The opinion of the court was delivered by: David G. Larimer United States District Judge
DECISION AND ORDER INTRODUCTION
Plaintiff Deborah Caskey ("Caskey") brings this action against the County of Ontario (the "County") and John Cooley ("Cooley") (collectively, "defendants"), alleging that defendants discriminated against her with respect to her employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §290. Specifically, plaintiff contends that the defendants subjected her to unlawful discrimination and retaliation on the basis of age.
In lieu of an answer, defendants now move to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6), and in the alternative for summary judgment pursuant to Fed. R. Civ. Proc. 56, on the grounds that Caskey's complaint fails to state a cause of action, and/or that she lacks sufficient evidence to support her claims. (Dkt. #3). Caskey has opposed the motion, and cross moved for additional discovery pursuant to Fed. R. Civ. Proc. 56(f) (Dkt. #7). For the reasons set forth below, the defendants' motion to dismiss pursuant to Fed. R. Civ. Proc. 12(b)(6) is granted in part, and plaintiff's motion for discovery is denied.
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the Court's review is limited to the complaint, and those documents attached to the complaint or incorporated therein by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). The Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of the Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Nonetheless, "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "bald assertions and conclusions of law will not suffice," Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir. 2007), and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. 544 at 570.
I. Defendants' Motion as One for Summary Judgment
Defendants have styled their motion to dismiss, in the alternative, as one for summary judgment pursuant to Fed. R. Civ. Proc. 56. However, issue has not been joined and no discovery has taken place. As such, a summary judgment analysis would be premature at this juncture. The defendants' request for summary judgment in their favor is denied, and the Court will limit its analysis to whether plaintiff has sufficiently stated her claims under Fed. R. Civ. Proc. 12(b)(6). See e.g., Miller v. Wolpoff & Abramson, LLP, 321 F.2d 292, 302 (2d Cir. 2003).
II. Defendants' Request for Paragraphs 13-25 of the Complaint Not to Be Considered
Defendants contend that paragraphs 13-25 of the Complaint, which describe incidents which arose months or years prior to the 300-day "lookback" period preceding plaintiff's administrative charge, should not be considered in assessing her federal claims. Defendants also note that the NYHRL's three-year statute of limitations bars the allegations of paragraphs 13-16 for plaintiff's state law claims.
Plaintiff does not dispute that these allegations are time-barred, and makes no argument that they should be considered as part of a continuing violation, nor does the record suggest that they could reasonably be construed as such. Accordingly, the claims in paragraphs 13-25 will not be considered by the Court for purposes of assessing whether the acts described therein give rise to federal claims, and paragraphs 13-16 will not be considered in assessing whether claims are stated therein under the NYHRL.*fn1
III. Caskey's ADEA Claims
A. Discriminatory Discharge
In order to state a discriminatory discharge claim under the ADEA, a plaintiff must allege facts which tend to show that she: (1) is a member of the protected age group; (2) was qualified for her job; and 3) was discharged under circumstances that give rise to an inference of discrimination. See Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002); Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 399 (2d Cir. 1985). In the age discrimination context, such circumstances include those where a plaintiff was "fired in favor of the retention of younger persons or was fired and replaced by younger persons." Pirone v. Home Ins. Co., 559 F. Supp. 306, 309-310 (S.D.N.Y.), aff'd, 742 F.2d 1430 (2d Cir. 1983).
The plaintiff has alleged that she is an individual over the age of forty, and that she was qualified to perform the requirements of her position as a Finance Clerk I. The Finance Clerk I position was formally abolished by the County on or about April 24, 2009 (Dkt. #1 at ¶34), and plaintiff's employment continued for several weeks thereafter before it was finally terminated. At the same time the Finance Clerk I position was abolished, the County Board of Supervisors created a new position, "Microfilm Machine Operator." Plaintiff alleges that she applied for ...