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Audrey Thompson v. Abvi Goodwill Services

February 7, 2013


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge


This is an action for employment discrimination brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the New York Human Rights Law ("NYHRL"). Now before the Court is Defendant's motion to dismiss the complaint. (Docket No. [#5]). The application is granted.


The following facts are taken from Plaintiff's Complaint (Docket No. [#1]) in this action and are presumed to be true for purposes of this motion. At all relevant times Plaintiff was sixty years of age. Plaintiff began working for Defendant in 1976, and was terminated approximately thirty-five years later, on January 7, 2011.

In 1996, Plaintiff began working in the Finance Department. At the time of events at issue here, Plaintiff's job title was "Finance Administrator." In 2008, "Ms. Sullivan" ("Sullivan") became Defendant's Chief Financial Officer and Vice President. The Complaint does not allege Ms. Sullivan's age. Plaintiff alleges that over the next three years, several incidents occurred, leading up to the termination of her employment, which are indicative of age discrimination. The Court will list those events by the year in which they occurred.


In or about April 2009, at a staff meeting where unspecified employees were present, Sullivan "dropped a bunch of papers on a desk" and "asked all employees to pick a job from the pile and do it, [because] she could not do it all on her own." Complaint ¶ 13. The Complaint does not indicate whether Plaintiff was present at the meeting, what the jobs were, or whether Plaintiff volunteered to take any of the jobs. The following day, a manager, who is unnamed in the Complaint, told Plaintiff that there was "no work" for her to do at that time. A few days later, Plaintiff asked Sullivan why she was not receiving any work assignments, and Sullivan allegedly responded that Plaintiff was "nothing but a low level accountant" and that there was nothing for her to do in the Finance Department. Id. at ¶ 16. During that same meeting, Sullivan asked Plaintiff when she was "going to retire." Id. at ¶ 17.

Approximately six months later, in October 2009, Defendant's Human Resources Manager, Mary Philips ("Philips"), whose age is unspecified, told Plaintiff that she was being "written up" for three separate infractions: 1) making racist comments to a Hispanic co-worker; 2) refusing to participate in a company-sponsored team-building exercise; and 3) rolling her eyes during a recent staff meeting. Id. at ¶ ¶ 19-24. Plaintiff contends that all three of those allegations were false. A few days later, someone, presumably Sullivan, ordered Plaintiff to vacate the office in which she had worked for fourteen years, and to move into another office with three other employees, so that Plaintiff's former office could be used by Sullivan's secretary. Id. at ¶ ¶ 25-26.


More than a year after being evicted from her office, in November 2010, Defendant's "new Comptroller," Cathy Vail ("Vail"), sent an email directing the Finance Department staff to attend a "meet and greet meeting" to "go over the structure of the Finance Department." Complaint at ¶ 27. Plaintiff responded to the email by asking Vail to provide her with an "organizational chart of the Finance Department." Id. at ¶ 28. The actual content of Plaintiff's email is not contained in the Complaint, and therefore it is impossible to assess the tone of the communication. However, Vail characterized Plaintiff's response as being "insubordinate," and she suspended Plaintiff without pay pending a meeting between Plaintiff and Human Resources Director Rosemarie Becher ("Becher"). Id. at ¶ ¶ 30-31. During the subsequent meeting, Becher told Plaintiff that Plaintiff's "work was crappy" and that she made "too much money." Id. at 32. During the same meeting, Becher looked at Plaintiff's personnel file, and asked Plaintiff if she would "consider working at Wegmans full time instead of working for Defendant." Id. at ¶ 33. Becher told Plaintiff that she was not going to "write Plaintiff up" for being insubordinate, but that Plaintiff would need to attend a further meeting "to determine a future course of action." Id. at ¶ 34. Later, though, Plaintiff did receive "an official write-up" for being "rude" to Vail. Id. at ¶ 37. Moreover, at the subsequent meeting, Becher and Philips reduced Plaintiff's schedule from 37.5 hours per week to 30 hours per week, and ordered Plaintiff to attend weekly "coaching" sessions with Philips. Plaintiff contends that the coaching sessions were not helpful, and that Philips admitted that the sessions were "dumb." Id. at ¶ 39.


On January 7, 2011, approximately fifty days after the alleged "rude" email incident, during a coaching session with Philips, Philips told Plaintiff that "she never gets any work in finance because she refused to give up her nutrition billing." Complaint at ¶ 40. Plaintiff maintains that Philip's comment was "false and was the first time [she] had ever heard anything of the sort from management." Id. at ¶ 40. In response, Plaintiff told Philips that her statement was "a lie." Id. at ¶ 41 ("Plaintiff told Philips that her allegation was a 'lie.'"). Later that same day, Plaintiff was summoned to a meeting with Sullivan, Vail and Mike Flatt ("Flatt"), a Human Resources Representative, where she was fired, purportedly for calling Philips a liar: "Plaintiff was informed that she was being terminated, effective immediately, because she had said that her manager lied earlier in the day." Id. at ¶ 44.

The Instant Action

After pursuing her administrative remedies, Plaintiff commenced this action, alleging age discrimination in violation of the ADEA and NYHRL. Defendant subsequently filed the subject motion to dismiss. The motion was fully briefed, and on January 31, 2013, ...

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