Shaughnessy v. Scotiabank

1

MICHAEL SHAUGHNESSY, Plaintiff, v. SCOTIABANK, ET AL., Defendants.

No. 22 CV 10870 (LAP)

United States District Court, S.D. New York

March 29, 2024

OPINION & ORDER

LORETTA A. PRESKA, Senior United States District Judge

The Bank of Nova Scotia (“Scotiabank”), Kay Lazidis Michael Trombly, and Elyssa Herman (collectively “Defendants”) move,^[1]pursuant to Federal Rules of Civil Procedure (“Rules”) 12(b)(1) and 12(b)(6), to dismiss Michael Shaughnessy's (“Plaintiff”) claims under New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, et seq., and New York City Human Right Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq. Defendants also move, pursuant to Rule 26(d), for expedited discovery to determine Plaintiff's employment status. Plaintiff opposes both Defendants' motion to dismiss and motion to expedite discovery.^[2] For the following reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part, and Defendants' motion for expedited discovery is DENIED.

I. Background

The facts below are drawn from Plaintiff's amended complaint. (See Am. Compl. (“Amended Complaint” or “AC”), dated Apr. 28, 2023 [dkt. no. 19].) The Court accepts as true all factual allegations in the Amended Complaint and must draw all reasonable inferences in favor of Plaintiff.

A. Factual Background

Plaintiff was 61 years old when he was denied a Director-level role at Scotiabank, a multinational banking and financial services company. (See AC ¶¶ 1-2, 53.) In June of 2019, Plaintiff joined Scotiabank's New York City-based U.S. Program Management Organization (“PMO”), which led regulatory and business initiatives for Scotiabank. (Id. ¶¶ 18-19.) Plaintiff came to the role with 37 years of experience in derivatives, securities, and banking. (Id. ¶ 18.)

Plaintiff alleges that, even though he was hired as an independent contractor through a third-party company called Procom, he “functioned as a Scotiabank employee in all relevant facets.” (Id. ¶ 20.) Between 2019-2021, Plaintiff was assigned to work in Scotiabank's office located at 250 Vesey Street in Manhattan, New York. (Id. ¶ 24.) Plaintiff carried a full-time workload “exclusively” for Scotiabank and could not have held other employment. (See id. ¶¶ 34-35.) Plaintiff's primary responsibilities included planning, executing, and monitoring projects, and Plaintiff was assigned to work with other members of the PMO group as well as other employees at Scotiabank. (Id. ¶ 38.)

There, Scotiabank instructed Plaintiff how to perform his responsibilities, oversaw the terms and conditions of his work, and treated him in the same manner as it treated its rank-and-file employees. (Id. at ¶ 40.) Scotiabank provided Plaintiff a copy of the employee handbook and equipment, including a laptop, IT-network/server, templates, and software, and it required Plaintiff to communicate through his Scotiabank email account. (Id. ¶¶ 40, 43.)

Scotiabank determined Plaintiff's hours, including responding to requests for time off and holidays. (Id. ¶36.) Plaintiff reported to Scotiabank employees, who assessed his work and assigned him projects. (Id. ¶ 41.) He attended weekly meetings with the PMO group and Defendant Elyssa Herman, the “Vice President, PMO,” whom Plaintiff alleges had “authority to hire, terminate, and affect” his employment. (See id. ¶¶ 15, 42.)

In March of 2020, the COVID-19 pandemic reached New York City. Scotiabank closed its offices and, on March 16, 2020, mandated that the PMO group work remotely until further notice. (Id. ¶¶ 24-25.) On March 20, 2020, then-New York Governor Andrew Cuomo required businesses other than those providing “essential” services to close all in-person offices and to keep 100 percent of their workforces at home. (Id. ¶ 26.) Accordingly, Plaintiff began to work remotely from his home in Fairfield County, Connecticut. (Id. ¶¶ 10, 27.)

While working remotely in Connecticut, Plaintiff continued to pay New York State and City taxes for 2020 and 2021. (Id. ¶ 28.) Plaintiff alleges that at no point did Scotiabank notify him that he was “anything but a New York [S]tate and City-based worker.” (Id. ¶ 30.) Between 2020 and 2021, Plaintiff's contract was renewed three times due to Plaintiff's “strong and consistent performance.” (Id. ¶ 48.)

In March of 2021, Defendant Herman informed Plaintiff that she wanted him to fill one of two vacant Director positions within the PMO group. (Id. ¶ 49.) On March 29, 2021, Plaintiff accepted the offer. (Id. ¶ 50.)

On March 31, 2021, Plaintiff attended a video meeting with the Scotia Capital (USA), Inc. Management Committee. (Id. ¶ 51.) Also in attendance were Defendants Kay Lazidis, the Managing Director and Chief Operating Officer of U.S. Global Capital Markets, and Defendant Michael Trombly, the Director and U.S. Chief Operating Officer of Equities. (Id. ¶ 52.) Plaintiff had worked with Defendants Lazidis and Trombly on two prior projects but had never met them face-to-face. (Id.) As Plaintiff alleges, this video meeting was the first time that Defendants Lazidis and Trombly (whom Plaintiff alleges to be in their 30s and 40s, respectively) saw Plaintiff - “a then 61-year-old man with gray hair.” (Id. ¶¶ 52-53.)

After the March 31, 2021 meeting, Defendants Lazidis and Trombly began to criticize Plaintiff's work for the first time in Plaintiff's tenure and to assign him unreasonable deadlines. (See id. ¶¶ 54-57.)

On April 20, 2021, Plaintiff asked Defendant Herman when his promotion would take effect, and she replied that his compensation package was still under review. (Id. ¶ 59.) On May 13, 2021, just weeks later, Defendant Herman announced that a woman in her 40s would instead fill one of the vacant Director positions. (Id. ¶ 60.)

Four days later, on May 17, 2021, Plaintiff complained internally to the Vice President and Head of Regulatory and Business Initiatives that he believed Defendants Herman, Lazidis, and Trombly had failed to hire him for the Director role due to his age. (Id. ¶ 62.) Plaintiff was initially permitted to take paid medical leave to treat the acute anxiety and depression that resulted but was informed shortly thereafter that, as an independent contractor, he was ineligible for such benefits. (Id. ¶ 63.)

On July 14, 2021, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) . (Id. ¶ 66.) On August 26, 2021, Plaintiff received notice that Scotiabank had decided to terminate Plaintiff's contract, which was previously scheduled to expire on December 17, 2021, effective as of October 29, 2021. (Id. ¶ 67.) Scotiabank's

PMO group resumed work in person at the New York City office location on November 1, 2021. (Id. ¶ 32.)

B. The Amended Complaint

On December 23, 2022, Plaintiff filed the instant action. (Dkt. no. 1.) On April 28, 2023, Plaintiff filed his Amended Complaint, alleging claims of age discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., the NYSHRL, and the NYCHRL. (See generally AC.) Defendants move (1) to dismiss Plaintiff's State and City law claims, and (2) to expedite discovery with respect to Plaintiff's ADEA claims. (Defs.' Br. at 5-6, 8-11.) Plaintiff opposes Defendants' motion. (See generally Pl.'s Opp'n Br.)

II. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(1)

Pursuant to Rule 12(b) (1), “[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Moreover, on a motion to dismiss for lack of subject matter jurisdiction, “the court accepts all material factual allegations in the complaint as true but does not necessarily draw inferences from the complaint favorable to the plaintiff.” Pedroza v. Ralph Lauren Corp., No. 19-CV-08639 (ER), 2020 WL 4273988, at *2 (S.D.N.Y. July 24, 2020).

B. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief may be granted” where a plaintiff has failed to put forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) . “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In the discrimination context, a “complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss,” but “must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2013) (alterations omitted).

C. Federal Rule of Civil Procedure 26(d)

Federal Rule of Civil Procedure 26(d) provides, in relevant part that a party to a civil action may not seek discovery before the parties have conferred pursuant to Rule 26(f). Fed.R.Civ.P. 26(d). In deciding whether to grant expedited discovery, courts in this district “examine the discovery request on the entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances.” Doel v. Congregation of Sacred Hearts of Jesus & Mary, No. 21-CV-6865 (VSB), 2022 WL 2901403, at *1 (S.D.N.Y. July 22, 2022) (internal quotation marks and citation omitted). In doing so, courts apply a flexible standard of “reasonableness” and “good cause.” Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y. 2007) (quoting Ayyash v. Bank...