HIRSCHBERG v. BANK OF AMERICA, N.A. (E.D.N.Y. 12-1-2010)

ion over the plaintiff's state and local law age discrimination claims). In order words, while courts within this circuit have decided "there is no reason to jettison the burden-shifting framework for NYSHRL . . . claims," no court has specifically addressed whether NYSHRL age discrimination plaintiffs must prove pretext by showing that "age was the `but for' cause of the challenged adverse employment action," as is required of ADEA plaintiffs post- Gross, or whether plaintiffs attempting to prove pretext in the context of an age claim under the NYSHRL must prove only that "the defendant's employment decision was more likely than not based in whole or in part on discrimination." Saenger, 706 F. Supp. 2d at 507 (internal quotation marks and citations omitted).

C.f. Weiss v. JPMorgan Chase Co., 2010 WL 114248, at *3-4 (S.D.N.Y. Jan. 13, 2010) ("[I]nstead of carving out a more restrictive causation standard for age discrimination claims under the [New York City Human Rights Law], its "because of" language should continue to be interpreted as requiring a plaintiff to prove only that age was "a motivating factor.").

This Court need not, however, make a determination as to which standard applies to age discrimination claims brought pursuant to the NYSHRL because, for the reasons set forth below, Plaintiff's claims fail under either standard. A reasonable jury could not conclude that age was a motivating factor in the Bank's decision to terminate Plaintiff's employment, and could certainly not conclude that age was the "but for" cause of that decision. See id. at 506.

II. Plaintiff Fails to Raise a Genuine Issue of Material Fact as to her Claim of Age Discrimination

A. Plaintiff's Prima Facie Case

For purposes of this motion, Defendant does not dispute that Plaintiff has established the first three elements of her prima facie case, viz. that she was a member of a protected class, that she was qualified for the Branch Manager position, and that she suffered an adverse employment

This protection extends to employees who are at least 40 years old. See 29 U.S.C. § 631(a).

action when she was terminated. Defendant does contend, however, that Plaintiff cannot prove that her employment was terminated under circumstances giving rise to an inference of discrimination.

A plaintiff may satisfy the fourth prong of her prima facie case by demonstrating "the ultimate filling of [her] position with an individual who is not a member of the protected class." Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001); see also Gorzynski, 596 F.3d at 107 (finding plaintiff established prima facie case when she was "over forty years old, undisputedly qualified for her position, was fired, and was then replaced by a woman in her twenties"). Here, after Plaintiff's termination the Branch Manager position was filled by Aneta Dowlatram, who was thirty-nine years old at the time — twelve years younger than Plaintiff. Accordingly, the Court finds that Plaintiff has established a prima facie case of age discrimination. See Mattera, 2010 WL 3785576 at *9 ("Because Chocheles was 12 years younger than plaintiff when plaintiff was fired and replaced by Chocheles, plaintiff has sufficiently raised an inference of discrimination."); Saenger, 706 F. Supp. 2d at 507-08 (finding fourth element established when plaintiff was replaced by an employee twelve years younger).

B. Defendant's Legitimate, Non-Discriminatory Reason

Once a plaintiff has established a prima facie case of discrimination, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions — a burden that is not particularly onerous.

Here, the Defendant maintains that Plaintiff's employment was terminated because she admitted "to cutting customer signatures in direct violation of the Bank's account opening policies and the Code of Ethics." (Def.'s Mem. at 8.) Plaintiff does not appear to dispute that this was the stated reason for her termination, although she denies that her conduct constituted either the falsification of a Bank document or a violation of Bank policy. ( See Pl.'s 56.1 ¶¶ 88, 97.) It is well-settled that Defendant's "burden at this stage is not to prove nondiscrimination." Mattera, 2010 WL 3785576 at *9. Rather, Defendant "must `introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Id. (quoting St. Mary's Honor Ctr., 509 U.S. at 509) (emphasis in the original). "Whether plaintiff can produce evidence casting doubt on [Defendant's] proffered reasons, and what the character of that evidence is, is taken [into] account only at the next stage of the analysis, namely whether [Defendant's] reason is a mere pretext for discrimination." Id. (citing Gorzynski, 596 F.3d at 107). Accordingly, Defendant's stated reason for the termination of Plaintiff's employment satisfies Defendant's burden at this stage. See, e.g., Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) ("An employer's dissatisfaction with even a qualified employee's performance may, of course, ultimately provide a legitimate, non-discriminatory reason for the employer's adverse action."). C. Plaintiff Cannot Present Sufficient Evidence to Demonstrate Defendant's Articulated Reason is a Pretext for Unlawful Discrimination

Once an employer has articulated a legitimate, non-discriminatory reason for its actions, the plaintiff then has the burden of showing that the stated reason was pretextual, and "may no longer simply rely on having made out a prima facie case." Gorzynski, 596 F.3d at 107. Plaintiff must "present sufficient evidence to permit a rational finder of fact to infer that Defendant's proffered [reason for terminating Plaintiff's employment was] a pretext and that Plaintiff's firing was either the result of age discrimination (under the ADEA), or `more likely than not based in whole or in part on [age] discrimination,' (under the NYSHRL . . . if [this] statute [is] so interpreted)." Saenger, 706 F. Supp. 2d at 508 (quoting Stern v. Trs. of Columbia Univ. in the City of N.Y., 131 F.3d 305, 312 (2d Cir. 1997)). Plaintiff has failed to meet her burden under either standard.

Plaintiff proffers several arguments why Defendant's stated reasons for her termination were pretextual: (1) there was no clear policy regarding opening accounts and/or prohibiting cutting and pasting signatures; (2) other employees allegedly cut and pasted signatures but were not terminated; (3) Volpicello allegedly "target[ed]" Plaintiff and other "older" Branch Managers; (4) the Bank failed to use its progressive disciplinary policy before terminating Plaintiff; and (5) Dowlatram (Plaintiff's replacement) was also fired for cutting and pasting signatures one month after Plaintiff filed her EEOC Complaint. ( See Pl.'s Opp'n at 4-6, 7, 10-11.) For the reasons stated below, the Court finds that the evidence in the record, taken as a whole, is insufficient as a matter of law to create a triable issue as to whether Defendant's legitimate, non-discriminatory reason for terminating Plaintiff's employment was pretextual.

As an initial matter, the relevant question before the Court is not whether Plaintiff's conduct actually constituted a violation of any version of the Bank's Account Opening Procedures or Code of Ethics. Plaintiff's burden, at this point, is to put forth "admissible evidence calling into question that the stated reason for [her] termination . . . was not the real reason." Holowecki v. Fed. Express Corp., 644 F. Supp. 2d 338, 354 (S.D.N.Y. 2009). Thus, any disputes as to whether Plaintiff's cutting and pasting signatures actually violated any Bank policies "entirely misses the point that the ADEA allows employers to discharge employees for any reason, so long as that reason is not a pretext for age discrimination, and relevant evidence would therefore be evidence that suggests, at least circumstantially, that the stated reason was a pretext for such discrimination." Id.; see also Scaria v. Rubin, 117 F.3d 652, 655 (2d. Cir. 1997) ("[T]his Court does not sit as a super-personnel department that reexamines an entity's business decisions.") (internal quotation marks omitted); Saenger, 706 F. Supp. 2d at 509 ("Thus, whether the complaints about Plaintiff were truthful, and whether, if true, they justify termination, are immaterial disputes."). The Court "must ask whether anything about Plaintiff's termination `undermine[s] the credibility of [Defendant's] stated justification.'" Saenger, 706 F. Supp. 2d at 509 (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)) (alterations in original).

1. No Clear Policy Regarding Opening Accounts or Prohibiting Cutting and Pasting Signatures

Plaintiff maintains that in 2007 Defendant did not have any clear policy with respect to opening new accounts. (Pl.'s Opp'n at 4-5.) As noted above, the Court may not evaluate whether Plaintiff's conduct actually constituted a violation of any Bank policy sufficient to justify her termination. Evidence, however, that Plaintiff's termination was based upon an alleged violation of a vague or non-existent policy might be relevant to prove pretext. See Allen v. City of Yonkers, 803 F. Supp. 679, 708 (S.D.N.Y. 1992) ("[W]hen an employer's reason for the action complained of has been shown to be idiosyncratic, unreasonable or riddled with error and where demeanor evidence and vagueness indicated that a pretext is involved a factfinder may conclude . . . that the alleged reasons are not the true rationale behind the action.").

Plaintiff contends that the Bank's Account Opening Procedures were unclear and points to a document that Defendant marked and used during Plaintiff's deposition, entitled "Account Opening Procedures: Personal Accounts," that had been revised four months after Plaintiff's termination. ( See Pl.'s Opp'n at 4-5.) But Plaintiff herself testified that in 2007 procedures did exist that set forth how accounts should be opened, that these procedures were available on the Bank's intranet, and that they required a customer's original signature to open an account. Moreover, Plaintiff has not submitted any evidence that the Account Opening Procedures effective in 2007 differed substantively from those revised in February 2008. Finally, Plaintiff testified that she was aware of no Bank policy that specifically permitted the cutting and pasting of customer signatures. Accordingly, this allegation does not constitute evidence tending to cast doubt on the veracity of Defendant's stated reason for terminating Plaintiff's employment.

Plaintiff also relies on a statement in an affidavit made by Julian Huertas, another former Branch Manager employed by the Bank between 2002 and January 2009, that he first became aware that the Bank "had a problem with the `copy and paste' method for signature cards" when he received an email after Plaintiff's termination directing Bank employees to cease this practice. (Huertas Aff. ¶¶ 8, 9.) Huertas subsequently testified during his deposition, however, that Bank policy requires a customer to sign a signature card and that this had "always been the policy" while he was employed by Defendant. (Huertas Dep. at 36.)

2. Other Employees Alleged Engaged in the Same Conduct

Plaintiff contends that other Bank employees were cutting and pasting customers' signatures in order to open accounts, that Defendant knew of this behavior, and that Defendant failed to discipline or terminate those employees. ( See Pl.'s Opp'n at 6.) Most notably, Plaintiff asserts that "Anderson did the same thing as Hirschberg and was not fired." ( Id. at 11.) Plaintiff also contends that ten other Bank employees "would copy and paste signatures off of existing signature cards." (Hirschberg Aff. ¶ 40.)

After reviewing the record, the Court finds these allegations unsupported by admissible evidence and insufficient to prove pretext. "Just because one is . . . terminated while others are retained does not, without more, demonstrate discrimination." Mattera, 2010 WL 3785576 at *11. "[V]ague claims of differential treatment alone do not suggest discrimination, unless those treated differently are `similarly situated in all material respects.'" Saenger, 706 F. Supp. 2d at 514 (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)); see also Mattera, 2010 WL 3785576 at *11 ("Absent some evidence that other employees `similarly situated in all material respects' were treated differently, the mere fact that one employee suffered some non-facially-discriminatory disparate treatment cannot prove pretext.").

First, Plaintiff has not shown that she and the eleven other Bank employees to whom she compares herself are "similarly situated in all material respects." During her deposition, Plaintiff identified four comparators (Adika, Chiaffitelli, Giangrande, and Anderson) who had allegedly cut and pasted customer signatures but had not been disciplined by the Bank. (Pl. Dep. at 142-47.) Each of these women specifically denied, in testimony given under oath, ever cutting and pasting customer signatures. ( See Adika Dep. at 14-15; Chiaffitelli Dep. at 18; Giangrande Dep. at 26; Anderson Dep. at 23.) Plaintiff has not submitted any evidence, aside from her own unsupported allegations, to the contrary. Cf. Gorzynski, 596 F.3d at 108-09 (plaintiff submitted evidence that younger employees who ignored or violated work rules were promoted while plaintiff was terminated). Although not mentioned in the deposition excerpts provided to the Court, Plaintiff's affidavit lists seven other comparators who also allegedly cut and pasted signatures. (Hirschberg Aff. ¶ 40.) Other than stating, in conclusory fashion, that "I know that this was done" ( see id.), Plaintiff provides no specific factual information to substantiate her claim that any of these seven individuals ever actually cut and pasted customer signatures or admitted to doing so.

Plaintiff testified that: (1) Adika had told Plaintiff that she cut and pasted signatures; (2) Chiaffitelli had said she cut and pasted signatures while working at the Mineola Branch; and (3) Anderson told Plaintiff that Giangrande had cut and pasted signatures while working at the Mineola Branch. (Pl. Dep. at 142-46.)

It is unclear to the Court whether Plaintiff testified about these seven individuals during her deposition. After Plaintiff testified about Adika, Chiaffitelli, Giangrande, and Anderson, Plaintiff was asked: "So we mentioned Lois [Anderson], Marcy [Adika], Nancy [Chiaffitelli], and Patricia [Giangrande] as other individuals who you claim. . . ." (Pl. Dep. at 149.) The deposition transcript excerpt provided to the Court does not contain the remainder of this question, which the Court presumes asks about any other individuals whom Plaintiff alleges cut and pasted signatures, or Plaintiff's response.

Moreover, Plaintiff has not produced any evidence that the Bank knew or should have known that any of these comparators (aside from Anderson, who is discussed below) cut and pasted customer signatures. Plaintiff testified that she never reported Adika's statement to the Bank (Pl. Dep. at 143), and Plaintiff further testified that she did not know if the Bank had knowledge of Chiaffitelli's and Giangrande's alleged cutting and pasting (Pl. Dep. at 146, 147). As for the seven additional comparators listed in Plaintiff's affidavit, Plaintiff does not set forth whether the Bank knew that these individuals were cutting and pasting, other than to summarily state that "[i]t was common knowledge." (Hirschberg Aff. ¶ 40.)

In any event, even assuming the truth of Plaintiff's allegations that these comparators cut and pasted customer signatures and that the Bank knew about it, there is no evidence in the record before the Court that any comparator held the position of Branch Manager at the time their alleged cutting and pasting took place. See Gorzynski, 596 F. 3d at 109 n. 7 (noting that "an employee's position is relevant to the analysis," although "employees need not be of the exact same rank to be considered `similarly situated'"). Although it appears from the record that Carol Harvey (a comparator listed in Plaintiff's affidavit) was a Branch Manager at the time of her termination and Giangrande was an Assistant Branch Manager turned Acting Branch Manager who "stepped down" to become a personal banker, Plaintiff has offered no evidence that Harvey or Giangrande cut and pasted signatures while they worked as Branch Managers. Furthermore, there is no record evidence to suggest that any of the remaining comparators ever held the position of Branch Manger — Adika and Anderson were Assistant Branch Managers and Chiaffitelli was a sales and service specialist. See Holowecki, 644 F. Supp. 2d at 354 (finding plaintiff failed to proffer admissible evidence that his termination was age-related when he "did not attempt to demonstrate that [four younger employees] were [] treated [more favorably] under circumstances similar to [his]").

Plaintiff has put forth no evidence before the Court as to the positions held by the remaining comparators listed in her affidavit.

Finally, it is undisputed that at least five of the comparators that Defendant allegedly treated more favorably than Plaintiff were also in the protected class. ( See Def.'s 56.1 ¶¶ 31, 49, 51, 53; Pl.'s 56.1 ¶ 80.) In particular, Anderson — whom Plaintiff alleges received only a written warning for engaging in the same conduct for which Plaintiff was terminated — was sixty years old in October 2007. ( See Def.'s 56.1 ¶ 31.) This certainly undercuts Plaintiff's theory that any difference in discipline between Plaintiff and Anderson for the same conduct was age-based. Goldman v. Admin. for Children's Servs., 2007 WL 1552397, at *6 (S.D.N.Y. May 29, 2007) ("In order to raise an inference of discrimination, plaintiff must show that she was `similarly situated in all material respects' to an individual ` outside [her] protected group' who was treated preferentially to her.") (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)) (emphasis added). Moreover, Plaintiff has not provided this Court with any evidence as to the ages of the remaining comparators.

Plaintiff's argument that Anderson was treated differently from Plaintiff because Anderson "was on a different level" and that "Volpicello was targeting Branch Managers and not subordinates" lends further support for the Court's conclusion that Plaintiff and Anderson were not similarly situated. ( See Pl.'s Opp'n at 13.)

In short, Plaintiff has submitted no evidence that Defendant preferentially treated other similarly-situated employees outside the protected group who engaged in the same conduct as Plaintiff.

3. Volpicello's Alleged "Target[ing]" of Plaintiff and Other "Older" Branch Managers

Plaintiff asserts that Volpicello "targeted" Plaintiff for termination before the October 1, 2007 audit ever took place. (Pl.'s Opp'n at 4.) As support for this contention, Plaintiff argues that: (1) the poor performance reviews "issued on" September 29 and 30, 2007 were "not supported by any facts"; (2) three auditors conducted the October 1, 2007 audit, "which was unprecedented in Hirschberg's experience"; and (3) "the auditors went much further back in time as compared to all prior audits that Hirschberg had." ( Id.)

The problem with this allegation is, essentially, that Plaintiff does not submit any evidence that any of the actions taken by Volpicello (or anyone else employed by Defendant, for that matter) were motivated by an age-based discriminatory animus. Even accepting as true Plaintiff's allegations that Volpicello was "cold, indifferent and dismissive" towards her on the

Volpicello was 42 years old, nine years younger than Plaintiff, when he terminated Plaintiff's employment in October 2007. While "a member of a protected class may discriminate against fellow members . . . a number of courts have recognized that they are less likely to do so than nonmembers of the protected class." Saenger, 706 F. Supp. 2d at 510 n. 9 (collecting cases).

two occasions that they met face-to-face (Pl.'s Opp'n at 2) or that Volpicello "did not respond or acknowledge" Plaintiff's statements about her length of service during a meeting (Pl.'s 56.1 ¶ 81), the Court finds that a reasonable trier of fact could not make the inferential leap that Defendant's stated reason for terminating Plaintiff's employment was pretextual. Plaintiff alleges that Volpicello gave her unjustified poor performance reviews, and then "overstaffed the [October 1, 2007] audit . . . [and] had the auditors dig much deeper than they ever had done before . . . to find dirt to justify the poor reviews so that they could have a reason to get rid of an older Branch Manager." (Pl.'s Opp'n at 10-11.) This theory, however, is simply not supported by any evidence on the record before the Court.

Plaintiff argues that Volpicello gave her a poor performance review and a poor year end review on September 29 and 30, 2007, respectively, even though "there was no reason to give her poor reviews," and then Plaintiff was "terminated from her job within the next week." ( Id. at 11.) However, Plaintiff has not produced any evidence that her age played any role in the poor performance reviews she received. See Valentine v. Standard Poor's, 50 F. Supp. 2d 262, 264 (S.D.N.Y. 1999) ("In any event, plaintiff's subjective disagreement with his reviews is not a viable basis for a discrimination claim."); Iverson v. Verizon Commc'ns, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) ("Merely disagreeing with a supervisor's assessment of work performance, however, is insufficient to raise a triable issue of fact regarding pretext.") (internal quotation marks omitted). Moreover, Plaintiff's claim that she received good performance evaluations in the past does not demonstrate that her final performance reviews were unjustified. See Mattera, 2010 WL 3785576 at *13 ("Even if credited, plaintiff's claim of prior favorable performances does not, without more, prove his subsequent poor reviews were unwarranted."); Iverson, 2009 WL 3334796 at *5 ("[D]emonstration of past positive performance is insufficient to raise a genuine issue of disputed fact with respect to pretext.") (internal quotation marks omitted).

Defendant contends that, despite the "Effective Dates" listed on the documentary evidence relied upon by Plaintiff, the performance reviews were not "issued" before Plaintiff was terminated on October 5, 2007. (Reply Mem. at 6-8.)

Furthermore, Plaintiff has produced no evidence to support her allegation that the October 1, 2007 audit was overstaffed and that the auditors were given authorization to "dig much deeper" than normal in order to "find dirt to justify the poor reviews." ( See Pl.'s Opp'n at 10-11.) It is undisputed that the BCCR department that conducts banking center audits is "a separate department within the Bank that has no reporting relationship to [] CMEs" such as Volpicello. (Def.'s 56.1 ¶ 21.) There is simply no evidence in the record to suggest that Volpicello played any role in assigning three auditors to conduct the October 1, 2007 audit or that he directed those auditors to expand the normal scope of their review. In short, Plaintiff has put forth no admissible evidence demonstrating that the October 1, 2007 audit was conducted with the purpose of uncovering "dirt" to support her poor performance reviews.

Finally, Plaintiff alleges that "several other older Branch Members were also forced out of their positions" as part of Volpicello's campaign to target older Bank employees. ( See Pl.'s Opp'n at 6.) In particular, Plaintiff states that within the first several months of Volpicello's tenure as CME both Carol Harvey and Linda Enbar, Branch Managers over the age of 50, were "forced out" of their positions. (Pl.'s 56.1 ¶ 80.) This proffered theory that Defendant engaged in a pattern of terminating older Branch Managers, however, cannot constitute evidence of pretext because "it does not meet certain minimal standards." Saenger, 706 F. Supp. 2d at 515.

First, to the extent Plaintiff intends that this evidence be "considered as statistical evidence, plaintiff's `sample' of two [is] clearly insufficient to sustain a reasonable inference that [Plaintiff's] treatment by the [Defendant] was motivated by discriminatory intent." McCarthy v. N.Y. City Technical Coll. of the City Univ. of N.Y., 202 F.3d 161, 165 (2d Cir. 2000). Moreover, relevant and admissible statistical evidence "must be supported by expert analysis," which has not been provided here. See Saenger, 706 F. Supp. 2d at 515-16. In fact, Plaintiff has failed to submit any evidence that would complete the relevant statistical picture — by demonstrating, for example, the ages of each Branch Manager that was fired (and not fired) by Volpicello during the relevant time period. See id. at 516. "Courts routinely reject statistics that are not sufficiently complete to imply a pattern of discrimination." Id. More importantly, Plaintiff's anecdotal evidence regarding the termination of two other Branch Managers appears to be based entirely on hearsay and speculation. ( See Hirschberg Aff. ¶ 21.) Plaintiff has put forth no evidence to rebut Defendant's legitimate and non-discriminatory reasons for those two employees' terminations and has not demonstrated that their terminations were part of a pattern of discriminating against older workers. Saenger, 706 F. Supp. 2d at 517 (finding plaintiff's evidence of a pattern of discrimination was "hearsay and speculation" that "cannot be used to defeat a motion for summary judgment"). In short, this evidence cannot be used to demonstrate that Defendant's stated reason for Plaintiff's termination was a mere pretext for age discrimination.

Plaintiff also relies on Huertas' statement in his affidavit that he "know[s] that the Bank was making an effort to `manage people out' so that they could replace them with younger, less expensive associates," and that "older managers were being written up for little things that would not have resulted in discipline in the past." (Huertas Aff. ¶ 11.) Huertas subsequently testified at his deposition that this statement was based on "rumors" and that he did not "have the facts" to support that statement. (Huertas Dep. at 112-13.)

4. Plaintiff's Remaining Evidence of Pretext

a. Progressive Discipline Policy

Plaintiff argues that although the Bank has a "discipline policy that progresses from verbal warning to written warning to final warning and then termination," the Bank "chose to ignore that policy as it applied to Hirschberg." (Pl.'s Opp'n at 6; see also Hirschberg Aff. ¶ 50.) As an initial matter, Plaintiff has not cited any record evidence providing specific factual information underlying her claim that "defendant has a policy of progressive discipline." (Hirschberg Aff. ¶ 50; see also Huertas Aff. ¶ 14 ("I am aware of the bank's progressive discipline policy.").) For instance, there is no evidence before the Court as to whether this was a formal written Bank policy and/or whether it was in effect at the time of Plaintiff's termination. More importantly, Plaintiff has produced no evidence that any progressive discipline policy applied to Branch Managers or was applicable to violations of the Code of Ethics. See Rupert v. City of Rochester, 701 F. Supp. 2d 430, 443 (W.D.N.Y. 2010) ("[Plaintiff] has not shown that the violations for which he was disciplined fall within the category of violations for which progressive discipline is appropriate.")

The parties do not dispute that violations of the Bank's Code of Ethics could result in immediate termination.

Nor has Plaintiff produced any evidence that younger Branch Managers who admitted to cutting and pasting customer signatures received the benefit of the progressive discipline policy. Cf. Berube v. Great Atl. Pac. Tea Co., Inc., 2010 WL 3021522, at *8 (D.Conn. July 29, 2010) (noting Second Circuit's finding of pretext when the plaintiff produced evidence of four younger similarly-situated comparators who "received progressive discipline for transgressions of comparable seriousness while he did not") (internal quotation marks omitted). Plaintiff emphasizes that although Anderson "was also accused of copying and pasting [signatures] as a result of the same October 2007 audit," she was only issued a written warning and was not terminated. (Hirschberg Aff. ¶ 51.) Defendant has proffered unrebutted evidence, however, that Anderson was not a Branch Manager and that Plaintiff admitted to cutting and pasting signatures, conduct which it considered to be a violation of the Code of Ethics, but Anderson did not. In addition, Anderson's membership in the protected class tends to undercut any inference that age-based animus was behind the difference in punishments doled out by the Bank.

b. Timing of Dowlatram's Discharge

Plaintiff also cites, as evidence of pretext, that "Dowlatram was fired nearly one (1) month after Hirschberg had already filed [a charge of discrimination] with the Equal Employment Opportunity Commission." (Pl.'s Opp'n at 7.) To the extent Plaintiff is attempting to imply that the timing of Dowlatram's termination was meant to cover up wrongdoing on Defendant's part, Plaintiff has proffered no evidence showing that the timing of Plaintiff's EEOC charge played any role in Dowlatram's termination.

5. Conclusion

In short, the Court finds that Plaintiff has proffered no admissible evidence showing that age was a motivating factor (much less a "but for" cause) of Defendant's decision to terminate her employment. While Plaintiff has set forth her subjective belief that she was discriminated against, this is not enough — on its own — to withstand a motion for summary judgment. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997) (no inference of discrimination when plaintiff "could not recall any action or statement by [the defendant] that showed age discrimination," and "could only say that [the defendant] smiled at her less approvingly" as time went on); Holowecki, 644 F. Supp. 2d at 353 ("Because the only evidence supporting [plaintiff's] prima facie case is his own subjective belief that he was discriminated against, summary judgment is appropriate."); Vazquez v. Southside United Hous. Dev. Fund Corp., 2009 WL 2596490, at *9 (E.D.N.Y. Aug. 21, 2009) ("However, `a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment' in a discrimination action.") (quoting Holcomb v. Iona Coll., 521 F.3d 130, 127 (2d Cir. 2008)). Considering the record evidence as a whole, therefore, the Court finds that a reasonable juror could not find that Defendant's proffered reason for terminating her employment was a pretext for unlawful age discrimination. Accordingly, Plaintiff's claims under both the ADEA and the NYSHRL are dismissed.

Plaintiff cites Reeves v. Sanderson Plumbing, 530 U.S. 133, 148 (2000) for the proposition that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." (Pl.'s Opp'n at 13.) According to Plaintiff, "[a] reasonable person on the jury could conclude that the defendant's asserted basis for its actions is false." ( Id. at 13-14.) For the reasons set forth above, the Court finds that a reasonable factfinder would not conclude that Defendant's stated reason for terminating Plaintiff's employment was pretextual. Even if Plaintiff did prove that Defendant's asserted reason for her termination was false, she would not be relieved of the requirement "that the evidence, considered in its entirety . . . must be capable of supporting a reasonable finding that the true reason was the prohibited discrimination plaintiff alleges." McCarthy, 202 F.3d at 166. In this case, on the whole, there is insufficient evidence to infer that Plaintiff's age was the "but for" cause, or a motivating factor, of Defendant's decision to terminate her employment. See id.

CONCLUSION

For all the above reasons, Defendant's motion for summary judgment is GRANTED as to all of Plaintiff's claims, and this case is accordingly DISMISSED in its entirety. The Clerk of the Court is directed to close this case.

SO ORDERED.