Upon the foregoing papers, the motion for summary judgment of defendant THE BANK OF NEW YORK MELLON CORPORATION is granted.

Plaintiff MARISSA CARBONARA commenced this action to recover damages for injuries sustained as a result of the alleged wrongful termination of her employment by defendant THE BANK OF NEW YORK MELLON CORPORATION (hereinafter defendant) on the basis of her pregnancy.

By way of background, plaintiff began her employment with defendant in May of 2006 as a Senior Administrative Assistant in the Client Servicing Division. In December of 2012, she advised defendant that she was pregnant and was due to deliver on or about June 20, 2013. On February 25, 2013, when plaintiff was six months pregnant, her employment was terminated as a result of an alleged "downsizing" of the company. Plaintiff was given a Letter Agreement and General Release providing for 14 weeks of pay through June 14, 2013, and the continuation of health insurance benefits through June 30, 2013. According to the complaint, a total of eight employees were terminated, but plaintiff was the only pregnant employee. Plaintiff alleges that her record indicates six years of exemplary employment at the company, and that on other occasions when there was "downsizing" within the firm, she was always offered lateral transfers and comparable job offers. Moreover, during this particular downsizing, plaintiff claims that there were other open positions substantially similar to hers', but that she was not given the option of applying for any of them prior to being terminated.

In the current action, plaintiff alleges, inter alia, that defendant violated both State and City Human Rights Laws (Executive Law §290, and section 8-101 of the New York City Administrative Code), by denying her equal terms and conditions of employment and unlawfully terminating employment due to her pregnancy.

Defendant now moves for summary judgment dismissing the complaint on the ground that plaintiff has failed to make a prima facie case that she was discriminated against on the ground that she was pregnant. Defendant contends that it terminated plaintiff's employment, as well as that of five other non-pregnant women and two men, in connection with a department-wide reorganization plan aimed at reducing compensation costs. This was to be accomplished by either terminating full-time employees or transferring their work from higher cost business centers, like Manhattan and New Jersey, to lower cost business centers, such as Wilmington, Delaware or Orlando, Florida.

At the time of her termination, plaintiff was one of only two senior administrative assistants in her department. Plaintiff worked in the New York office, while the other administrative assistant worked in the Delaware office. According to defendant, in conformity with the parameters of its reorganization plan, plaintiff's supervisor concluded that there was only enough work for one administrative assistant, and since plaintiff worked in a high-cost area (i.e., New York), and the other assistant worked in the low cost area (i.e., Delaware), it was determined that plaintiff's position would be terminated and her work reassigned to the administrative assistant in Wilmington.

According to defendant, there is no proof that plaintiff was terminated because of her [*2]pregnancy other than her speculative assertions, which have no basis in fact and are totally contradicted by its records. Insofar as she claims that there were other administrative assistant positions open within the company prior to her termination, defendant contends that none of these positions were within plaintiff's department, nor did she apply for any these positions. Moreover, none of the other terminated employees applied for or obtained new positions prior to or following their termination of employment. Finally, defendant maintains that plaintiff was initially identified as a reduction-in-force candidate months before she announced her pregnancy, and that her position has not been reinstated or refilled since her termination.

In support of the above, defendant submits, inter alia, the affidavit of one of the employees involved in the reorganization planing, i.e., its Human Resources Business Partner Kristen Traver, who explained that plaintiff's employment was terminated as part of the implementation of an internal "reorganization plan". According to Ms. Traver, the elimination of various jobs was implemented in order to reduce compensation costs. It was also explained that the elimination of plaintiff's position was originally considered as far back as May of 2012, but she was not terminated at the time. To the contrary, it was not until February of 2013, that defendant's management team decided to move forward with the reorganization plan, which resulted in the termination of plaintiff's employment and that of seven other employees.

More specifically, Ms. Traver explained that she and plaintiff's supervisor, Scott Kern, met with plaintiff on February 25, 2013, to inform her of her termination as part of the workforce reduction. Moreover, while conceding that there were 11 administrative assistants and 11 senior administrative assistants who were not terminated, Ms. Traver affirmed that none of these employees worked in the Client Services Division, as did plaintiff. In addition, 14 of the 22 retained administrative assistants had more seniority than plaintiff, and each had received the same or better performance evaluations.

Ms. Traver further affirmed that during her termination meeting with plaintiff on February 25, 2013, the latter was advised that she could apply for any of the open positions posted on defendant's Career Opportunities/Job Posting Program Website. According to the affiant, it was bank policy that any employee who was interested in one of the open positions listed on the website had to submit an application in order to be considered. In addition, while plaintiff made inquiry at the time of her termination regarding a vacant position for an administrative assistant in the Global Financial Institutions Division, she was advised that she could apply for that position, but apparently never did. Neither did she apply for any of the other vacant positions listed on the website. In any event, the filling of the administrative assistant position in the Global Financial Institutions Division was subsequently put on hold, and has never been filled. Ms. Traver also affirmed that plaintiff's former position was never filled, nor was she ever replaced by another employee. Instead, her duties were assumed by the senior administrative assistant in Wilmington. According to Ms. Traver, the bank is still in the process of implementing its reorganization plan, pursuant to which 13 additional employees were terminated in 2013.

In response to plaintiff's claim that during previous downsizings, she had been laterally transferred to other "open" positions, defendant points to so much of plaintiff's contradictory EBT testimony wherein she admits that she was never transferred out of the Client Services Division, and had never been laterally transferred to another position (see Defendant's Exhibit C, [*3]Plaintiff's EBT, pp79-81).

In further support of its motion, defendant submits various documents, including (1) copies of defendant's hiring policy; (2) the Career Opportunities/Job Posting program; (3) emails and other correspondence regarding defendant's reorganization plan; (4) a list of employees who were terminated or retained at the time of plaintiff's employment termination, and (5) a chart illustrating the hierarchy of employees on the Client Service Team. Defendant also submits the affidavits of several of the employees who were terminated at the same time as plaintiff, each of whom verifies that prior thereto, it was explained that he or she would have to apply for any open positions posted on the company's website in order to be considered for same. According to defendant, since downsizing protocols were applied uniformly to both pregnant and non-pregnant employees, no inference of discrimination can be drawn from plaintiff's termination. Defendant also argues that there is no proof that plaintiff was treated differently than any other employee. As for plaintiff's attempt to infer discrimination by comparing her credentials to those of the administrative assistants who were not terminated, defendant reiterates that those employees were either working in a different department or reported to a different supervisor. Equally ineffective is plaintiff's unsupported claim that she had greater seniority or better performance evaluations than administrative assistants who were retained.

In sum, defendant argues that plaintiff has not met her initial burden of establishing a prima facie case of discrimination, and that even if she had, defendant has satisfactorily proffered a legitimate, non-discriminatory reason for plaintiff's termination. Additionally, it is claimed that plaintiff has failed to satisfy her burden of raising a triable issue as to whether the reasons proffered by defendant were merely a pretext for discrimination against her.

In opposition, plaintiff contends that she has demonstrated sufficient facts to raise triable issues of fact as to whether, e.g., her termination occurred under circumstances giving rise to an inference of discrimination, and (2) whether defendant's alleged non-discriminatory reason for her termination is credible. Furthermore, plaintiff maintains much of defendant's case rests on the credibility of its witnesses (especially Ms. Traver), and that only a jury can determine if defendant's explanation is worthy of belief and/or resolve the issue of whether or not plaintiff's pregnancy was a motivating factor in terminating her employment. Accordingly, plaintiff argues that the facts do not support defendant's claim that there was a legitimate reason to terminate her employment.

In particular, plaintiff notes that as soon as she announced her pregnancy, her responsibilities with regard to the newly instituted "Dashboard Project" were diminished, and that a part-time employee was hired to assume her duties in connection therewith.^[FN1] In addition, plaintiff argues that defendant posted four job openings for positions with the same title, i.e., senior administrative assistant, several days prior to her termination. While defendant argues that [*4]company policy would have required plaintiff to apply for those positions if she wanted to obtain one, plaintiff counters that company policy also dictates that posted positions have not been filled through internal hiring. Accordingly, plaintiff maintains that she could have been transferred to one of these positions at the time of her termination without the necessity of completing an application. However, that did not happen. In reply, defendant states that, in any event, plaintiff did not qualify for those positions, which were in a completely different department. Plaintiff disagrees to the extent of arguing that the job description for these "open" positions mirrored her own job description.

Insofar as defendant claims that plaintiff was terminated as a result of "cost-cutting", plaintiff argues that after her termination, two employees were promoted within her supervisor's unit, and that a new employee was hired. According to plaintiff, this negates any claim that her termination was a part of a plan to reduce compensation costs. In addition, plaintiff points to the timing of her termination, approximately six weeks after she announced that she was pregnant, as sufficient to raise an inference of discrimination. Taken together, plaintiff contends that the temporal proximity between her termination and the announcement of her pregnancy gives rise to a triable issue of fact regarding a discriminatory reason for her termination. The Court disagrees.

Here, it is the opinion of this Court that defendant has successfully established its prima facie right to judgment as a matter of law on the claim of discrimination brought by plaintiff. In opposition, plaintiff has failed to rebut this showing, or raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562).

It is well settled that in order to prevail on a motion for summary judgment in a case such as this, a defendant must demonstrate either (1) plaintiff's failure to establish every element of intentional discrimination, or (2), having offered legitimate, nondiscriminatory reasons for the challenged actions, no material issue of fact has been raised as to whether said explanations were pretextual. Under such circumstances, summary judgment has been said to constitute "a highly useful devise for expediting the just disposition of a legal dispute for all parties and conserving already overburdened judicial resources" (Matter of Suffolk County Dept. of Social Servs. [Michael V.] v. James M., 83 NY2d 178, 182).

Under both the State and City Human Rights Laws, a plaintiff carries the initial burden of establishing a prima facie case of discrimination by demonstrating that he or she (1) is a member of a protected class; (2) was qualified to hold the position; (3) was the subject of termination or suffered another adverse employment action; and (4) said adverse action occurred under circumstances giving rise to an inference of discrimination (cf. Ferrante v. American Lung Ass'n., 90 NY2d 623, 629). If satisfied, the burden then shifts to the defendant/employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" (id. [internal quotation marks and citations omitted]). At this point, it is generally unnecessary for a plaintiff to prove that any of the presumptively legitimate reasons proffered by the defendant were merely a pretext for discrimination, i.e., that the stated reasons were false and that discrimination was the real reason for the employer's actions (id. at 629-630). Rather, a plaintiff need only show that there is a material issue of fact as to (1) whether the defendant/employer's asserted reason for the challenged action is false or unworthy of belief, and (2) it is more likely than not that discrimination (here, against a pregnant woman) was the real [*5]reason for her termination (id. at 630). However, as in all summary judgment motions, conclusory allegations of discrimination are insufficient to avoid dismissal (see Dickenson v. Health Mgt. Corp. of Am., 21 AD3d 326, 329).

Here, while plaintiff alleges that she was terminated because of her pregnancy, it is the opinion of this Court that defendant has set forth legitimate, non-discriminatory reasons for her discharge, i.e., a well-documented, company-wide restructuring and cost-cutting plan that affected a majority of employees, male and female, who were not pregnant. In opposition, plaintiff has failed to raise triable issues of fact establishing that defendant's reasons for her dismissal were (1) false, and (2) merely a pretext for discrimination (see Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 308).

At bar, defendant has submitted prima facie evidence that plaintiff was terminated during the implementation of the firm's cost-cutting plan, which required each of its various departments to reduce compensation costs by reducing its head count, and/or moving its work to a lower-cost location. In this regard, the unrebutted EBT testimony of Dennis Westley indicates that (1) there was an insufficient amount of work to justify the need for two senior administrative assistants in the Client Services Division; (2) plaintiff's salary was higher than that of her opposite number in the Wilmington office; and (3) the Wilmington assistant could absorb plaintiff's work.

Moreover, Westley's unrebutted testimony further indicates that plaintiff's position had been selected for termination several months before the announcement of her pregnancy in December 2012, and that her termination, which occurred in February of 2013, was part of the bank's plan to reduce personnel costs by eliminating redundancy in the work force and transferring some of the work to lower-cost locations. Furthermore, this proof is sufficient to rebut any claim of temporal proximity with regard to the announcement of plaintiff's pregnancy and the termination of her employment (see Forrest v. Jewish Guild for the Blind, 3 NY3d 313 [plaintiff cannot avoid summary judgment merely by pointing to an inference of causality based on a sequence in the timing of certain events]). In opposition, plaintiff has submitted no proof that would indicate that defendant's reasons were false or misleading. In this regard, it bears noting that plaintiff does not claim that any of the other employees terminated in 2013 were pregnant or were subsequently rehired.

As for plaintiff's claim that there were other positions available within the company to which she might have been transferred at the time of her termination, her admission that she never attempted to apply for any of these positions serves to negate any inference of discrimination attributable thereto.

Where a plaintiff, as here, fails to raise any triable issue of fact as to whether the nondiscriminatory reasons given for her termination were either false or unworthy of belief, summary judgment is appropriate (see Ferrante v. American Lung Assn., 90 NY2d at 631; Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439, 441),

Accordingly, it is

ORDERED that motion for summary judgment of defendant THE BANK OF NEW YORK MELLON CORPORATION is granted and the complaint is dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

/s/ Philip G. MinardoJ.S.C.