From Grasso v. EMA Design Automation, 14-4109 (2nd Cir. Oct 28, 2015):
It is undisputed that between 2009 and 2011, defendant experienced the effects of an economic recession that caused its revenues to decline and led to cuts to its workforce, including the termination of more than a quarter of its employees between 2009 and 2010. Defendants stated that the reason plaintiff’s position was eliminated was because of this financial distress and because they realized they could operate efficiently without plaintiff’s position.
Moreover, it is further undisputed that plaintiff turned down defendant’s offer of a different position after her original position was eliminated and that plaintiff had not been coming to work in the days leading up to her termination despite a doctor’s note stating she could return.
A company-wide reduction in force is a legitimate non-discriminatory reason for employment termination, see Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014), and refusal to appear for a job or perform job duties is a legitimate, nondiscriminatory reason for adverse employment action, see Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). Plaintiff’s position was eliminated as part of a reduction in force due to economic concerns, she refused to accept the new position that was offered to her, and she was no longer coming to work. Plaintiff points to no record evidence that defendants’ legitimate reasons for her termination were pretextual.
Although plaintiff is correct that the elimination of her position and her subsequent termination were close in time to her filing the discrimination complaint,[1] this is not enough to raise a triable issue of fact as to pretext.