MATTERA v. JP MORGAN CHASE CORP

Defendants claim plaintiff cannot prove that his termination raises an inference of discrimination because he proffers no evidence of outwardly discriminatory conduct and admits that no one made any comments or took any action towards him relating to age or suggesting age bias. (Def.'s Mem. at 8.) But where "an employer has acted with discriminatory intent, direct evidence of that intent will only rarely be available . . . affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Holcomb, 521 F.3d at 137. Indeed, it is precisely because courts are not provided direct and certain evidence of discrimination that the law calls for a finding of an "inference."

The Second Circuit has continuously held that an inference of discrimination arises, for purposes of ADEA defendants' summary judgment motions, when an older qualified employee is replaced by someone younger. See, e.g., D'Cunha, 479 F.3d at 195 (an age difference of eight years raises an inference of discrimination); Gorzynski, 596 F.3d at 107; Francis v. Elmsford Sch. Dist., 263 Fed. Appx. 175, 177 (2d Cir. 2008); Woodman, 411 F.3d at 79. Because Chocheles was 12 years younger than plaintiff when plaintiff was fired and replaced by Chocheles, plaintiff has sufficiently raised an inference of discrimination.

Having satisfied his burden of proffering sufficient evidence to establish a prima facie case, the burden shifts to defendants to articulate a legitimate nondiscriminatory reason for plaintiff's termination. Gorzynski, 596 F.3d at 106. Defendants here claim plaintiff was terminated for his "failure to improve his performance." (Def.'s Mem. at 9.) In support of that claim are the extremely well documented performance shortcomings highlighted in the 2005 and 2006 Reports and the Warning, along with O'Neill's claim of receiving negative feedback regarding plaintiff from several other employees. See supra, §§ I.D, F. Not only was O'Neill, plaintiff's supervisor, obviously and expressly dissatisfied with plaintiff's performance, but plaintiff was also informed by the Warning, and understood, that his future employment depended on his meeting specific objectives and improving his performance generally. In writing his Recommendation for Termination, O'Neill stated as grounds plaintiff's failure to complete the Warning's objectives (which included improving performance is various areas). (Blecher Decl. Ex. K.) Clearly such performance shortcomings would constitute a legitimate nondiscriminatory reason for plaintiff's termination. See Slattery, 248 F.3d at 93; Gorzynski, 596 F.3d at 107. Thus defendants have satisfied their burden of articulation.

Plaintiff claims that defendants have not met their burden because "[p]laintiff received numerous promotions, salary increases, [and] annual bonuses . . . [and] [a]s such, there exist genuine issues of material fact as to [d]efendants' legitimate nondiscriminatory reason." (Pl.'s Opp. at 9.) Plaintiff's argument, however, misunderstands the law. Defendants' burden at this stage is not to prove nondiscrimination. Instead, defendants must "introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). Whether plaintiff can produce evidence casting doubt on defendants' proffered reasons, and what the character of that evidence is, is taken in to account only at the next stage of the analysis, namely whether defendants' reason is mere pretext for discrimination. Gorzynski, 596 F.3d at 107.

Because defendants have articulated a legitimate, nondiscriminatory reason for plaintiff's termination, plaintiff can no longer rest on his prima facie case and must instead "raise[] sufficient evidence from which a reasonable jury could conclude by a preponderance of the evidence that [his] age was a `but for' cause of [defendants'] decision to fire [him]." Gorzynski, 596 F.3d at 107; see also Sullivan v. Brodsky, 2010 WL 2202977, at *1 (2d Cir. June 02, 2010) ("Proceeding to the final step of the analysis, plaintiff must adduce sufficient evidence to allow a rational fact finder to conclude that age was the `but-for' cause of the challenged adverse employment action and not just a contributing or motivating factor") (internal quotation marks omitted); Holowecki, 2010 WL 2573864, at *1 ("In order to satisfy their burden at the final stage, plaintiffs must offer evidence that age discrimination was the `but-for' cause of the challenged actions"); Alam, 2009 WL 3096293, at *8 ("under the ADEA, the discrimination must have been a `but-for' cause of the employer's decision") (internal quotation marks omitted).

Plaintiff proffers three arguments why he was terminated due to age discrimination: First, that he suffered several instances of disparate treatment; second, that defendants' poor performance reviews were unwarranted considering his good performance in the past; and third, that his replacement was younger. The evidence in the record, however, is insufficient to create a triable issue as to whether defendants' legitimate nondiscriminatory reasons were pretextual. Plaintiff's list of highly generalized disparate treatment instances and the conclusory allegations drawn therefrom do not suffice to show discrimination. Disagreements regarding poor performance evaluations and claims of prior good performance do not, as a matter of law or logic, mean that present poor performance reviews were unfounded. And the mere fact that plaintiff's replacement was younger, though enough to establish the inference of discrimination prong of plaintiff's prima facie case, cannot standing alone establish pretext.

Plaintiff's claimed instances of disparate treatment constitute a list of allegations that just as soon support defendants' reasons as undercut them. Plaintiff states that defendants (1) told plaintiff he could not have conversations in the office while allowing other employees (who were apparently younger) to do so; (2) told other employees to not have conversations with plaintiff; (3) isolated plaintiff from other employees; (4) spoke in a condescending tone of voice to plaintiff; (5) required plaintiff to attend weekly one-on

one meetings for a longer period than other employees; (6) maintained a regular log of plaintiff's work but not of other employees' work; (7) gave plaintiff clerical duties but did not give other employees such duties; (8) criticized plaintiff at staff meetings; and (9) allegedly silenced plaintiff by putting a hand in his face. (Pl.'s Opp. at 10.)

These largely conclusory allegations are insufficient to prove pretext. See Valentine v. Standard Poor's, 50 F. Supp. 2d, 262, 284 (S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000). Just because one is treated differently around the office, is granted different bonuses, or is terminated while others are retained does not, without more, demonstrate discrimination. See Ferrand v. Credit Lyonnais, 2003 WL 22251313, at *8 (S.D.N.Y. Sept. 30, 2003), aff'd, 110 Fed. Appx. 160 (2d Cir. 2004). 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. Id.; see also Ricks v. Conde Naste Publications, Inc., 6 Fed. Appx. 74, 78 (2d Cir. 2001) (plaintiff African-American woman's claims that Caucasian employees were not required to keep their logs in as detailed a format as she, and that she was subject to verbal attacks while other employees were not, were not enough to counter defendants' legitimate nondiscriminatory reason regarding performance absent evidence that those employees did not have plaintiff's documented performance issues); Sklar v. New York Life Ins. Co., 34 Fed. Appx. 403, 405 (2d Cir. 2002) ("[having] not provided any evidence linking [plaintiff's supervisor's alleged lies about and assaults on him] to age discrimination . . . these alleged incidents are insufficient to survive a motion for summary judgment"). Plaintiff here provides no evidence that any other employees who were consistently cited for ongoing issues of poor performance did not suffer the same treatment as that directed towards him. Plaintiff believed that he faced the listed instances of disparate treatment in order to force him out and bring in a "younger-looking group." (Mattera Dep. at 122.) But that a "younger-looking group" would be created by hiring a new employee one year from fifty is questionable. (See Mushkin Decl. Ex. P.)

More importantly, however, plaintiff's "feelings" and "beliefs" are no substitute for persuasive evidence that identifiable, valid comparators were treated in a meaningfully different manner. See Holowecki v. Federal Exp. Corp., 644 F. Supp. 2d 338, 353 (S.D.N.Y. 2009), aff'd, 2010 WL 2573864 (2d Cir. June 24, 2010) ("[Plaintiff] does identify a handful of younger couriers who `remained employed' at his station after his termination, but fails to demonstrate how any of these individuals were treated differently under circumstances similar to his. Because [plaintiff] has offered nothing more than conclusory allegations in support of his age discrimination claim . . . his claim must be dismissed"); Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) (plaintiff's "own conclusory statements are the only other evidence he provides to show that Verizon's proffered reasons were merely a pretext for discrimination. As a matter of law, such statements are insufficient to establish pretext"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (plaintiff may not establish even an inference of discrimination by offering "purely conclusory allegations of discrimination"). Indeed, obnoxious bosses and difficult times at work do not, as a

matter of law, constitute employment discrimination; "[w]hile plaintiff's tenure at [JMPC] was unpleasant, [he] has provided no evidence tending to show that [his age], rather than [his] incompetence, was the cause of [his] dismissal." Dimps v. Human Resources Admin. of City of New York, 2001 WL 1360235, at *8 (S.D.N.Y. November 5, 2001).

Finally, plaintiff's claim here comes nowhere near the documented disciplining of older employees for rightful conduct, while allowing younger employees off the hook for wrongful conduct that the Second Circuit has found sufficient to "raise[] a question for the jury." Gorzynski, 596 F.3d at 98-99, 108-109. Accepting all of plaintiff's generalized allegations as true, these facts neither undermine the credibility of defendants' reasons nor tend to prove that age discrimination played any part in O'Neill's decision to terminate him, much less was the but-for cause. Byrnie v. Town of Cromwell Bd. Of Educ., 243 F.3d 93, 103 (2d Cir. 2001). Plaintiff's facts are entirely consistent with defendants' legitimate nondiscriminatory reasons. The 2005 and 2006 Reports and the Warning indicate that as of the start of 2005 plaintiff's performance significantly deteriorated and that plaintiff was unable to correct his performance shortcomings. O'Neill responded by putting plaintiff under closer supervision and simplifying his tasks. Nothing other than plaintiff's belief that JPMC wanted a "younger-looking" group, Mattera Dep. at 122, suggests that O'Neill was motivated by an unlawful animus. See Slattery, 248 F.3d at 94.

Plaintiff's claim that his poor performance reviews were unfounded is equally unavailing. As a preliminary matter, "an employee's disagreement with her employer's evaluation of her performance is insufficient to establish discriminatory intent." Ricks, 6 Fed. Appx. at 78; see also Valentine, 50 F. Supp. 2d at 284 ("In any event, plaintiff's subjective disagreement with his reviews is not a viable basis for a discrimination claim"); Iverson, 2009 WL 3334796, at *5 ("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). More importantly, an employee's claim of evaluation fabrication fails when, as in the case at bar, the employee "signed most of the reviews that document his performance as being substandard . . . [and] fail[ed] to identify any evidence that refutes defendants' characterization of his performance." Chukwurah, 354 Fed. Appx. at 495.

Plaintiff's undocumented claim that he had received good performance evaluations in the past, Pl.'s 56.1 Statement ¶ 6, does not come close to the concrete evidence necessary to give rise to a reasonable inference that poor performance evaluations were suspect. See Valentine, 50 F. Supp. 2d at 284 ("[P]laintiff claims that his harsh evaluations were inconsistent with his alleged proficiency in rating stocks and his early success at S P in the mid-1980s; . . . [his reviews,] however, dealt with his sloppiness, lateness, inattentiveness, lack of creativity, poor writing, weak analysis, impressions created outside the department and relationships with others, not his stock recommendations"). Whereas plaintiff's claim in Valentine pitted specifically indentified good performance against several items contributing to poor performance reviews, plaintiff here pits merely his claim to have received good reviews in the past against very specific and very well-documented performance failings in the present. See supra, §§ I.A, D (listing several ways that plaintiff's performance was deficient and noting that plaintiff's bonus fell from $15,000 for 2004 to $10,000 for 2005).

Even if credited, plaintiff's claim of prior favorable performance does not, without more, prove his subsequent poor reviews were unwarranted. Indeed, "[d]emonstration of past positive performance is insufficient to raise a genuine issue of disputed fact with respect to pretext." Iverson, 2009 WL 3334796, at *5 (internal quotation marks omitted). Plaintiff may have been promoted and received raises, bonuses, and positive reviews in the past. But favorable performance in the positions plaintiff held before moving to Treasury Services is not inconsistent with the two poor performance reviews he received after moving to Treasury Services. Godfrey v. Ethan Allen, Inc., 113 F.3d 1229, 1997 WL 279933, at *2 (2d Cir. 1997) (unpublished table decision). Even post-termination recognition of certain aspects of an employee's performance does not, by itself, cast doubt on an employer's decision to terminate an employee because his overall performance was deficient. See Emanuel v. Oliver, Wyman, Co., 85 F. Supp. 2d 321, 331-32 (S.D.N.Y. 2000). In sum, plaintiff's generalized contention that his undocumented prior good performance is insufficient to raise a triable issue of pretext.

Absent evidence of actual disparate treatment motivated by age discrimination, or non-subjective evidence that the poor performance evaluations were contrived, plaintiff's sole remaining fact in support of discrimination, namely that he was replaced by a younger worker, cannot defeat a motion for summary judgment. Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) ("[A] jury cannot infer discrimination from thin air. And thin air is all the plaintiff has produced in the case before us. Norton proved (1) that he was over forty years old when he was fired; (2) that the person who fired him was under forty years of age; and (3) that one other person who was fired around the same time as Norton was also over forty. . . . [this] is simply not enough to support [a] jury's conclusion that he was fired because of his age."). Indeed, that plaintiff "was replaced by a younger employee . . . does not suffice to prove that the adverse employment action here was motivated by age discrimination. [Plaintiff] cannot defeat summary judgment merely by showing that he was replaced by [a younger employee]. Typically, younger workers will replace older ones; this is an unremarkable phenomenon that does not . . . prove discrimination." Feldman v. Looms, Div. of Levcor Intern., Inc., 198 F.3d 233, 1999 WL 973518, at *2 (2d. Cir 1999) (unpublished table decision) (internal quotation marks and citations omitted).

Having reviewed the record as a whole, the Court concludes that no reasonable jury could find age discrimination to be a "but-for" cause of plaintiffs termination. Defendants' motion for summary judgment on plaintiff's discrimination claim is granted.

The ADEA provides in relevant part that "[i]t shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section." 29 U.S.C. § 623(d).

Retaliation claims under the ADEA are also analyzed using the McDonnell Douglas burden-shifting framework. Gorzynski, 596 F.3d at 110. To establish his prima facie case plaintiff must show that (1) he participated in protected activity known to defendant, (2) he suffered an adverse employment action, and (3) a "causal connection [exists] between [plaintiff's] engagement in the protected activity and the adverse employment action." Id.; Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003); Slattery, 248 F.3d at 94. Once established, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the termination. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). The burden then "shifts back to the plaintiff to demonstrate pretext." Slattery, 248 F.3d at 95.

Defendants contest two elements of plaintiffs prima facie case: that plaintiff undertook known protected activity and that a causal connection existed between that activity and his termination. (Def.'s Mem. at 10.)

Whether plaintiff's conduct was protected activity under the ADEA requires satisfaction of three essential elements. First, plaintiff must complain, in some form, about allegedly discriminatory practices. See, e.g., Gorzynski, 596 F.3d at 111 (plaintiff complaining to supervisors about disparate treatment specifically between older and younger employees); Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (complaining of supervisor's sexually harassing behavior to employees charged with handling such claims); Slattery, 248 F.3d at 95 (filing an EEOC complaint before discharge); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (complaining to corporate officer about and participating in internal investigation of harassment). But see Cruz v. New York State Deputy Atty. Gen for Medicaid Fraud, 1995 WL 81279, at *1 (mere allegation of "protesting a discriminatory rating" not enough of a complaint for protected activity). Second, though the complained-of conduct need not be discriminatory as a matter of law, plaintiff must have a good faith, reasonable belief that the practices complained of were unlawfully discriminatory. Reed, 95 F.3d at 1178; Kessler v. Westchester County Dep't of Social Services, 461 F.3d 199, 210 (2d Cir. 2006). And third, plaintiff's complaints must be known to defendants, and specifically to O'Neill who alone made the termination decision. See Sengillo v. Valeo Elec. Systems, Inc., 328 Fed. Appx. 39, 41 (2d Cir. 2009); Patane, 508 F.3d at 115. "[W]hether a particular activity is `protected' is a question of law; whether the plaintiff engaged in that activity is a question for the jury." 5 Hon. Leonard B. Sand, et al., Modern Federal Jury Instructions-Civil cmt. 3-320 (2009).

On the record, plaintiff's complaints of discrimination included the following instances. First, when speaking with Yudkoff directly after being issued the Warning, plaintiff "left it as I really feel discriminated against and didn't state the reason." (Mattera Dep. at 101.) At plaintiff's next meeting with both O'Neill and Yudkoff present, after producing his written response to the Warning, plaintiff again said he felt discriminated against. (Id. at 107-108.) Finally, on September 22, three days after O'Neill's official recommendation that plaintiff be terminated, plaintiff sent an email to Winter saying that he felt "[O'Neill] is discriminating," (Blecher Decl. Ex. O.), and followed that up on September 25 with a call to Winter in which he discussed the discrimination. (Pl.'s 56.1 Statement ¶ 88.) These complaints of discrimination suffice to satisfy the complaint and the awareness prongs of the analysis of protected activity. Plaintiff mentioned that he felt discriminated against, albeit providing no bases or grounds for that contention. And though the complaint was not made until after JPMC issued plaintiff the Warning, it was made and made known to O'Neill, before O'Neill made the final decision to terminate. In other words, O'Neill, the person with sole responsibility for making the termination decision, knew of plaintiff's complaints of discrimination before making that decision.

However, merely complaining of discrimination and making that complaint known does not satisfy the protected activity element of a prima facie case of retaliation under the ADEA. Plaintiff must also have had a good faith, reasonable belief that the complained-of conduct was unlawfully discriminatory. Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 292 (2d Cir. 1998); Amin v. Akzo Nobel Chemicals, Inc., 282 Fed. Appx. 958, 961 (2d Cir. 2008); Spadola v. New York City Transit Auth., 242 F. Supp. 2d 284, 291 (S.D.N.Y. 2003) ("employee must demonstrate . . . a good faith, reasonable belief that the underlying challenged actions of the employer violated the law"). For the belief to be reasonable, plaintiff must present at least some evidence of conduct, discrimination, animus, or bias existing at the time he made the complaint and pointing towards illegality. Spadola, 242 F. Supp. 2d at 291 ("The employee's belief that he was opposing an employment practice made unlawful by Title VII must also be objectively reasonable, in the sense that the asserted opposition must be grounded on sufficient evidence that the employee was the subject of discrimination and harassment at the time the protest to the offending conduct is registered") (emphasis added). Plaintiff's belief that complained-of conduct was illegal thus depends on plaintff's ability to point to facts at least indicative of illegal conduct. See, e.g., Reed, 95 F.3d at 1179 (plaintiff complained of a coworker's comment indicative of sexual harassment); Patane, 508 F.3d at 110 (same); Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 80 (2d Cir. 2001) (same); Slattery, 248 F.3d at 89 (filing EEOC complaint alleging age discrimination and citing statements referring to age and youth); Gorzynski, 596 F.3d 93 (complaining to supervisors about younger employees going undisciplined while older employees faced discipline for similar conduct, and about general "unequal enforcement of the rules . . . with respect to older employees versus younger employees"); Kessler, 461 F.3d at 210 (filing official complaint stating that non-class members were granted promotions and other employment privileges while plaintiff was denied).

Because the Court finds that plaintiff cannot establish the causal connection element required to make out a prima facie case of retaliation, the Court need not and does not find that plaintiff's belief that the complained-of conduct, at the times plaintiff made his complaints, could not have been reasonable as a matter of law. The Court notes, however, that plaintiff's evidence suffices to allow a reasonable belief only to the most minimal extent. Plaintiff's case is distinguishable from the litany of cases cited above in one key respect. Plaintiff can point to no evidence of discrimination, animus, or bias, or of conduct indicating the same, at the time he complained of discrimination. Indeed, plaintiff's sole evidence raising an inference of discrimination is that JPMC replaced him with an employee twelve years his junior. (Pl.'s Opp. at 6-8.) The record is devoid of any other evidence pointing to discrimination. See supra, §§ II.B.3.a-c. However, all of plaintiffs complaints of discrimination were made before he was terminated and replaced. In other words, the inference of discrimination had not yet arisen at the time plaintiff complained of discrimination. Plaintiff's conclusory statement that he "could not see any other reason [than age]," (Mattera Dep. at 78,) hardly suffices. See Blitzer v. Potter, 2005 WL 1107064, at *13 (S.D.N.Y. May 06, 2005) ("[plaintiff] has not shown any semblance of [age]-oriented motivation in the events or conversations. Therefore, [plaintiff] has not participated in protected activity") (internal quotation marks and citation omitted); Bain v. Wal-Mart Stores, Inc., 585 F. Supp. 2d 449, 454 (W.D.N.Y. 2008) (because "description of `vulgar' comments [supervisor] had previously made fell short of describing a hostile work environment, [plaintiff's complaint] did not, as a matter of law, constitute protected activity").

Though plaintiff's belief that he faced discriminatory treatment may just pass muster, he fails to establish a causal connection between his complaints and his termination. Defendants contend, correctly, that no causal connection may be inferred because plaintiff's complaints occurred after the 2005 and 2006 Reports and the Warning, that is well after the adverse developments leading to his termination began to unfold.

Proof of causation does not necessarily require that the first act in the chain leading to an employee's eventual termination occur after the employee's complaints of discrimination. "[C]ausation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Bd. Of Educ., 232 F.3d 111, 117 (2d Cir. 2001); Ortiz-Moss v. New York City Dep't of Transp., 623 F. Supp. 2d 379, 397 (S.D.N.Y. 2008). Indeed, it is well settled that an ADEA plaintiff "can indirectly establish a causal connection to support a . . . retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action." Gorzynski, 596 F.3d at 110 (citing Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001)). The Second Circuit has found that four months is a sufficiently short period to establish temporal proximity. Gorzynski, 596 F.3d at 111.

At the same time, when "timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery, 248 F.3d at 95 (there finding that a lessening of plaintiffs job responsibilities due to deficient performance five months prior to plaintiff's filing of an EEOC complaint precluded any causal connection between plaintiff's complaint and his firing); Deebs v. Alstom Transp., Inc., 346 Fed. Appx. 654, 658 (2d Cir. 2009) (prior nondiscriminatory adverse employment actions based on poor performance prior to plaintiff's filing of an EEOC complaint precluded causal connection despite temporal proximity); Dixon v. Int'l Federation of Accountants, 2010 WL 1424007, at *6 (S.D.N.Y. Apr. 9, 2010) (repeated critiques of plaintiffs management skills prior to plaintiff's complaints of discrimination precluded causal connection despite temporal proximity); Williams v. Time Warner Inc., 2010 WL 846970, at *6 (S.D.N.Y. Mar. 3, 2010) (lessening of plaintiffs work responsibilities and exclusion of plaintiff from meetings and events prior to plaintiff's complaints of discrimination precluded causal connection despite temporal proximity); Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 615 (S.D.N.Y. 2008) (complaints

regarding plaintiff prior to plaintiff's complaint of discrimination precluded causal connection despite temporal proximity).

Plaintiff here first complained of discrimination to Yudkoff in late June or July 2006. He then complained of discrimination to both Yudkoff and O'Neill in August 2006. Finally, he complained to Winter within days and on the day of his firing. Even taking the late June date as the start of the temporal proximity clock, and therefore three months prior to the termination, plaintiff's complaints were within a four-month time period. But plaintiff's non-refuted poor performance reports began in mid-2005, a full year before he first complained of discrimination and fifteen or so months before he was terminated. Because plaintiff relies only on the temporal proximity between his complaints and his firing to establish a causal connection between the two, (Pl.'s Opp. at 13,) and because plaintiff's documented poor performance began significantly and sufficiently earlier, plaintiff cannot establish that any such causal connection existed. See Slattery, 248 F.3d at 95 (deficient performance began just five months before plaintiff's complaint). Because plaintiff cannot establish a causal connection, plaintiff cannot make out a prima facie case of unlawful retaliation, and therefore plaintiff's retaliation claim fails. Defendants' motion for summary judgment on plaintiff's retaliation claim is granted

For the reasons stated above, defendants' motion for summary judgment [20] is GRANTED. The Clerk of the Court is directed to close this case.

SO ORDERED.