Finally, although younger than Ulrich, Tremblay, like Ulrich, was in fact over forty for the majority of his tenure at Moody's, (Nuccio Decl. Ex. 76), a fact that militates against any suggestion that Ulrich was paid less than Tremblay because of his age. See McIntyre, 658 F. Supp. 2d at 415-16; cf. Wood v. N.Y.C. Transit Auth., No. 11-CV-3560(PKC), 2015 WL 1469398, at *9 n.15 (E.D.N.Y. Mar. 30, 2015) (the comparator "is not outside Plaintiff's protected class and thus cannot be a comparator.").

Plaintiff originally claimed that he was also wrongly passed over for a 2014 promotion, but he has withdrawn that claim. In determining how to fill open spots for promotion, the TA uses the familiar "one in three" rule outlined in New York Civil Service Law § 61. The operation of the rule has been described in detail in many cases, see, e.g., Wood v. N.Y.C. Transit Auth., No. 11-cv-3560, 2015 WL 1469398 (E.D.N.Y. March 30, 2015), and I will not repeat that discussion here, as the parties are largely in agreement as to how it applied in plaintiff's case except for the final stage. Suffice to note that qualified individuals are put into a group, or cluster, of three, and if they do not qualify as a finalist as compared to the other two in their cluster, they drop into another cluster of three to see how they compare in that cluster; if they do not qualify as a finalist in that second cluster, they drop into one more cluster of three, and if they do not prevail over the other two in that cluster, then they do not make it to final consideration.