In Ophir, Gol v. Koneska Health Inc., 2025 WL 1924081 (S.D.N.Y. July 14, 2025), the court denied plaintiff’s motion to amend his complaint alleging age discrimination.
From the decision:
In its decision dismissing the Complaint, the Court noted that while Plaintiff successfully identified a pay disparity between Koneksa’s two oldest employees and the rest of its employees, this was not enough to substantiate his ADEA claim—he also needed to “show that his compensation would [have been] set higher but for age-related discrimination.” Order at 8. Plaintiff argues that the PAC cures this deficiency by “provid[ing] ample evidence from which Defendants’ discriminatory intent may be inferred.” Pl.’s Mem. at 11.
It is true, as Plaintiff notes, that victims of employment discrimination often do not have the benefit of a “ ‘smoking gun’ attesting to a discriminatory intent,” and instead are “usually constrained to rely on circumstantial evidence.” Id. at 10-11 (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)). It is also true, as Plaintiff further notes, that courts in this District may look to a variety of indica in finding “an inference of age-based employment discrimination,” Ward v. Cohen Media Publ’ns LLC, No. 22 Civ. 6431, 2023 WL 5353342, at *11 (S.D.N.Y. Aug. 21, 2023), such as “the employer’s criticism of the plaintiff’s performance in degrading terms based on a protected characteristic; its invidious comments about others in the employee’s protected group; the more favorable treatment of employees not in the protected group; or the sequence of events leading to plaintiff’s discharge,” Pl.’s Mem. at 11 (quoting Langella v. Mahopac Cent. Sch. Dist., No. 18 Civ. 10023, 2020 WL 2836760, at *7 (S.D.N.Y. May 31, 2020)). Therefore, Plaintiff could have cured the deficiencies in his Complaint by including facts in the PAC giving rise to an inference that he was paid less because he was older than all but one of his colleagues.But the additional allegations in the PAC do not give rise to such an inference. Plaintiff does not point to any instance where Defendant Benko, his employer, made disparaging remarks about Plaintiff’s age. That Benko and other Koneksa employees laughed when Plaintiff incorrectly guessed a different colleague’s age, prompting that twenty-nine-year-old colleague to “feign offense at the suggestion he might be in his 30s,” PAC ¶ 44, does not give rise to an inference that Plaintiff was paid less for his age. Nor does the negative reaction Plaintiff received when he suggested to ELT members that Koneksa should move from a WeWork space to a traditional office space, see id. ¶ 46; the Court agrees with Defendants that comments made pertaining to the startup remaining “young” and “fun” and not acting “old” were just that—comments about company culture that cannot be plausibly read as insults regarding Plaintiff’s age. Each of Plaintiff’s other allegation regarding comments about his age do not involve his employer, Defendant Benko. See, e.g., PAC ¶¶ 47-48 (describing “younger colleagues” as being “openly disdainful to Mr. Ophir due to his age,” and identifying some of those colleagues by name, but not referencing Benko); id. ¶ 50 (stating that a Koneksa employee who was not Benko asked Plaintiff to be in a training video demonstrating how a specific device was used “because the Company needed ‘an older person’ for the video demonstration”). In short, in reading the PAC, it is difficult to find any comments or quotes attributable to Plaintiff’s employer that were critical of Plaintiff’s performance, much less critical comments by Benko regarding Plaintiff’s age.
Several other factors counsel against granting Plaintiff’s Motion. While the PAC does identify that another member of Plaintiff’s protected class—Koneksa employees over forty years old—was also paid below the industry average, see id. ¶ 38, it does not allege that anyone in the company made “invidious comments about” that employee. Nor does the PAC address why the Court should attribute the disparity in pay between ELT members to age discrimination rather than, inter alia, the fact that, as Plaintiff notes, “new ELT members” were hired “with higher base salaries,” PAC ¶ 24, presumably for the nondiscriminatory reason of recruiting new talent. Plaintiff does not identify these “new ELT members” or their age, further counseling against this Court granting Plaintiff’s motion based on pay disparities between him and “new ELT members.” Plaintiff also does not sufficiently address why Defendants increasing other ELT members’ salaries more than they increased his is a function of age rather than, as Defendants claim, retention. See Defs.’ Mem. at 12.
Finally, with respect to the disparity in bonuses and equity, the allegations in the PAC do not sufficiently establish that Plaintiff was compensated less in these areas because of his age. The PAC alleges that “Defendants gave additional grants of equity to other members of the ELT team … all of whom [were] younger than Mr. Ophir.” PAC ¶ 24. This is, again, indicative of a pay disparity, but not of a disparity because of age. The PAC alleges that “Koneska allowed younger employees, such as Mr. Cantor (who is in his 30s) and Mr. Benko (who is 10 years younger than Mr. Ophir), to sell or transfer shares in the company for their personal benefit, whereas Koneska did not permit Mr. Ophir to sell or transfer shares, thus hampering his ability to benefit from the Company’s successes in the same way that his younger colleagues did.” Id. ¶ 27. It does not explain why this disparity is attributable to the age gap between Plaintiff and Messrs. Cantor and Benko, rather than because Cantor and Benko founded Koneksa and Plaintiff did not. And the PAC’s allegations about disparities in the allocation of bonuses are similarly too conclusory to support Plaintiff’s ADEA claim, and also do not explain why any disparity in bonuses should be attributed to age discrimination.
The court concluded that plaintiff failed to cure the deficiencies in his complaint, which presents “stray remarks” which “do not constitute sufficient evidence to support a case of employment discrimination.”