Proof of a causal connection between a protected activity and
adverse employment action "can be established indirectly by
showing that the protected activity was followed closely by
discriminatory treatment. . . ." DeCintio v. Westchester County
Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) (emphasis in
original). "[P]laintiff[s'] burden . . . is a light one, usually
demanding only that the protected activity preceded the adverse
action in order to satisfy the causation requirement." See
Raniola v. City of New York, 243 F.3d 610, 624 (2d Cir. 2001).
Between one and six months after the EEOC charges were filed
by Plaintiffs and this lawsuit commenced, Miles, Dushas and
Glenn were terminated, Epstein was "documented" for conduct
which he claims was acceptable when performed by others, and
Porper had her responsibilities diminished. See Def. SOF at ¶¶
74, 138, 160, 178 and Ex. 5; Porper Dep. at 194. This nexus in
time is sufficient to infer a causal connection. See Raniola,
243 F.3d at 624 (holding prima facie case established where
plaintiff filed EEOC charges in July 1995 and was subsequently
terminated in September 1996); Vernon 154 F. Supp.2d at 859
(holding causal connection existed where the "downgrade in
Vernon's [performance rating] occurred four months after the
start of Port Authority's investigation into Vernon's
complaint."); Naftchi, 14 F. Supp.2d at 489 ("[T]he fact that
these actions were taken during the course of the lawsuit
suffices to establish the causal connection for purposes of the
Defendant, as noted, has proffered a legitimate
non-discriminatory reason for its actions, namely that it
disciplined Plaintiffs because they were not performing their
jobs at the appropriate level. See supra Sec. IV.A; Def. Mem.
at 24-25; see also DeCintio, 821 F.2d at 115 ("Appellees
offered evidence showing that DeCintio was fired for gross
misconduct."); Vernon, 154 F. Supp.2d at 859 ("Port Authority
proffers a legitimate, non-discriminatory reason for the
downgrade: that all supervisors were instructed to give more
realistic ratings to all employees.").
On this record, drawing all reasonable inferences in a light
most favorable to Plaintiffs, a trier of fact could reasonably
conclude that "the employer's proffered reasons . . . were not
[its] only reasons and that the prohibited factor was at least
one of the `motivating' factors." Padilla v. Metro-North
Commuter Railroad, 92 F.3d 117, 122 (2d Cir. 1996) (quoting
Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.
1995)). "A plaintiff may establish a[n ADEA] violation even when
a retaliatory motive is not the sole cause of the adverse
employment action, or when there were other objectively valid
grounds for discharge." Raniola, 243 F.3d at 625 (citations
omitted); see also DeCintio, 821 F.2d at 115 ("Even if there
were no dispute as to the impropriety of DeCintio's conduct, the
evidence of retaliatory animus on the hospital's part would
suffice to defeat the summary judgment motion.").
Plaintiffs present evidence that suggests that (1) Plaintiffs
received either poor performance documentations, performance
rating downgrades, or were terminated, after they filed charges
with the EEOC and commenced this lawsuit; (2) criticisms lodged
against Plaintiffs were unjustified and/or unreasonable; and (3)
Defendant sought to hire younger employees of equal or lesser
qualifications. See Def. SOF at ¶¶ 74, 138, 160; 178 and Exs.
4, 5, 7; Porper Dep. at 194; Epstein Aff. at 4-5 and Exs. 0, P,
Q, U, W; Meehan Aff. at Attachs. 3, 5-7, 10; see also Raniola,
243 F.3d at 625 ("The timing of the prosecution, and the
surrounding events all lend support to Raniola's retaliation
C. Motion to Sever
A motion to sever will be denied if plaintiffs' claims (1)
arise out of the same transaction, occurrence, or series of
transactions or occurrences, and (2) have a question of law or
fact in common. See Fed.R.Civ.P. 20(a). These terms "permit
all `logically related claims' by or against different parties
to be tried in a single proceeding." Blesedell v. Mobil Oil
Co., 708 F. Supp. 1408, 1421 (S.D.N.Y. 1989). "The Second
Circuit accords district courts broad discretion in determining
whether to grant separate trials." Lewis, 2000 WL 423517 at
Defendant argues that "the employment decisions made . . .
regarding each plaintiff were based solely upon the individual
circumstances of each plaintiffs' employment," and that even if
joinder is proper, "it would be highly prejudicial to
Kemper. . . ." Def. Mot. to Sever at 1-2. Plaintiffs contend
that "Ms. Pope's actions and conduct towards them is the single
unifying thread. . . ." Pl. Mem. at 25.
Plaintiffs each allege similar discrimination issues, arising
out of the same series of occurrences. Plaintiffs argue "that
they had been injured by the same general policy of permitting
discrimination against [persons over the age of 40]."
Blesedell, 708 F. Supp. at 1422 (denying severance where "all
of the plaintiffs complain of sexually discriminatory actions by
. . . their supervisor for a nine-month period, in placing them
on probation and in decreasing their performance ratings.").
Plaintiffs allege similar questions of fact and law, and rely
upon the same statistical and circumstantial evidence supporting
their allegations of age discrimination during Pope's tenure.
See Lewis, 2000 WL 423517 at *3 (denying motion to sever where
"both plaintiffs allege that the same supervisor `aided and
abetted' unlawful discrimination. . . ."); Blesedell,
708 F. Supp. at 1422 ("[C]ourts have found that the discriminatory
character of a defendant's conduct is common to each plaintiffs
recovery. . . ."). "[A]ny prejudice or confusion [that might
occur from trying Plaintiffs' claims before a single jury] can
be remedied by a carefully drafted jury instruction." Lewis,
2000 WL 423517 at *5; see also Blesedell, 708 F. Supp. at 1421
("[T]he Supreme Court has stated that `joinder of claims,
parties and remedies is strongly encouraged.'") (quoting United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130,
16 L.Ed.2d 218 (1966)).
For the reasons set forth above, (1) Defendant's motion to
strike is granted in part and denied in part (and Defendant may
renew any objections to admissibility at trial); (2) Defendant's
motion for summary judgment denied; and (3) Defendant's motion
to sever is denied. The parties are directed to appear in
Courtroom 706, 40 Centre Street on April 22, 2001 at 3:30 p.m.
for a settlement/scheduling conference.
The parties are further directed forthwith to engage in good
faith settlement negotiations prior to the conference.