From DeFreitas v. Bronx Lebanon Hosp. Ctr., 2019 NY Slip Op 00375 (App. Div. 1st Dept. Jan. 22, 2019):
In opposition to defendant’s motion for summary judgment dismissing the complaint alleging age discrimination in employment, plaintiffs met their burden under the New York State Human Rights Law (Executive Law § 296[a]) of showing that a material issue of fact exists as to whether defendant’s stated reason for terminating DeFreitas’s and Walker’s employment is false or unworthy of belief and that more likely than not their age was the real reason (see Ferrante v American Lung Assn., 90 NY2d 623, 630 ).
While defendant claims budgetary reasons for terminating DeFreitas and Walker, who were patient care managers (PCMs), there is evidence that off-shift PCMs did not experience a reduction in force (RIF) and that new, younger individuals were hired. An issue of fact exists as to whether the new employees replaced plaintiffs (see e.g. Ashker v International Bus. Machs. Corp., 168 AD2d 724 [3d Dept 1990]). Defendant relies on a chart prepared by Dr. Jeanine Frumenti, vice president of the nursing department, showing that plaintiffs’ positions were eliminated (see Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 124 [1st Dept 2007]). However, Frumenti prepared the chart after her deposition, and the chart does not indicate the source of the information.
Issues of fact also exist as to the performance evaluation forms on which defendant relies and as to the way the RIF was conducted. Cindy Elliott’s testimony echoes DeFreitas’s claim that Elliott was an unsuitable evaluator of her work, and Prissana Alston, who evaluated Walker, could name no employee other than Walker whose evaluation, during the period 2008 to 2010, was revised by Frumenti. As to the RIF, there is evidence that, after DeFreitas and Walker were terminated, significantly younger probationary employees remained employed