EIDINGER v. PRIMMA LLC (2022)

OPINION & ORDER

I. Introduction

Plaintiff Mark Eidinger asserts claims against defendant PRIMMA, LLC under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., after PRIMMA terminated plaintiff's employment, as part of a reduction in force (“RIF”). Plaintiff alleges that his termination was the result of discrimination because of his age and that the RIF had a disparate impact on older workers. PRIMMA now moves for summary judgment, arguing that plaintiff has failed to establish that his age was a but-for cause of his termination or that the RIF had a disparate impact on older workers. For the reasons set forth below, the motion is granted.

II. Facts

Unless otherwise noted, the following facts are undisputed.

A. PRIMMA

PRIMMA, formerly Administrators for the Professions, Inc. (“AFP”), provides comprehensive professional liability products and risk management support to physicians and healthcare professionals. PRIMMA also provides insurance coverage for a wide variety of healthcare facilities, including nursing homes, hospitals, clinics, medical schools, and colleges. PRIMMA acquired AFP in July 2016.

Around January 30, 2006, AFP hired plaintiff as a Help Desk Technician, Level II, in the Information Technology (“IT”) department. Plaintiff remained in that position throughout the duration of his employment with AFP and PRIMMA.

On April 15, 2013, AFP hired Michael Chang, also as a Help Desk Technician, Level II.

B. Annual Performance Evaluations

AFP and PRIMMA conducted annual performance reviews. Throughout the IT department, all employees were evaluated in the same way. In conducting annual reviews, employees were given numerical scores which ranged from 1 to 5, across 15 different categories. A score of 1 indicated “unsatisfactory,” 2 “improvement needed,” 3 “meets expectations,” 4 “exceeds expectations, and 5 “outstanding.” Each category was also given a certain weight. The score for each category was multiplied by its weight. For example, if an employee scored a 2 in the “problem analysis” category, which has a weight of 3, the employee's score for that category was 6. The employee's total score across all categories was divided by the total weight across all categories to reach the employee's overall level of performance for a particular year. An evaluator could write commentary in each category, and the employee also conducted a self-assessment.

C. Plaintiff and Mr. Chang's Annual Performance Evaluations

Between 2007 and 2009, Department Manager Gabe Ambrosino and Supervisor Lawrence Timmins prepared plaintiff's performance evaluations. Plaintiff scored as low as 2.74 and as high as 3.3 in those years. In written commentary, Mr. Ambrosino identified several deficiencies in plaintiff's performance, including his quality of work, oral communications, and planning and organization. Due to the severity of plaintiff's performance deficiencies, on April 7, 2008, Mr. Ambrosino recommended that plaintiff be placed on a 3-month “adjustment period.” Def.’s Ex. J. In 2010, plaintiff began reporting to Help Desk Manager Marc Dornheim. He did so until Mr. Dornheim's departure from the company around 2017. In annual reviews prepared by Mr. Dornheim, plaintiff scored as low as 3.07 and as high as 3.67. In his last performance review before the RIF, plaintiff scored a 3.49. In written commentary, Mr. Dornheim identified performance deficiencies in the same categories documented by Mr. Ambrosino.

Mr. Dornheim, likewise, supervised Mr. Chang and prepared Mr. Chang's annual performance reviews from the time of Mr. Chang's hire in 2013 until 2017. From the outset, Mr. Dornheim was impressed with Mr. Chang's performance. In his first performance evaluation, Mr. Dornheim submitted a supplementary letter to the human resources department, praising Mr. Chang's work. Between 2013 and 2017, Mr. Chang consistently received an overall performance score above 4, and in his last performance review before the RIF, Mr. Chang received an almost perfect overall score of 4.95. Prior to Mr. Dornheim's departure in 2017, Mr. Dornheim “highly recommend[ed]” Mr. Chang for a promotion, in a letter to HR. Def.’s Ex. L, at 29. He stated, “I can't say enough positive with regard to [Mr. Chang's] character, attitude, work ethic and people skills ․ the company as a whole would suffer if he was to move on to another company.” Id.

After Mr. Dornheim left the company, plaintiff and Mr. Chang reported to Vice President of Information Technology Arthur Bosch.

D. The RIF

In late 2017, PRIMMA was experiencing financial difficulties. The executive team instructed Mr. Bosch to review the IT department and determine which employees should be laid off as part of a RIF.¹ The goal was to make the department operate more efficiently. Mr. Bosch assessed the IT department to determine strong performers and any overlap between job functions within the department. Mr. Bosch, in part, relied on employees’ annual performance evaluations in assessing their job performance.

In total, PRIMMA determined that 16 out of 28 employees in the IT department, including plaintiff, who was 66 years old at the time, would be terminated, as part of a RIF, in January 2018. PRIMMA referred to this group of 28 employees as plaintiff's “decisional unit.” Mr. Chang, who was 39 years old at the time, was not terminated. He was promoted to Help Desk Level III, and the Help Desk Level II position was eliminated entirely.²

PRIMMA offered plaintiff severance, along with a standard release agreement. The release agreement provided, “Individuals were selected for layoff as part of this Program based on the following criteria: job elimination, skill set and/or performance.” Def.’s Ex. M, at 1.

Exhibit A to the release agreement contained the job titles and ages of the individuals selected for layoff in plaintiff's decisional unit. Their job titles and ages were as follows: Clerical Assistant, II, 68; Clerical Assistant, III, 72; File Clerk, Sr., 87; Senior Programmer, 80; Help Desk Technician Level II, 66; Senior Programmer, 56; Mail Clerk, 74; In House Surveyor, 64; Reviewers Assistant, 57; Assistant Director Survey Unit, 58; Clerical Assistant, II, 27; Document Prep Clerk, 26; Part-Time File Clerk, 73; Document Prep Clerk, 22; Vice President, IS, 49; and In-House Reviewer Level II, 69.³

Exhibit B to the release agreement contained the job titles and ages of the individuals who were not selected for layoff in plaintiff's decisional unit. Their job titles and ages were as follows: Help Desk Technician Level II, 39; Technical Project Lead Level 2, 58; Help Desk Technician Level III, 66; Sr. Systems Engineer, 66; Sr. Systems Administrator, 42; Administrative Coordinator, 59; Sr. Systems Administrator, 56; Software Development Manager, 62; Senior Programmer, 43; Technical Project Lead Level 2, 59, Assistant Vice President, IT, 59; and Vice President, IT, 60.

E. Statistics Exhibits

In his opposition, plaintiff relies on exhibits that he attached to the First Amended Complaint (the “Complaint”). The exhibits show the RIF's impact on employees aged 60 or older in plaintiff's decisional unit in the form of graphs, pie charts, and an “adverse impact report.”⁴ Exhibits 3 and 4 demonstrate that 9 out of 13 employees aged 60 or older were terminated, while 7 out of 15 employees aged 59 or younger were laid off. Based on these figures, exhibit 5 shows that 69.23% of employees aged 60 or older, as compared to 46.67% of employees aged 59 or younger were terminated. Exhibit 7 shows that the mean age for employees terminated was 59.25, in contrast to 55.75 for employees not laid off. Exhibit 8 shows that the mean age went from 57.75 before the RIF to 55.75 after the RIF in the decisional unit. Finally, exhibit 6 is an “adverse impact report,” which shows that employees aged 59 or younger were terminated at a rate that was 67% of the rate employees aged 60 or older were laid off.⁵

F. Procedural History

Plaintiff filed administrative complaints with the New York City Commission on Human Rights (“NYCCHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”). In PRIMMA's position statement to the NYCCHR, PRIMMA explained that plaintiff was terminated, and Mr. Chang was retained, after considering Mr. Chang's comparatively superior performance, as evidenced by their annual performance evaluations. Pl.’s Ex., at 4–5. After the NYCCHR and EEOC dismissed plaintiff's complaints, plaintiff filed the instant lawsuit in state court, and PRIMMA removed the action.

III. Standard of Review

A party is entitled to summary judgment only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of showing “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the burden is met, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes relating to material facts—i.e., “facts that might affect the outcome of the suit under the governing law”—may preclude the entry of summary judgment. Id. An issue of fact is “ ‘genuine’ ․ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505 (internal citations omitted).

In determining whether to grant summary judgment, the court must “construe the facts in the light most favorable to the non-moving party and ․ resolve all ambiguities and draw all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014). The Second Circuit “has repeatedly emphasized the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer's intent.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation mark omitted). Nevertheless, summary judgment is appropriately granted “if the evidence, viewed in the light most favorable to the party against whom it was entered, demonstrates that there are no genuine issues of material fact and that the judgment is warranted as a matter of law.” Delaney, 766 F.3d at 167.

IV. Discussion

A. ADEA Disparate Treatment

The ADEA provides, in relevant part, that, as to a person over the age of 40, “[i]t shall be unlawful for an employer ․ to discharge [the] individual ․ because of such individual's age.” 29 U.S.C. §§ 623(a)(1), 631(a). The ADEA, thus, gives rise to a claim that an individual was deliberately discriminated against because of his or her age, known as a disparate treatment claim. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993).

On this motion, the parties agree on the relevant framework. Plaintiff's disparate treatment claim is subject to the familiar burden shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Delaney, 766 F.3d at 167. “Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination.” Id. at 168. “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (quoting Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “Once this burden is met, the defendant must then articulate ‘some legitimate, nondiscriminatory reason’ for its action.” Delaney, 766 F.3d at 168 (internal quotation marks omitted). The defendant's burden is one of “production”—it must produce evidence, which provides “an explanation to rebut the prima facie case.” Bucalo, 691 F.3d at 128–29 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506–07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

When the employer meets its burden, “the presumption raised by the prima facie case is rebutted and drops from the case.” Id. at 129 (quoting St. Mary's, 509 U.S. at 507, 113 S.Ct. 2742). The “sole remaining issue [is] discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. At the final stage of the McDonnell Douglas framework, then, to defeat summary judgment, a plaintiff bringing an ADEA disparate treatment claim must show that the evidence, viewed in the light most favorable to him, “would permit a jury to find ․ that age was the ‘but-for’ cause of” his termination. Delaney, 766 F.3d at 168 (internal quotation marks omitted).⁶ “Proof that the defendant's explanation is unworthy of credence,” or is a pretext for discrimination, is a “form of circumstantial evidence that is probative of intentional discrimination.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097. However, “[i]t is not enough ․ to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.” St. Mary's, 509 U.S. at 519, 113 S.Ct. 2742.

The parties agree that PRIMMA has proffered a legitimate, non-discriminatory reason—a RIF, necessitated by financial circumstances—for plaintiff's termination. Delaney, 766 F.3d at 168. PRIMMA has also put forth evidence that, as compared to Mr. Chang, it terminated plaintiff because of his comparatively inferior performance. Because the parties agree that the RIF is a legitimate, non-discriminatory reason for plaintiff's termination, I will presume, without deciding, that plaintiff has made out his prima facie case, and proceed to determining whether plaintiff has shown that the evidence, viewed in the light most favorable to him, would permit a jury to find that age was the but-for cause of his termination. Plaintiff has not met his burden.

Plaintiff argues that the defendant's explanation for terminating him and retaining Mr. Chang, i.e., that he performed comparatively worse than Mr. Chang, is pretext for age discrimination. But plaintiff does not cite any evidence in the record from which a jury could conclude that plaintiff was, in fact, the better performer and thus infer that PRIMMA's stated reason for terminating him was untrue.

Instead, plaintiff seeks to establish that, by relying on the annual performance evaluations, the “RIF evaluation [process] was generally defective.” See Martinez v. N.Y.C. Transit Auth., 672 F. App'x 68, 70 (2d Cir. 2016). Plaintiff cites Mr. Bosch's testimony that he was not aware if PRIMMA ever had the 1-5 scale reviewed by an outside party, Mr. Bosch's interpretation that the performance reviews created an expectation that most employees will receive a 3 or 4 in each category, his belief that the “relationship” category, which scored an employee's “relationship” with the supervisor, could be scored, like all the other categories, on a 1-5 scale, his testimony that a 4 was “significantly better” than a 2, and his conflicting testimony about who was responsible for assigning weights to each category.⁷ See Bosch Dep. 32:19–22, 33:6–7, 36:20–21, 37:15–23, 39:7–18. Plaintiff also notes that Mr. Bosch was not aware whether the RIF was reviewed to determine if it would have a disproportionate impact on older employees. See id. 31:10–16.

These “general objections to the RIF evaluation process, without more, do not establish discriminatory intent.” Martinez, 672 F. App'x at 70. Employers retain substantial discretion to choose the criteria that they will use to evaluate employees as part of a RIF, and courts “do not sit as a super-personnel department that reexamines an entity's business decisions.” Id.; Delaney, 766 F.3d at 169.

Plaintiff also attempts to show that PRIMMA's reason for terminating him shifted over time and, thus, is pretextual. Plaintiff compares the severance agreement, which stated that workers were selected for termination based on “job elimination, skill set and/or performance,” to PRIMMA's NYCCHR position statement, which took the position that his performance, as compared to Mr. Chang's, was the reason that plaintiff was terminated as part of the RIF. It is true that a defendant's shifting explanations can be evidence of pretext. See McEvoy v. Fairfield Univ., 844 F. App'x 420, 421–22 (2d Cir. 2021). For example, in Carlton v. Mystic Transportation, Inc., 202 F.3d 129 (2d Cir. 2000), the defendant represented to the EEOC that the plaintiff “was let go for economic reasons” and “the issue of performance wasn't addressed.” Id. at 137. But in interrogatory responses and depositions taken for the district court litigation, stated that plaintiff “was fired for poor job performance.” Id.

To constitute evidence of pretext, however, a defendant must, in fact, make materially inconsistent statements. See McEvoy, 844 F. App'x at 422; Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d 5, 31 (E.D.N.Y. 2015). Here, no reasonable juror could conclude that defendant's statements were shifting and inconsistent. In the release agreement, PRIMMA stated that “[i]ndividuals”—not plaintiff in particular—were selected for layoff based on “job elimination, skill set, and/or performance.” Def.’s Ex. M, at 1 (emphasis added). The agreement makes no representation that all three criteria were considered for each employee subject to the RIF. Instead, it represents that PRIMMA considered at least one of the three criteria for each employee. In its position statement to the NYCCHR, PRIMMA explained, consistent with its statement in the release agreement, that Mr. Chang was retained, instead of plaintiff, because of his comparatively superior performance. PRIMMA takes the same position in this litigation.

Plaintiff points to his and Mr. Chang's ages—66 and 39, respectively—at the time of the RIF, but this fact also does not raise a genuine issue as to whether PRIMMA intentionally discriminated against plaintiff because of his age. PRIMMA has proffered evidence that Mr. Chang was retained because of Mr. Chang's comparatively superior performance. Mr. Chang scored far better than plaintiff in their annual performance evaluations, including a near perfect score the year before the RIF. In addition, while plaintiff, at one time during his employment, was placed on a 3-month adjustment period, Mr. Dornheim wrote two supplementary letters to HR, praising Mr. Chang's performance. In the second letter, in 2017, Mr. Dornheim recommended Mr. Chang for promotion. Merely because a younger employee was retained while plaintiff was terminated, as part of a RIF, does not raise a genuine issue of fact that the but-for cause of plaintiff's termination was his age. See Martinez, 672 F. App'x at 70–71 (noting that work redistribution among younger, existing employees, as part of a RIF, does not raise an inference of discrimination); Delaney, 766 F.3d at 169; Phillips v. Centrix Inc., 354 F. App'x 527, 529 (2d Cir. 2009).

Finally, plaintiff cites the statistical evidence that he attached to the Complaint regarding the RIF's impact on workers aged 60 and older. He also notes that the RIF terminated 8 out of 10 employees aged 66 and older and all 5 employees aged 70 and older in his decisional unit. A plaintiff may present statistical findings as circumstantial evidence of age discrimination. See Stratton v. Dep't for the Aging, 132 F.3d 869, 876–77 (2d Cir. 1997). But, the Second Circuit has repeatedly cautioned that statistical evidence in ADEA disparate treatment cases has little to no probative value on the ultimate issue of discriminatory intent where the plaintiff's “statistical analyses fail to account for other possible causes for the fact that older ․ workers were more likely to be terminated.” Smith v. Xerox Corp., 196 F.3d 358, 371 (2d Cir. 1999), overruled on other grounds by Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006); see Benson v. Fam. Dollar Operations, Inc., 755 F. App'x 52, 55–56 (2d Cir. 2018); Phillips, 354 F. App'x at 529; Pleau v. Centrix, Inc., 343 F. App'x 685, 688 (2d Cir. 2009); Hollander v. Am. Cyanamid Co., 172 F.3d 192, 203 (2d Cir. 1999), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Without accounting for other possible causes, statistics may show a relationship between an employer's decisions and age but are “not probative of but-for causation.” Phillips, 354 F. App'x at 529.

Plaintiff's statistical evidence fails to account for other possible causes. While plaintiff draws inferences from the ages of individuals who were subject to the RIF in plaintiff's decisional unit, the record contains little evidence about any employee other than plaintiff and Mr. Chang. There is no evidence in the record, for example, about the performance evaluations of the other employees. Though exhibit A and exhibit B to the release agreement show their job titles, the record lacks evidence about the comparative importance of, or skill sets required for, their jobs, or whether they were supervised and evaluated by the same supervisor as plaintiff and Mr. Chang. Therefore, plaintiff's statistical evidence may show a relationship between the RIF and age, but it is not probative of whether age was the but-for cause of plaintiff's termination.

In sum, having considered the record, there is simply insufficient evidence for a reasonable jury to conclude that age was the but-for cause of plaintiff's termination. For these reasons, summary judgment is granted as to plaintiff's ADEA disparate treatment claim.

B. ADEA Disparate Impact

The ADEA also provides that “[i]t shall be unlawful for an employer ․ to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age.” 29 U.S.C. § 623(a)(2). The ADEA, thus, gives rise to disparate impact claims, which involve “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another.” Smith v. City of Jackson, 544 U.S. 228, 239–40, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005).

To establish an ADEA disparate impact claim, a plaintiff is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Id. at 241, 125 S.Ct. 1536. It “is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact.” Id. After specifying a specific employment practice, plaintiff “must identify the correct population for analysis,” and then present statistical evidence showing a “sufficiently substantial” age-based disparity. Xerox Corp., 196 F.3d at 365, 368.

Here, the employment practice that plaintiff identifies is the RIF and, citing the Complaint's exhibits, he argues that he has demonstrated “through statistical analysis that Defendant's RIF disproportionately terminated” employees over the age of 60 as compared to workers younger than 60 years of age in plaintiff's decisional unit. Pl.’s Opp. 12. As an initial matter, it is less than clear that the RIF, generally, qualifies as a “specific employment practice.” See City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536 (identifying employer's new pay plan, without “any specific test, requirement, or practice within the pay plan,” does not establish a claim for disparate impact under the ADEA); Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364, 1370 (2d Cir. 1989) (questioning whether pointing to disparities that resulted from the “hiring process” suffices). Defendant, however, does not address this point, arguing only that plaintiff has not identified the correct population for analysis. Plaintiff seeks to bring a so-called “sub-group” disparate impact claim—by identifying a disparate impact on workers aged 60 and older, rather than on the entire ADEA-protected group of workers aged 40 and over—which, PRIMMA argues, is not cognizable in the Second Circuit. Because I agree with defendant, I do not address whether plaintiff has created a genuine issue of material fact on the other elements of his disparate impact claim.

In Lowe v. Commack Union Free School District, 886 F.2d 1364 (2d Cir. 1989), the Second Circuit held that a plaintiff must establish a disparate impact “on the entire protected group, i.e., workers aged 40 and over.” Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (citing Lowe, 886 F.2d at 1372–73). It rejected an approach that would have allowed the plaintiff to recover by showing a disparate impact on a “sub-group” of individuals within the protected group. Lowe, 886 F.2d at 1373. The Second Circuit reasoned that the Supreme Court, in disparate impact cases, had focused “on the adverse effect of the challenged practice on the protected group of which the plaintiff is a member,” which, under the ADEA, is individuals aged 40 and over. Id. (citing Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). It also explained that a sub-group approach would allow any plaintiff to “take his or her own age as the lower end of a ‘sub-protected group’ and argue that said ‘sub-group’ is disparately impacted.” Id. The Second Circuit adhered to Lowe in Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir. 1997), where it rejected a claim based on a disparate impact on workers aged 55 and over.

Plaintiff acknowledges Lowe and Criley but urges me to disregard them. He argues that disallowing sub-group claims is contrary to the Supreme Court's more recent decision in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004). I am, of course, bound by Second Circuit authority, unless and until it is, explicitly, or implicitly, overruled by an intervening Supreme Court, or an en banc Second Circuit, decision. In re BioScrip, Inc. Sec. Litig., 273 F. Supp. 3d 474, 491 (S.D.N.Y. 2017), aff'd sub nom. Fresno Cnty. Emps. Ret. Ass'n v. Isaacson/Weaver Fam. Tr., 925 F.3d 63 (2d Cir. 2019). General Dynamics, which held that the ADEA does not bar an employer from favoring older over younger employees when both are protected by the ADEA, neither expressly, nor implicitly, overruled Criley or Lowe.⁸

Having failed to create a genuine issue of material fact as to whether the RIF resulted in a disparate impact on the entire ADEA-protected group of workers aged 40 and over, as required, summary judgment is granted on plaintiff's disparate impact claim.⁹

C. State Law Claims

Plaintiff also brings disparate treatment and disparate impact claims under the NYSHRL. Having dismissed plaintiff's ADEA claims, I decline to exercise supplemental jurisdiction over plaintiff's state law claims. See 28 U.S.C. § 1367(c).

V. Conclusion

For the reasons set forth above, PRIMMA's motion for summary judgment is granted as to plaintiff's ADEA claims, and those claims are dismissed with prejudice. Plaintiff's NYSHRL claims are dismissed without prejudice. The Clerk of Court is directed to enter judgment accordingly.

SO ORDERED.

FOOTNOTES

1.   The IT department was not the only department at PRIMMA subject to a RIF.

2.   The Rule 56.1 statements reflect a dispute about how many Help Desk Level III employees were employed by PRIMMA following the RIF. PRIMMA takes the position that the only Help Desk Level III employee whom it employed after the RIF was Mr. Chang. Plaintiff takes the position that, in addition to Mr. Chang, PRIMMA employed one other Help Desk Level III employee. Since neither party argues that this issue has any legal significance for plaintiff's claims, I have considered any dispute with respect to this fact to be immaterial.

3.   The Rule 56.1 statements reflect a dispute relating to the number of employees who were terminated as part of the RIF in the IT department. PRIMMA's Rule 56.1 statement initially stated that all 16 employees who were terminated as part of the RIF and listed in exhibit A were in the IT department. See Def.’s Statement Pursuant to Local Civil Rule 56.1 ¶ 38. Plaintiff did not dispute this statement. PRIMMA filed a Reply Rule 56.1 statement, however, which took a different position, indicating that it apparently does dispute that all employees who were terminated as part of the RIF and listed in exhibit A, were in the IT department. As neither party argues that whether the employees listed in exhibit A were or were not in the IT department has any legal significance, I have also considered any dispute with respect to this fact to be immaterial.

4.   Certain exhibits purport to show the RIF's impact on employees aged 61 or older; however, my review of exhibits A and B to the release agreement, on which the Complaint exhibits are based, shows that the statistics are, in fact, based on the grouping of employees into groups aged 60 or older and 59 or younger, rather than 61 or older and 60 or younger.

5.   The arithmetical calculations on which exhibits 3–5 and 7–8 are based appear to have been made by plaintiff's attorney. A website, it appears, was used to calculate the figures shown in exhibit 6. PRIMMA does not dispute the accuracy of the figures shown.

6.   The Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), “eliminat[ed] the mixed-motive analysis that circuit courts had brought into the ADEA from Title VII cases,” making clear that the ADEA requires a plaintiff to prove that age is the “ ‘but-for’ cause of the challenged adverse employment action and not just a contributing or motivating factor.” Gorzynski, 596 F.3d at 106. “The condition that a plaintiff's age must be the ‘but for’ cause of the adverse employment action is not equivalent to a requirement that age was the employers only consideration, but rather that the adverse employment action[ ] would not have occurred without it.” Delaney, 766 F.3d at 169 (alteration in original).

7.   Defendant argues that plaintiff's opposition brief “mischaracterize[es]” Mr. Bosch's testimony, Def.’s Reply 5, when arguing that Mr. Bosch testified that the scoring of the annual performance evaluations was “largely subjective and not uniform,” Pl.’s Opp. 9 (citing Bosch Dep. 31:20–32:20). I agree. I have considered Mr. Bosch's testimony as transcribed in Mr. Bosch's deposition transcript, rather than plaintiff's characterization of his testimony.

8.   Plaintiff also urges me to disregard Lowe and Criley because they are contrary to the Supreme Court's decisions Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), and O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), and the Third Circuit's decision in Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 2017). But neither Teal, nor O'Connor, were intervening decisions. Lowe expressly addressed Teal, finding that it did not “compel[ ] a different result.” Lowe, 886 F.2d at 1373–74. Though it did not discuss the decision, it is apparent that the Second Circuit in Criley, by adhering to Lowe after O'Connor was decided, did not find that O'Connor overruled Lowe. Finally, while the Third Circuit in Karlo disagreed with the Second Circuit, and held that ADEA disparate impact “sub-group” claims are cognizable, I am bound by decisions of the Second Circuit, not the Third Circuit.

9.   I do not reach PRIMMA's argument that plaintiff's ADEA claims were untimely, as the motion is granted on other grounds.

GERSHON, United States District Judge: