, at 5). The Court agrees.

On a 12(b)(6) motion, courts may consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by

reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not

attached or incorporated by reference, (3) documents or information contained in

defendant's motion papers if plaintiff has knowledge or possession of the material and

relied on it in framing the complaint, (4) public disclosure documents required by law to

be, and that have been, filed with the Securities and Exchange Commission, and (5) facts

of which judicial notice may properly be taken under Rule 201 of the Federal Rules of

Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (citation omitted).

“[I]f material is not integral to or otherwise incorporated in the complaint, it may not be

considered unless the motion to dismiss is converted to a motion for summary judgment and all

parties are ‘given a reasonable opportunity to present all the material that is pertinent to the

motion.’” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016). Further, “[i]t is well-

settled that a plaintiff ‘cannot amend [their] complaint by asserting new facts or theories for the

first time in opposition to [a] motion to dismiss.” Peacock v. Suffolk Bus Corp., 100 F. Supp. 3d

225, 231 (E.D.N.Y. 2015) (quoting K.D. v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n.8

(S.D.N.Y. 2013). Therefore, the Court will not consider supplemental factual allegations

contained in Plaintiff’s opposition brief in deciding Defendant’s motion to dismiss.

B. Age Discrimination2

Defendant argues that Plaintiff’s claims under the ADEA and NYSHRL must be

dismissed, because the Complaint “contains nothing—aside from entirely speculative,

conclusory allegations—to support an inference that Plaintiff’s age was the but-for cause of [his]

termination.” (Dkt. No. 6-1, at 8). Plaintiff disagrees, arguing that Plaintiff’s burden is “not

onerous” at this stage of the litigation. (Dkt. No. 11-1, at 9 (citing Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981))). Plaintiff asserts that his allegation

that Defendant hired someone substantially younger is “sufficient evidence for prima facie age

discrimination.” (Id. at 12).

The ADEA makes it “unlawful for an employer . . . to discharge any individual . . .

because of such individual’s age.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 302 (2d

Cir. 2021) (quoting 29 U.S.C. § 623(a)). “Under the ADEA and NYSHRL, a prima facie case of

age discrimination consists of four elements: (1) the plaintiff's membership in a protected class;

(2) the plaintiff's qualification for a particular position of employment; (3) an adverse

employment action by the defendant employer; and (4) some minimal evidence suggesting an

inference that the employer acted with discriminatory motivation.” Lebowitz v. New York City

2 “[A]ge discrimination suits brought under the [NYSHRL] are subject to the same analysis as claims brought under

the ADEA.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citations omitted). As such, the

Court analyzes the sufficiency of Plaintiff’s ADEA and NYSHRL claims together.

Dep't of Educ., 407 F. Supp. 3d 158, 170 (E.D.N.Y. 2017) (citing Littlejohn v. City of New York,

795 F.3d 297, 307 (2d Cir. 2015)).

“To prevail on an ADEA age discrimination claim, it is not sufficient for a plaintiff to

show ‘that age was simply a motivating factor’ in the employer’s adverse action.” Lively, 6 F.4th

at 302-03 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)). “Instead, the

ADEA’s requirement that an employer took adverse action ‘because of’ age [requires] that age

was the ‘reason’ that the employer decided to act.” Id. at 303 (internal quotations omitted). To

establish age discrimination under the ADEA, therefore, “a plaintiff must prove that age was the

‘but-for’ cause of the employer’s adverse decision.” Id. (quoting Gross, 557 U.S. at 176).3

The Second Circuit has held that “an inference of discrimination [ ] arises when an

employer replaces a terminated or demoted employee with an individual outside the employee’s

protected class.” Littlejohn, 795 F.3d at 312–13. But “[b]ecause the ADEA prohibits

discrimination on the basis of age and not class membership, the fact that a replacement is

substantially younger than the plaintiff is a far more reliable indicator of age discrimination than

is the fact that the plaintiff was replaced by someone outside the protected class.” O’Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996); c.f. Lomonoco v. Saint Anne Inst., 768 F.

App’x 43, 44 (2d Cir. 2019); Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 507

(S.D.N.Y. 2010) (“In age discrimination suits, courts look to whether the replacement is

“substantially younger” than the plaintiff, not simply to whether the replacement was under

forty.”).

3 The Second Circuit has noted that the ‘but-for’ causation standard for discrimination claims “applies not only at

trial but at the pleading stage as well.” Id. (citing Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 589

U.S. 327, 332 (2020)).

“Generally, a plaintiff’s replacement by a significantly younger person is evidence of age

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

part on other grounds by Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010).

However, a conclusory allegation that the plaintiff was replaced by someone “younger” is not

enough, standing alone, to raise an inference of age discrimination. See Marcus v. Leviton Mfg.

Co., No. 15-cv-656, 2016 WL 74415, at *3, 2016 U.S. Dist. LEXIS 1085, at *9 (E.D.N.Y. Jan. 6,

2016) (dismissing ADEA and NYSHRL claims where plaintiff alleged that he was replaced by a

younger employee, but did not allege “information regarding the circumstances in which the new

employee was hired, the new employee's job responsibilities, the new employee’s age, and

whether the new employee [was] similarly situated to him”), aff’d, 661 F. App’x 29 (2d Cir.

2016) (“Without more, the mere fact that an older employee was replaced by a younger one does

not plausibly indicate discriminatory motive[.]”).

Here, Plaintiff has alleged that he was sixty years old at the time he was terminated, (see

Dkt. No. 2, ¶ 5), which makes him part of the ADEA’s protected group, see 29 U.S.C. § 631.

Plaintiff has also alleged that he has “over twenty-five years of experience in Healthcare and is a

licensed C.P.A.[,]” (Dkt. No. 2, ¶ 6), and Defendant does not appear to dispute (for the purposes

of this motion) that Plaintiff was qualified for his job, (see Dkt. No. 12, at 8 n.2 (noting that

Defendant’s brief “assumed, without conceding” that Plaintiff adequately alleged he was

qualified for the position)). Plaintiff’s termination is clearly an adverse employment action. See

Green v. Town of E. Haven, 952 F.3d 394, 404 (2d Cir. 2020). The only question, then, is whether

Plaintiff has plausibly alleged that his age was the “but-for” cause of his termination. See Gross,

557 U.S. at 176.

Plaintiff alleges that he was “targeted” by Mr. Morgan “because of his age.” (Dkt. No. 2,

¶ 8). In support of this assertion, Plaintiff alleges that Mr. Morgan “terminated Plaintiff and

replaced him with a worker substantially younger than Plaintiff.” (Id. ¶ 9). Plaintiff provides no

other information about his alleged replacement. Further, the Complaint does not clearly allege

that Plaintiff has actually been replaced: Plaintiff separately alleges that Defendants have “not

been able to fill” his position, and that Defendants “have used a temporary hire” instead. (See

Dkt. No. 2, ¶ 9).4 These inconsistent and conclusory allegations are insufficient to support an

inference of age-based discrimination. See Williams v. Victoria's Secret, No. 15-cv-4715, 2017

WL 1162908, at *8, 2017 U.S. Dist. LEXIS 45813, at *21 (S.D.N.Y. Mar. 28, 2017) (internal

quotations and citation omitted) (finding allegation that “upon information and belief” plaintiff

“was eventually replaced by someone under the age of 40” was “insufficient to create an

inference of discriminatory intent”) (collecting cases); see also Bernstein v. New York City Dep’t

of Educ., No. 21-2670, 2022 WL 1739609, at *2, 2022 U.S. App. LEXIS 15147, at *4 (2d Cir.

May 31, 2022) (summary order) (“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.”).

Plaintiff alleges that he “never received any write-up or performance employment plan

during his entire tenure with Defendant,” even though Defendant’s employment policy “requires

that an underperforming employee be told in writing about any job performance issue” and that a

“written performance employment plan” be completed. (Dkt. No. 2, ¶ 10). But Plaintiff does not

4 The Complaint is also internally inconsistent; Plaintiff alleges in one paragraph that “[e]very job candidate and

interim employee brought in to fill his position has been at least twenty years younger” than Plaintiff, but in another

paragraph, he alleges that the “temporary hire” filling his position is “approximately 15 years younger[.]” (Dkt. No.

2, at ¶¶ 5, 9).

allege that this policy applied to the positions he held—interim CFO and Vice President of

Financial Operations—or that this policy was regularly followed with respect to individuals in

those positions, or other facts from which the Court could plausibly infer that Defendant’s failure

to follow this policy was motivated by discriminatory animus. Nor does Plaintiff identify other

similarly situated employees outside of his protected group who received progressive discipline

in accordance with Defendant’s policy, while Plaintiff did not. See Watson v. Richmond Univ.

Med. Ctr., 408 F. Supp. 3d 249, 264 (E.D.N.Y. 2019) (“While a plaintiff can demonstrate

disparate treatment with proof that an employer treated a plaintiff less favorably than “similarly

situated” employees outside of her protected group, to succeed on such a claim, a plaintiff must,

in fact, identify such comparators.” (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65

(2d Cir. 1997))).

Finally, Plaintiff further alleges that, “[u]pon information and belief, another Vice

President in Marketing was also terminated and replaced by a younger worker and said

Marketing Vice President brought charges of age discrimination against Defendant[.]” (Dkt. No.

2, ¶ 11). However, Plaintiff does not allege the age of either of these individuals or any additional

facts about them that would support an inference of age discrimination. See Lively, 6 F.4th at

306.5 Considering all of the allegations in the light most favorable to Plaintiff, the Court finds

that he has failed to plausibly allege that his age was the “but-for” cause of his termination, and

the Court grants Defendants’ motion to dismiss Plaintiff’s age discrimination claims under the

ADEA and NYSHRL.

5 Defendants also correctly observe that Plaintiff was hired when he was already over the age of forty, and thus a

member of the ADEA’s protected class. (Dkt. No. 6-1, at 9-10). Some courts have found that, “[a]lthough the ADEA

does not necessarily foreclose an age-discrimination claim when a plaintiff was over forty years old when first hired,

this substantially weakens any inference of discrimination on Defendants’ part.” Spires v. MetLife Grp., Inc., No. 18-

cv-4464, 2019 WL 4464393, at *8 (S.D.N.Y. Sept. 18, 2019) (collecting cases). Other courts have not found this

argument persuasive. See Hall v. N. Bellmore Sch. Dist., 55 F. Supp. 3d 286, 298 n.14 (E.D.N.Y. 2014).

C. Hostile Work Environment6

Defendant seeks dismissal of Plaintiff’s hostile work environment claim, arguing that

Plaintiff has failed to allege “harassing or hostile conduct,” or that such conduct is linked to

“purported discriminatory animus” by Defendant. (Dkt. No. 6-1, at 11). Plaintiff disagrees,

pointing to his allegations that he was “blamed” for other employees’ mistakes and terminated

because of his age. (Dkt. No. 11-1, at 14).7

“An actionable discrimination claim based on hostile work environment under the ADEA

is one for which the workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently pervasive to alter the conditions of the victim's employment[.]” Kassner v. 2nd

Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (internal quotation marks and citation

omitted); accord. Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 41 (2d Cir. 2019). “To

establish a hostile work environment, plaintiffs must prove that the incidents were sufficiently

continuous and concerted to be considered pervasive.” Kassner, 496 F.3d at 241 (internal

quotation marks and citation omitted). “A plaintiff must also demonstrate that [they were]

subjected to the hostility because of [their] membership in a protected class.” Id. (citation

omitted); c.f. Matthews v. Rasa, No. 24-2499, 2025 WL 3687759, at *2; 2025 U.S. App. LEXIS

33164, at *4-5 (2d Cir. Dec. 19, 2025) (summary order).

Here, Plaintiff alleges that Mr. Morgan, who was younger than Plaintiff, “seemed to take

exception to the age and experience of Plaintiff,” and that “Plaintiff was often blamed by Mr.

Morgan for other employees’ mistakes[.]” (Dkt. No. 2, ¶ 8). But Plaintiff has not alleged facts

6 As Defendant points out, it is not clear from the Complaint whether Plaintiff “intends to assert a hostile work

environment under the ADEA or NYSHRL[.]” (See Dkt. No. 6-1, at 11). Plaintiff’s opposition brief appears to

clarify that his claim arises under the ADEA. (See Dkt. No. 11-1, at 14). In any event, “[t]he standards for evaluating

hostile work environment claims are identical under Title VII, the ADEA, and the NYSHRL.” Lebowitz, 407 F.

Supp. 3d at 181 (citations omitted).

7 Much of Plaintiff’s opposition brief on this point refers to materials outside of the Complaint, which the Court will

not consider on this motion. See discussion supra Section IV.A.

explaining his contention that Mr. Morgan “seemed to take exception” to Plaintiff’s age, nor does

he allege when or how often Mr. Morgan improperly “blamed” him for others’ mistakes. See

Wheeler v. Bank of New York Mellon, 256 F. Supp. 3d 205, 219 (N.D.N.Y. 2017) (dismissing

hostile work environment claim based on age where plaintiff did not “say when or how often

[certain] remarks were made, an omission that prevents the [c]ourt from assessing the plausibility

of a hostile work environment premised on the remarks” (collecting cases)). Further, Plaintiff

makes no factual allegations that demonstrate any purported workplace hostility related to his

age. See Mabry v. Neighborhood Def. Serv., 769 F. Supp. 2d 381, 396 (S.D.N.Y. 2011)

(“[I]solated incidents of workplace conflict unrelated to plaintiff's age are insufficient to state a

claim for hostile work environment under the ADEA.”). Therefore, Plaintiff’s hostile work

environment claim must be dismissed. See Jones v. New York City Dep't of Educ., 286 F. Supp.

3d 442, 450 (E.D.N.Y. 2018) (dismissing hostile work environment claim under the ADEA

where Plaintiff did not allege supervising principal “ever made an inappropriate comment about

age, much less created a workplace severely permeated with discriminatory intimidation,

ridicule, and insult”).

V. LEAVE TO AMEND

Under Federal Rule of Civil Procedure 15(a), absent certain circumstances not at play

here, a party may amend its pleading only with the opposing party's written consent or the court's

leave. See Fed. R. Civ. P. 15(a)(1)–(2). Rule 15(a)(2) requires that a court “freely give leave

when justice so requires.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007). But a court may, in its discretion, deny leave to amend “for good reason, including futility,

bad faith, undue delay, or undue prejudice to the opposing party.” MSP Recovery Claims, Series

LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (quoting Bensch v. Est. of Umar, 2 F.4th

70, 81 (2d Cir. 2021). A request to amend is futile where the problem with the claim is

“substantive” and “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000). Here, Plaintiff seeks leave to “amend or supplement the Complaint” to include factual

arguments raised in his opposition brief. (Dkt. No. 11-1, at 7). Because it is conceivable that the

Complaint's deficiencies could be fixed with better pleading, the Court grants Plaintiff's request

for leave to file an amended complaint.

VI. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendant’s motion to dismiss (Dkt. No. 6) is GRANTED, and the

complaint is DISMISSED without prejudice; and it is further

ORDERED that any amended complaint must be filed within thirty (30) days of the date

of this Order; and it is further

ORDERED that if Plaintiff does not file an amended complaint within thirty (30) days of

the date of this Order, this case will be closed without further order.

IT IS SO ORDERED.

Dated: January 26, 2026

Syracuse, New York

PADAL Ba Cowes

Brenda K. Sannes

Chief U.S. District Judge

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