Ulrich v. Moody's Corp.

Full title: PAUL C. ULRICH, Plaintiff, v. MOODY'S CORPORATION and MOODY'S INVESTORS…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Mar 31, 2017

13-CV-8 (VSB) (S.D.N.Y. Mar. 31, 2017)

Opinion

13-CV-8 (VSB)

03-31-2017

PAUL C. ULRICH, Plaintiff, v. MOODY'S CORPORATION and MOODY'S INVESTORS SERVICE, INC., Defendants.

Appearances: Paul C. Ulrich Hong Kong, HK Plaintiff Pro Se Joseph Alan Nuccio Kenneth Joseph Turnbull Morgan, Lewis & Bockius LLP Counsel for Defendants

VERNON S. BRODERICK, United States District Judge

MEMORANDUM & OPINION Appearances: Paul C. Ulrich
Hong Kong, HK
Plaintiff Pro Se Joseph Alan Nuccio
Kenneth Joseph Turnbull
Morgan, Lewis & Bockius LLP
Counsel for Defendants VERNON S. BRODERICK, United States District Judge:

Before me is the motion for summary judgment of Defendants Moody's Corporation and Moody's Investors Service, Inc. (collectively, "Moody's" or "Defendants"), (Doc. 99), and the cross-motion for summary judgment of pro se Plaintiff Paul C. Ulrich ("Ulrich" or "Plaintiff'), (see Docs. 116, 128). Also before me is Plaintiff's request to amend his complaint to add additional claims. (See Docs. 111, 116.)

Because there is no genuine dispute of material fact concerning Plaintiff's age-based discrimination claim and his claims of retaliation with respect to his employment suspension and termination, Defendants are entitled to a judgment as a matter of law as to these claims, and Defendants' motion for summary judgment is GRANTED and Plaintiff's cross-motion is DENIED. Furthermore, Plaintiff's additional claims for defamation, conspiracy, prima facie tort, and aiding and abetting fail and thus his request to add these new claims is DENIED. As a result, this case is DISMISSED.

I. Background ¹

1 The facts in this Background section are undisputed unless otherwise noted. Because each party has filed a motion for summary judgment, I must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in [his] favor, and may grant summary judgment only when 'no reasonable trier of fact could find in favor of the nonmoving party.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citations omitted).

On February 11, 2008, Ulrich, who was 45 years old, was hired by Moody's Investors Service Hong Kong Limited, a Hong Kong-based subsidiary of Moody's Corporation, as a Corporate Finance Group ("CFG") Financial Writer. (Reply 56.1 ¶ 1;² Am. Compl. ¶ 89;³ see also Nuccio Decl. Ex 2;⁴ Ulrich Decl. Ex. 108.⁵) At the time of Ulrich's hiring, Moody's employees commented that he had an "impressive background," "extensive writing experience," and "[c]onsulting experience in economics, finance and technology." (Reply 56.1 ¶ 68; Nuccio Decl. Ex. 3.)

2 "Reply 56.1" refers to Defendants' Reply Statement of Material Undisputed Facts Pursuant to Local Rule 56.1. (Doc. 127.) For ease of reference, I refer to this submission because it incorporates the substance of Defendants' Statement of Material Undisputed Facts Pursuant to Local Rule 56.1, (Doc. 101), Pro Se Plaintiff's Response to Defendants' Statement of Material Undisputed Facts Per Local Rule 56.1, (Doc. 117), Plaintiff's Additional Material Facts, With Citations to Attached Exhibits, (Reply 56.1 at 72-160), and Defendants' Responses to Plaintiff's Alleged 'Additional Material Facts,' (Reply 56.1 at 89-229).

3 "Am. Compl." refers to Plaintiff's Amended and Verified Complaint. (Doc. 26.)

4 "Nuccio Decl." refers to the Declaration of Joseph A. Nuccio, Esq. (Doc. 102.)

5 "Ulrich Decl." refers to the Pro Se Plaintiff's Declaration to Authenticate Exhibits Opposing Defendants' Summary Judgm. Motion. (Docs. 118-121, 124.) Ulrich submitted numerous seemingly identical declarations to which he attached various exhibits. Therefore to avoid confusion and for precision, I reference the specific exhibit and identifying number stamped on the page of the exhibit.

The Financial Writer position required Ulrich to "produce a broad range of original and in-depth reports" and involved, among other things, working with Moody's analysts to "organize and frame their ideas and arguments" and "write clear and readable research including drafting, editing and managing through [the] production process." (Reply 56.1 ¶ 7; Nuccio Decl. Exs. 7, 22.) Ulrich did not have any Moody's employees who reported directly to him at any point during his employment. (Reply 56.1 ¶ 8.) By no later than February 21, 2008, Plaintiff reported to Brian Cahill ("Cahill"), a Group Managing Director based in Sydney, Australia. (Reply 56.1 ¶¶ 1, 2.) Cahill did not interview Ulrich himself, but he was involved in the process that led to Ulrich being hired, and recommended and approved Ulrich's hire.⁶ (Reply 56.1 ¶¶ 1, 2.) A few months after Ulrich was hired, Cahill, in an email exchange with Michael Rowan ("Rowan"),⁷ stated that he believed that Ulrich "appear[ed] more focussed [sic] on equity of titling than salary (based on conversation [Cahill] had with [Ulrich] yesterday)." (Ulrich Decl. Ex. 102 at P-13054.) He added that he had "just reread" Ulrich's CV and observed that Ulrich "looks way over qualified for the role and . . . a little out of place." (Id.) Cahill stated that he thought it was a "mistake" that he did not interview Ulrich during his recruitment, and indicated that he would "be surprised if we hold onto him for long." (Id.) Ulrich reported to Cahill until November 2010. (Reply 56.1 ¶¶ 1, 2.)

6 Ulrich disputes that Cahill "approved" his hire. However, it is clear from a review of the record that Cahill was integral to the hiring process. Specifically, individuals at Moody's requested that Cahill "approve" Ulrich's hire, and Cahill forwarded a "recommendation" that Ulrich be hired. (See Nuccio Decl. Ex. 3.) Plaintiff has put forth no basis to dispute the fact that Cahill recommended and approved his hire. More broadly and as discussed further below, Plaintiff cannot create a dispute of material fact based on immaterial semantic distinctions.

7 Rowan was a senior managing director at Moody's.

Ulrich initially requested HKD⁸ 50,000 per month in salary. (Reply 56.1 ¶ 3; Nuccio Decl. Ex. 4.) Ulrich's starting salary was HKD 528,000 per year (or 44,000 per month), with a target bonus of HKD 39,600, which resulted in a total expected compensation of HKD 47,300 per month. (Reply 56.1 ¶ 4; Nuccio Decl. Ex. 4.) Ulrich was entitled to 20 days of vacation per year, which Ulrich testified he negotiated for after an individual from Moody's human resources gave him the impression that Moody's budget would not allow for a higher initial salary. (Reply 56.1 ¶ 67; see also Ulrich Dep. 78-79.)⁹ G.A. Donovan ("Donovan"), Ulrich's predecessor in the CFG Financial Writer role in Hong Kong, had received the same level of compensation as Ulrich immediately prior to leaving his position at Moody's.¹⁰ (Reply 56.1 ¶ 5; Nuccio Decl. Ex. 5.) During his tenure at Moody's, Ulrich's compensation—salary and expected bonus—was the lowest among CFG and Financial Institutions Group ("FIG") writers. (Reply 56.1 ¶ 88; see also id. ¶ 90.)

8 "HKD" refers to Hong Kong Dollars. Unless otherwise noted, all references to currency are to Hong Kong Dollars.

9 "Ulrich Dep." refers to the Deposition of Paul C. Ulrich, which is attached in full as Exhibit 103 (with errata) to the Ulrich Declaration, (see Docs. 121, 124), and portions of which are attached as Exhibit 1 to the Nuccio Declaration. I refer to both exhibits interchangeably as the "Ulrich Dep."

10 The parties dispute whether salary played a role in Donovan's departure from Moody's. (See Reply 56.1 ¶ 5.) Ulrich received approximately ninety percent of the salary he requested during his hiring process. (Id. ¶¶ 3, 4.)

By as early as May 2008, four months after he was hired, Ulrich expressed at least some dissatisfaction with his pay and job title. (See, e.g., Reply 56.1 ¶ 9.) Ulrich had also begun looking for a new job. (Id. ¶ 6; Ulrich Aff. ¶ 11.)¹¹ On May 16, 2008, Rowan emailed Cahill to tell him that Ulrich had "question[ed] why he [was] in an entry level position" and was "frustrate[ed]" with the level of "minor edits" he was receiving on his drafts. (Nuccio Decl. Ex. 8.) Cahill indicated that he "wouldn't want to lose" Ulrich as he had the "impression" that Ulrich produced good work, and Rowan and Cahill discussed whether higher pay and/or a new job title may incentivize Ulrich to stay at the company. (Id.) On June 3, Ulrich indicated to a colleague that while the "pay is low, . . . [his] wife has a good job, so [he] didn't let that dissuade" him from taking the position with Moody's. (Reply 56.1 ¶ 6; Nuccio Decl. Ex. 6.) Ulrich further explained that he was "still learning a lot and getting good industry-level experience in sectors [he] hadn't worked in before." (Nuccio Decl. Ex. 6.)

11 "Ulrich Aff." refers to Pro Se Plaintiff's Declaration of His Testimony to Oppose Defendants' Statement of Facts. (Doc. 122.)

During the time that Ulrich worked at Moody's his salary was raised incrementally. For example, on June 17, Cahill requested that Ulrich receive a 10% salary and bonus increase, (Reply 56.1 ¶ 10), and Ulrich received this increase as of July 2008, (id. ¶ 11). In discussing this salary increase, Rowan noted that there was "a little bit of flex in" the budget plan, stated that "we'll have to move [Ulrich's] money up over time," and discussed the salaries of potentially comparable employees. (Nuccio Decl. Ex. 10.) Ulrich asserts that he did not receive the full target bonus for 2008, and that he received 100% of the target bonus for 2009. (Reply 56.1 ¶ 11.)

Within the first year of Ulrich's tenure, Cahill discussed with other individuals at Moody's whether Ulrich was a candidate for promotion to an assistant vice president financial writer position. (See, e.g, Reply 56.1 ¶¶ 12, 15; see also Nuccio Decl. Exs. 12, 19.) After his first year, Ulrich received some positive feedback—among other things, Cahill stated that Ulrich had "played a material part in" his team's "continuing improvement" and made "solid progress," and several individuals observed that Ulrich's writing was good. (Nuccio Decl. Exs. 12, 16.) However, Ulrich was identified as needing improvement in other areas; for example, team work, (Reply 56.1 ¶ 15, Nuccio Decl. Ex. 18), using data on which Moody's did not typically rely, and responding to and incorporating colleagues' comments, (see Nuccio Decl. Ex. 16). In addition to summarizing these assessments and noting the "challenges" in "collaboration" and teamwork, Cahill's performance evaluation for Ulrich rated Ulrich a 3 out of 5—i.e. he "consistently met expectations." (Id. Ex. 17.)¹² In March of 2009, Cahill indicated to Rowan that there were "[s]ome team work issues [he would] like to see improvement on" before Ulrich could be promoted. (Nuccio Decl. Ex. 18.) Ulrich asserts that aspects of this feedback were unwarranted or not reflective of his performance. (Reply 56.1 ¶¶ 13, 75.)

12 "Consistently met expectations" is just a summary of the description of performance level 3. The other performance levels are summarized as follows: 1 "[p]erformance consistently falls short of performance expectations"; 2 "performance does not fully meet expectations"; 4 "performance often exceeded expectations"; and 5 "performance was outstanding". (Nuccio Decl. Ex. 17 D-000027.)

In July of 2009, Ulrich stated that he had confirmed that he was "underpaid relative to the other four financial writers" and requested an explanation from Rowan and Cahill. (Nuccio Decl. Ex. 20.) In part as response to Cahill pointing out during a telephone call with Ulrich that the salaries in Hong Kong were lower than the salaries in New York for the same position, Ulrich also indicated that Moody's could address his salary issues by giving him the title of Assistant Vice President ("AVP") and paying him "at the % level that AVPs in Asia Pacific get compared to those in New York and London." (Id.; see also Reply 56.1 ¶ 17.) According to Ulrich, a headhunter was offering more than twice his pay for a comparable position at a different company. (Reply 56.1 ¶ 20.) In response, and after a discussion with Ulrich, Cahill explained that he was looking into the issues raised by Ulrich regarding his pay, but said that he wanted to make clear that salary determinations could not be determined by "rank ordering on a contact sheet." (Nuccio Decl. Ex. 20; see also Reply 56.1 ¶ 16.) In June 2009, Cahill noted that Ulrich had "been doing well this year," and confirmed the request of a 12.5% salary increase for him. (See Nuccio Decl. Ex. 21.) Cahill also asked for data on financial writers' salaries in other geographic markets, and indicated to Rowan that he would follow up with Ulrich regarding a "compression increase." (Id. Ex. 22; Ulrich Aff. Ex. 105.)

In email discussions related to these inquiries with others about Ulrich's salary, Cahill noted, based on the salaries of other Hong Kong editors, that Ulrich was "paid well relative to our editorial team in [Hong Kong]," but New-York based Financial Writers, who were all AVPs or vice presidents, were paid more than Ulrich. (Reply 56.1 ¶ 20; Nuccio Decl. Exs. 23, 24.) Cahill stated that he was aware that Ulrich knew about the salary discrepancy and that Cahill was "somewhat surprised by the discrepancy as well." (Nuccio Decl. Ex. 23.) He also mentioned that Ulrich was talking to a headhunter about a financial columnist position in Hong Kong for a financial publication where the pay range being discussed seemed higher than the comparables Cahill had been provided, and noted that "we lost the previous incumbent to Paul after a year and I recall salary was an issue in that decision as well." (Id.) Cahill also commented in July 2009 that in his view Ulrich was at a "significant risk of leaving and that his value to us has increased significantly in last 6 to 8 months." (Id.) Cahill noted that Moody's typically pays local market rates, but that the discrepancy between Ulrich's salary and the New York Financial Writers was larger than what was typical. (Id.; see also id. Ex. 26.) Cahill continued to look into the salary issues and stated that he may need to ask for more salary, that Ulrich "wants a lot," and that he would need to look into the financials of replacing Ulrich. (Id. Ex. 26; see also Reply 56.1 ¶ 21.)

In September 2009, Cahill expressed to Rowan that Ulrich still had issues with teamwork, but nevertheless had "clear value." (Nuccio Decl. Ex. 27.) Rowan responded by stating that Cahill "need[ed] to figure out how to reward the elements of [Ulrich's] performance that warrant support but also let [Ulrich] know where he has been 'out of bounds'" with regard to his teamwork issues. (Id.)

In the coming months, Cahill solicited feedback from Ulrich's managers regarding his work performance. (Reply 56.1 ¶ 23.) Consistent with prior feedback, this new round of feedback indicated that Ulrich's writing and research were strong, and that: (1) he was improving; (2) he could "do better" in accepting the opinion of analysts and incorporating changes into reports; (3) he was "not easy to deal with"; (4) he had made progress but more progress would have been expected by now; (5) he may not have "Moodys interest at heart"; and (6) he still needed to work on incorporating industry information consistent with Moody's view.¹³ (Nuccio Decl. Exs. 28-33.) After receiving some initial feedback, Cahill requested that certain individuals comment on specific issues—teamwork and "possessive[ness]" over his work—that had been raised. (Nuccio Decl. Ex. 33.)

13 While Ulrich disputes the veracity of the feedback received and Cahill's motivation for soliciting the feedback, he does not dispute that Cahill did in fact solicit and receive feedback. (Reply 56.1 ¶ 23.)

In his October 2009 midyear review of Ulrich, Cahill explained that, "[i]t is important for Paul to recognize that the quality of his work is recognized but equally important is that people feel comfortable with him as a member of the team." (Id. Ex. 35.) Cahill then encouraged Ulrich to reach out to his supervisors regarding specific feedback and informed those individuals that he had encouraged Ulrich to do so. (Id. Exs. 35, 36.)

In January and February 2010, Cahill again requested comments on Ulrich's work performance, specifically asking certain individuals to address the issues identified in Ulrich's October 2009 review. (Reply 56.1 ¶ 25; Nuccio Decl. Exs. 37, 38.) Cahill commented that Moody's would have to make the "call" as to whether to promote Ulrich or "accept we are going to lose him." (Nuccio Decl. Ex. 37.) The feedback was largely consistent with the feedback from prior reviews. For example, one individual noted that the areas of improvement identified by Cahill were "still there," (id. Ex. 38), and another noted that working with Ulrich was "not a particularly 'user-friendly' experience," (id. Ex. 40). As before, the feedback was generally positive about the quality of Ulrich's written work product. (See id. Ex. 37-40.)

Despite these mixed reviews, Cahill recommended to Michael West ("West"), Cahill's supervisor, that Ulrich be promoted to the position of AVP.¹⁴ (Reply 56.1 ¶¶ 26-27; see also Ulrich Decl. Ex. 102 at P-10446-47.) In October 2010, Ulrich became an AVP.¹⁵ (Reply 56.1 ¶ 29.) At the same time, Ulrich's salary was increased to HKD 740,000 per year with a target bonus of HKD 110,000. (Id.)

14 Ulrich suggests that Cahill "undermined" him in an email to West, (Reply 56.1 ¶ 29), but the email does not support that view. Cahill stated that "Paul is talented and adds value. . . . He is very intelligent. . . . On the down side, he has a high opinion of himself, not seen as a team player by some (esp more junior staff), and can be difficult (in our 30 min conversation he told me he was better qualified than anyone else in Moodys Asia, that I was stringing him along and that I was disingenuous!) . . . This held him back from promotion in 2009 but I believe he did adjust his behavior sufficiently to justify promotion this year. His 2009 PE was a 4." (Ulrich Decl. Ex. 102 at P-10446-47 (emphasis added).) Cahill went on to explain that Ulrich was a "flight risk" and that "his leaving would be disruptive and my best guess is we'd need to pay at the AVP level to get his equivalent . . . I'd be sorry to see him go. But not that sorry." (Id. at P-10447.)

15 Ulrich disputes that this was a "promotion." (See Reply 56.1 ¶ 27.) He argues that instead it should be characterized as a "compression." This semantic difference is insignificant; it is undisputed that Ulrich was in fact recommended for the title AVP—a title that he had requested previously and that was higher in the Moody's hierarchy than Ulrich's previous role—and that Ulrich was given that title in October 2010, together with a salary and bonus increase.

In late 2010 or early 2011, Ulrich began reporting to John Forrey ("Forrey"), a managing director in global corporate research. (Id. ¶ 30; see also Nuccio Decl. Ex. 52.) In June 2011, Ulrich sought another salary increase. (Reply 56.1 ¶ 30; see also Nuccio Decl. Ex. 47.) In July 2011, Ulrich received a salary increase to HKD 820,000 per year and HKD 123,000 target bonus. (Reply 56.1 ¶ 31; Nuccio Decl. Ex. 93.) Throughout 2011 Ulrich received mixed work related reviews and feedback. For example, in September 2011, Forrey received an email from a United States-based group managing director, Tom Marshella ("Marshella"), in which Marshella, after reading an email sent by Ulrich within an email chain, suggested that Forrey consider having local supervision for Ulrich because the "attitude embodied in this email string is very different than what we are used to in this [sic] U.S. At worst, seems like he is a bit above it all and again, at worst, present[] new impediments and approvals." (Nuccio Decl. Ex. 50.) In a later email to Forrey, Marshella states that "[t]here is a reluctance to use Paul. The word here is that it is hard to get him to focus and he is accountable to no one locally. When he does focus, he does quality work but it is a bit of administrative tango in order to get to that point should one ever have the persistence to progress that far." (Nuccio Decl. Ex. 50; see also Reply 56.1 ¶ 34.)

Consistent with past feedback, Ulrich's January 2011 performance evaluation, for which he received an overall rating of 4 out of 5, indicated that Ulrich had "developed his skills" but "should continue to focus" on "teamwork" as a "development area." (Reply 56.1 ¶ 35; see also Nuccio Decl. Ex. 51.) The next year, in January 2012, Forrey also rated Ulrich an overall 4, noting that Ulrich was "one of the most productive financial writers in CFG during 2011 and was a major contributor." (Nuccio Decl. Ex. 51.) However, Ulrich's teamwork rating remained a 3, but Forrey noted that Ulrich should "continue to build on his improved teamwork." (Id.) Cahill expressed some "surprise" regarding Ulrich's rating of 4, but Forrey explained that "the feedback on him was generally pretty good." (Ulrich Decl. Ex. 102 at 11145.)

In March of 2012,¹⁶ Cahill emailed Forrey concerning a report he reviewed and revised on which Ulrich and "one of the Asian editors" had worked stating that his "opinion is that over 75% of the comments I make should have been picked up and resolved by Paul and the editors." I would very much appreciate you look over what I have done and let me have your view." (Nuccio Decl. Ex. 87.) In frustration, Cahill concluded his email saying that if his views are reasonable then "what [are] Paul [Ulrich] and the editor who looked at [the report] being paid to do." (Id.) Forrey responded, saying that he found Cahill's emails "concerning and certainly shows that Paul did not provide substantial input" and that he was "not sure if [Ulrich] is just going through the motions." (See Nuccio Decl. Exs. 86-89.) Forrey concluded his email stating that "[w]e will need to see quick improvement from him." (Id.)

16 Ulrich makes numerous allegations and presents numerous facts regarding his role in an investigation into a research report concerning Chinese issuers of internationally rated bonds, his role in preventing the publication of a report concerning issuers of Indonesian corporate bonds, and in identifying other potential issues at Moody's. Claims related to those allegations have been dismissed. (See generally Dismissal M&O.) These allegations are not relevant to Plaintiff's remaining claims—both of which relate to age discrimination under the ADEA.

On March 30, 2012, Ulrich learned that he would be required to share an office and requested to share an office with a Mandarin-speaking friend. (Reply 56.1 ¶ 149.) Ulrich claims that the head of Hong Kong's CFG, Gary Lau ("Lau"), agreed, but "presumably" after speaking to Cahill, "reversed himself, citing potential access to material non-public information ("MNPI") as the reason." (Id. ¶¶ 105, 152.) On April 20, Ulrich began sharing an office with an analyst, who Ulrich states was "noisy" and "was always on the phone and often giggling." (See id. ¶¶ 55, 149, 151-52, 154.) Ulrich thereafter requested that Forrey allow him to work from home. (Id. ¶ 154.)

In early May of 2012, Forrey received additional comments regarding Ulrich's performance in response to an inquiry from Cahill. Specifically, on May 4, a colleague who praised the work that Ulrich did with her team in 2010 and the summer of 2011 noted that there had been a "distinct shift" from 2010 to 2011/2012 in Ulrich's performance and attitude. (See Nuccio Ex. 53 at D-971.) She stated that Ulrich frequently turned down work despite leaving the office at 5:30pm, "adopted the role of editor," leaving the analysts to write the bulk of the research; and had pushed additional work down to analysts and other members of the team. (Id. at D-971-72.) On May 7, another co-worker wrote that he agreed with this assessment and added that "[Ulrich's] level of interest is obviously not high," he was "not easy to work with," he turned away work claiming to be "too busy, but [it was] hard to reconcile why he [was] so busy," he had "acted inappropriately in the office sitting arrangement," and that "[h]is work is varied and depends on his level of commitment and interest." (Id. at D-970.)

On May 9, 2012, during a phone call in which Forrey discussed this feedback with Ulrich, Forrey also notified Ulrich of his decision not to allow Ulrich to telecommute twice a week. (See Reply 56.1 ¶ 39; see also Ulrich Dep. 70-71.) On the call, Ulrich states that he told Forrey that Cahill had engaged in a "long-standing" pattern of discrimination and retaliation toward Plaintiff.¹⁷ (See Reply 56.1 ¶ 39; Am. Compl. ¶¶ 29-32; see also Ulrich Dep. 70.) Ulrich recalled at his deposition that Forrey brought up performance issues Cahill had raised, including that Ulrich was refusing to do work for no reason. (Ulrich Dep. at 70-71; see also Reply 56.1 ¶ 39.)

17 Moody's disputes whether Ulrich raised age discrimination and/or retaliation on this call. (See Ds' Second Reply Mem. at 4 & n.1.)

Following the call, on May 12, Forrey contacted Moody's Human Resources to begin the process of placing Ulrich on a performance improvement plan ("PIP"). (Reply 56.1 ¶ 40.) In initiating the PIP, Forrey noted that he had seen "significant performance issues" with Ulrich, including that Ulrich had refused to do work because he was too busy, was unwilling to draft reports, and had produced below average work. (Nuccio Decl. Ex. 55.) Forrey also noted that he had previously rated Ulrich a 4, but that Ulrich had "regressed to a point where discussing his underperformance is not having a positive result." (Id.)

On May 15, Ulrich called an external hotline regarding complaints of discrimination and retaliation. (See Reply 56.1 ¶¶ 39, 169.)

During May, Forrey received feedback from Cahill regarding two additional draft publications on which Ulrich worked. On May 15, Cahill emailed Forrey stating his dissatisfaction with a report that continued "to require substantial editing", was not "ready for publication in its current state" that Ulrich "reviewed and had no comments on." (Nuccio Decl. Ex. 56.) Cahill further stated: "[Ulrich] has checked out and gone mentally. Time we helped him on his way physically. Frankly, the lack of engagement around this one SC is sufficient to fire him on its own. I don't have time for this." (Id.) On May 29, Cahill emailed Forrey stating that he had reviewed another report that had been reviewed by Ulrich and found "simple grammatical errors"; Forrey complained that, "[Ulrich] obviously thinks it beneath him to correct but not beneath me." (Nuccio Decl. Ex. 57.) Cahill had been previously told that Ulrich reviewed some of the report and not other portions. (Id.)

At some point during the first half of 2012, Ulrich had entered into discussions with Dagong International regarding a new job, (see Reply 56.1 ¶ 37; Ulrich Dep. 52), and by no later than June 21, Ulrich had an offer from Dagong, (see Nuccio Decl. Ex. 54).

The PIP commenced on June 1, 2012. (Reply 56.1 ¶ 42.) The PIP identified three areas in which Ulrich need to improve: productivity, work quality, and teamwork/commitment. (Id.; Nuccio Decl. Ex. 58.) The PIP stated that "[f]ormal PIP review meetings will be held to discus and advise" Ulrich on his progress, and that "[i]f it is considered that your performance has not improved sufficiently or remains unsatisfactory at the conclusion of the PIP, disciplinary action (including dismissal) may be taken against you." (Nuccio Decl. Ex. 58.)

After the PIP commenced, Ulrich continued to press his complaints about age discrimination and retaliation. On June 4, he sent an email to Human Resources, copying, Forrey and West, detailing, among other things, what he described as age discrimination, harassment, and retaliation. (Reply 56.1 ¶ 182; see also Ulrich Decl. Ex. 101 at P-211-19.) On June 15, Ulrich mailed his EEOC complaint. (Reply 56.1 ¶ 189.)

During the period of the PIP, Forrey continued to receive negative evaluations regarding Ulrich. (See Reply 56.1 ¶¶ 45, 46, 48, 49.) For example, on June 15, Lau stated in an email to Cahill and Forrey that his "team [was] fed up with Paul's emails" and that they "were not moving forward on a constructive basis."¹⁸ (Nuccio Decl. Ex. 59.) In response, Forrey characterized Ulrich's tone in the emails as "adversarial" and noted that "he is off base with his points/questions." (Id.) Forrey did, however, note one area in which he agreed with Ulrich's comments—that Ulrich should be included earlier in the drafting process—but explained that "perhaps he wasn't included earlier because he is viewed as an obstacle instead of a resource." (Id.) On June 20, Cahill instructed Forrey and Human Resources to remove Ulrich's 3.8% mid-year salary increase because he was on a PIP and was rated a 2 on the performance evaluation scale, and Forrey confirmed that Ulrich should not receive a salary increase. (Id. ¶ 191; Ulrich Decl. Ex. 197.) On June 25, Lau again emailed Forrey and Cahill stating that Ulrich's comments and edits were "not very helpful" and did not address Cahill's comments. (Id. Ex. 59; see also Reply 56.1 ¶ 46.)

18 Lau forwarded emails from Ulrich and included them as part of his email to Cahill and Forrey.

Ulrich disputes Lau's characterization of his work, and claims that Lau presented a "clean" copy of a report—versus a marked-up draft—as part of an ongoing scheme, dating back to at least March 2012, to "frame and defame" Ulrich by enabling Cahill to misrepresent Ulrich's work on reports. (See id. ¶ 46; see also, e.g., id. ¶¶ 41, 139, 141.) Ulrich also generally disputes the need for the PIP and that his performance needed improvement, (Reply 56.1 ¶ 44), and states that he "continued to perform exactly as I had done in the past with regard to non-MNPI information." (Ulrich Dep. 311.)

On June 28, the EEOC mailed, and Moody's received, Ulrich's unperfected charge. (Reply 56.1 ¶ 192.) Moody's received Ulrich's perfected EEOC charge less than a month later, on July 20. (Id. ¶¶ 51, 192.)

In a July 31 performance report¹⁹ Forrey noted some analysts had bypassed Ulrich to avoid working with him; that Ulrich's work was "inconsistent" despite it being a light period for research activity in the Asia-Pacific region; that his performance had been "viewed as unhelpful," that Ulrich did not address issues that were raised with him; that his work had been "counterproductive" on one project; that Ulrich had been "condescending," "confrontational and not constructive"; and that Ulrich's approach to email was "inefficient, disrespectful and did not foster teamwork." (Nuccio Decl. Ex. 64; see also Reply 56.1 ¶¶ 50, 188, 197-98.)²⁰ Following this report, Forrey extended the PIP to October 16, 2012. (Nuccio Decl. Ex. 65.) The extended PIP, dated August 17, 2012, indicated that Ulrich's productivity, quality of work, and teamwork "remain[ed] unsatisfactory." (Id.)

19 Several drafts of this report are part of the record.

20 Ulrich suggests that these assessments involved Forrey's "misreading of 'tone'" and arose from Ulrich's efforts "to keep Moody's from violating SEC regulations on using a changed sector methodology without proper notification to investors." (Reply 56.1 ¶ 188.) Ulrich also suggests that Forrey was pushed into making his feedback more negative than it had initially be drafted. (See, e.g., id. ¶¶ 197-98.) The record does not support that view; although Forrey did revise the interim performance evaluation, the differences in the drafts are not substantial (Ulrich himself refers to them as "twists of phrase") and there is nothing suggesting that Forrey's evaluation was manipulated by anybody else.

During the extended PIP period, Forrey also received emails stating that Ulrich had raised issues related to reports containing MNPI. (See Reply 56.1 ¶¶ 47, 48.) On July 9 Moody's posted a new policy requiring all employees with access to MNPI to divest certain securities holdings.²¹ (See Nuccio Decl. Ex. 67.) Shortly after learning of this policy, Ulrich expressed concerns about the policy as a whole, as well as its application to him personally. (Id.) Ulrich claims that after he requested a waiver, assignments that included MNPI was "dump[ed]" on him. (Reply 56.1 ¶ 193.) On August 15, Philipp Lotter ("Lotter"), a manager at Moody's, emailed Forrey stating that Ulrich had asked to be removed from working on a report because the report contained MNPI. (Id. ¶ 47.) The next day, August 16, Nidhi Dhruv, a Moody's analyst, complained of Ulrich's "unacceptable" "explanations and lack of co-operation" regarding a report containing MNPI. (Reply 56.1 ¶ 48; Nuccio Decl. Ex. 62; Ulrich Decl. Ex. 101 at P-243-49.) Forrey also continued to receive complaints about Ulrich from Cahill: On August 27, Cahill complained of "basic style issues" Ulrich and the analysts working with him should have picked up on, (Reply 56.1 ¶ 49), and on August 29, Cahill emailed Forrey asking him to confirm that he agreed with Cahill's assessment of Ulrich's work, which Cahill found "disappoint[ing]" and requesting that Forrey highlight these issues to Ulrich, (Nuccio Decl. Ex. 63).

21 Ulrich claims that he should not have been designated a "Category B" employee (one with "routine" access to MNPI), but instead should have been designated a "Category C" because he had "sporadic" access to MNPI, (Nuccio Decl. Ex. 67), but Ulrich does not dispute that he had access to MNPI. Moreover, the record shows that the new policy's purpose was to "expand restrictions beyond an individual's area of analytic responsibility," (id. Ex. 69), and that Forrey supported Ulrich's request for a waiver, (Reply 56.1 ¶ 54).

On that same day, Forrey emailed Ulrich, explaining that Ulrich was still performing below his expectations, and that Forrey was "very disappointed" that Ulrich had turned down work assignments containing MNPI without consulting him. (Reply 56.1 ¶ 52; Nuccio Decl. Ex. 68.) Forrey made clear that Ulrich was expected to work on reports containing MNPI and should not turn down work without speaking to Forrey first. (Nuccio Decl. Ex. 68 at D-3289.) After receiving Forrey's email, Ulrich emailed Lotter, the manager of an analyst Ulrich had previously requested not send him MNPI, to reiterate his request that he not be sent work involving MNPI. (Nuccio Decl. Exs. 70, 94, 97.)

On August 30, Ulrich emailed Forrey about Forrey's direction that Ulrich work on reports containing MNPI despite Ulrich's request that he not be required to do so. (Id. Ex. 68.) Ulrich agreed to "comply" with Forrey's order and stated that "if I feel a need to turn down a request, [I] will ask you first." (Id.) Ulrich did not disclose that he had emailed Lotter.

On August 31, Forrey emailed Ulrich stating that as a financial writer Ulrich was expected to work on all reports, including those involving MNPI. (Id.) Forrey also stated that he had learned that Ulrich had, after receiving a previous email from Forrey regarding his refusal to work on reports involving MNPI and without informing Forrey that he was doing so, reached out to the compliance department requesting that it intervene to prevent Ulrich from receiving MNPI, and that Ulrich had turned down an assignment because it involved MNPI. (Id.) Forrey stated that Ulrich's "failure to mention these events to" Forrey and Ulrich's "failure to inform [Forrey] that [he] had just turned down another work assignment, despite . . . expressly agreeing [that Ulrich] would ask [Forrey] first before turning down any work" as "unacceptable" and "disingenuous[]." (Id.) Forrey concluded by stating that Moody's "seriously considered" firing Ulrich, but instead decided to allow Ulrich an opportunity to complete the PIP. (Id.)

On September 13, 2012, Ulrich was suspended for two-weeks pending investigation of Ulrich's "refusal to abide by management instructions and failure to inform management of having refused to perform work assignments." (Reply 56.1 ¶ 61; Nuccio Decl. Ex. 71.) Two weeks later, on September 27, Ulrich returned to work. (Nuccio Decl. Ex. 71.) At that time, Ulrich acknowledged in a "Return-to-Work Agreement" that his position required access to MNPI and that he would be subject to immediate discharge if he "(1) represent[ed] to any other Company employee(s) that he does not have access to MNPI or that he should not be provided with MNPI; and/or (2) request[ed] of any Company employee(s) that they not provide him with work . . . containing or comprising MNPI." (Id.) The Return-to-Work Agreement reiterated that the PIP would conclude on October 16 as scheduled. (Id. ¶ 4.) Ulrich claims that he signed the Agreement "under duress." (Reply 56.1 ¶ 62.)

Ulrich went on vacation after his PIP concluded on October 16. (Reply 56.1 ¶ 63.) The PIP conclusion form, which was signed by Forrey, stated that Ulrich "ha[d] not met the performance standards expected by Moody's during the PIP." (Nuccio Decl. Ex. 72.) Ulrich returned to work on October 24, 2012, and his employment was terminated on that day. (Id. ¶ 64.) At the time he was fired, Ulrich's salary was HKD 820,000 per year plus a HKD 123,000 target bonus. (See id. ¶ 89; Nuccio Decl. Ex. 48.)

II. Procedural History

Plaintiff initiated this action by filing his complaint on December 26, 2012. (Doc. 1.) On April 22, 2013, Plaintiff filed his Amended Complaint, asserting claims for retaliation against him for his whistleblower activities; defamation or false light; age discrimination and retaliation for complaining about age discrimination; violation of his employment contract; and violation of the Sherman Act. (Doc. 26.) On May 9, 2013, Defendants moved to dismiss. (Doc. 27.) On March 31, 2014, Magistrate Judge Michael H. Dolinger, to whom this case was originally referred,²² issued a Report and Recommendation ("R&R) recommending dismissal of all of Plaintiff's claims except for Plaintiff's ADEA claim for retaliatory suspension and termination. (Doc. 41.) Plaintiff objected to the R&R, (see Doc. 47), and on September 30, 2014, I issued a Memorandum and Order adopting and modifying the R&R such that Plaintiff's ADEA discrimination claim survived but only to the extent Plaintiff alleged that he was paid less than other employees because of his age, (Doc. 50, the "Dismissal M&O"). Accordingly, Plaintiff's surviving claims were for violations of the ADEA for (1) age-based pay disparity; and (2) retaliatory suspension and termination.

22 Judge Lewis A. Kaplan, to whom this case was originally assigned, referred the matter to Magistrate Judge Dolinger for general pretrial purposes and for reports and recommendations on dispositive motions. (Doc. 4.) The case was reassigned to me on February 3, 2014. On October 31, 2014, I issued an order terminating the referral of this matter to Magistrate Judge Dolinger. (Doc. 56.)

On October 17, 2014, Defendants filed their Answer to the Amended Complaint. (Doc. 54.) On November 10, 2014, I denied Plaintiff's request that I enter an order pursuant to Federal Rule of Civil Procedure 54(b) certifying the dismissed causes of action as final judgments and allowing their immediate appeal, (Doc. 57), and on November 21, 2014, I set an initial pre-trial conference, (Doc. 58). On November 23, Plaintiff filed a letter requesting, among other things, permission to file a Rule 11 sanctions motion against Defendants, (Doc. 59), and on December 18, I denied that request as premature because the issues raised by Plaintiff's proposed motion would be tested in discovery, which had not yet begun, (Doc. 63).

On January 9, 2015, I held a conference at which all parties appeared by telephone, and on January 15, I entered a case management plan setting the close of all discovery for May 7, 2015. (Doc. 71.) Over the course of discovery, the parties were unable to agree on numerous issues and required, at fairly regular intervals, my intervention regarding those disputes.²³

23 I do not detail those disputes here as I view them to be immaterial to my consideration of Defendants' motion for summary judgment and Plaintiff's cross-motion for summary judgment.

On May 8, I held a teleconference after the parties exchanged letters regarding Defendants' proposed motion for summary judgment, (see Docs. 90, 91). I held a pre-motion conference on May 29, and thereafter set a schedule for resolution of the remaining discovery issues and for briefing Defendants' motion for summary judgment. (See Doc. 93.) On June 30, I issued an order that, among other things, set the close of discovery for July 15, to allow for a small supplemental document production by Defendants. (Doc. 96.) On July 9, Defendants submitted their motion for summary judgment, (Doc. 99), together with a supporting memorandum of law, Local Rule 56.1 statement of undisputed facts, declaration, and the notice to a pro se litigant required by Local Rule 56.2, (Docs. 100-03). On July 15, Defendants also submitted a letter stating that Defendants' document production was complete. (Doc. 107.)

On July 20, Plaintiff requested that I reopen discovery²⁴ and stated that he wished to pursue additional claims for defamation and conspiracy based on recently produced documents. (Doc. 111.) On July 23, Defendants submitted a response, opposing Plaintiff's discovery request and request to amend his complaint to add the defamation and conspiracy claims, (Doc. 112). On July 31, I, among other things, denied in near entirety Plaintiff's request to reopen discovery, and set a conference to discuss Plaintiff's proposed new claims. (Doc. 113.) Shortly thereafter Plaintiff requested that I reschedule the teleconference and indicated that he would address his proposed claims in his opposition papers to Defendants' summary judgment motion; based on that request I rescheduled the teleconference to October 2, 2015. (See Doc. 115.)

24 Plaintiff requested, among other things, Donovan's performance evaluations and the CV for one of his successors. (Doc. 111 at 1.) Moody's represented that it did not have these or the other documents Plaintiff requested, with the exception of the CV. (Doc. 112.) I ordered production of the CV. (Doc. 113.)

On August 17, Plaintiff submitted his opposition memorandum, (Doc. 116), Rule 56.1 response, declaration with exhibits, and affidavit, (Docs. 117-24), and on September 3, Defendants submitted a reply memorandum, (Doc. 125), and reply Rule 56.1 statement, (Doc. 127). On September 6, Plaintiff requested that I treat his opposition memorandum as a cross-motion for summary judgment and requested that I adjourn the conference scheduled for October 2. (Doc. 128.) Defendants opposed those requests, (Doc. 129), but in light of Plaintiff's pro se status, I granted his request for his opposition to be treated as a cross-motion for summary judgment, (Doc. 130). I also indicated that in light of Plaintiff's representations I would treat his opposition brief, supporting documents, and July 20 letter (Doc. 111), as presenting his argument regarding his defamation and conspiracy claims. (Id.) To avoid prejudice to Defendants, I adjourned the October 2 conference and allowed further briefing on Plaintiff's cross-motion and defamation and conspiracy claims. (Id.) On October 9, Defendants submitted their opposition memorandum, (Doc. 131), and on October 19, Plaintiff submitted his reply, (Doc. 134). That same day, I denied Plaintiff's request to treat the cross-motions for summary judgment as a trial on the papers for liability, (Doc. 132), and indicated that Plaintiff should not file his proposed second amended complaint, (Doc. 135).

III. Legal Standard

Summary judgment is appropriate when "the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see Fed. R. Civ. P. 56(a). "[T]he dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law," and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id.

On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial," id. at 256, and to present such evidence that would allow a jury to find in her favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . ." Fed. R. Civ. P. 56(c)(1). In the event that "a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may," among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(2), (3).

In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal citations and quotation marks omitted); see also Matsushita, 475 U.S. at 587. "[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non moving party," summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

However, courts must exercise "an extra measure of caution" in determining whether to grant summary judgment in employment discrimination cases "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence . . . ." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (internal quotation marks omitted). Nevertheless, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). The ultimate inquiry is "whether the evidence can reasonably support a verdict in plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).

Finally, the pleadings and submissions of a pro se party must be construed liberally and should be interpreted "to raise the strongest arguments that they suggest." Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir. 2010) (summary order) (internal quotation marks omitted). However, "the fact that [Plaintiff] is proceeding pro se does not otherwise relieve him from the usual requirements of summary judgment." Bussey v. Phillips, 419 F. Supp. 2d 569, 579 (S.D.N.Y. 2006) (internal quotation marks omitted). In addition, although pro se litigants are given "special solicitude" at the summary judgment stage, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1998), a fact is not disputed simply because a litigant conclusorily proclaims it to be so if the underlying record evidence clearly contradicts that assertion. See BellSouth Telecommc'ns, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (opposing party cannot defeat summary judgment by "merely . . . assert[ing] a conclusion without supplying supporting arguments or facts"); Bennett v. James, 737 F. Supp. 2d 219, 226 (S.D.N.Y. 2010) ("Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, [the non-movant] must produce specific facts to rebut the movant's showing and to establish that there are material issues of fact requiring a trial" (alteration, internal quotation marks, and citations omitted)).²⁵

25 Ulrich raises numerous objections to the underlying veracity, accuracy, and implications of various documents that both parties submit in support of their respective motions. The factual summary contained in the Background section is based on my assessment of the facts that are in fact not in dispute, despite any conclusory or unsupported allegations or statements by Ulrich suggesting that a dispute exists.

IV. Discussion

A. ADEA Claims

The ADEA forbids an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's age." 29 U.S.C. § 623(a)(1). "It is well established that the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to claims brought under the ADEA." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014). The Plaintiff bears the initial burden of establishing a prima facie case. Id. at 168.

1. Pay Disparity

A prima facie case of discrimination requires the Plaintiff to show "(1) that [he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he] experienced adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination." Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012). If the Plaintiff makes a prima facie case, "the defendant must then articulate some legitimate, nondiscriminatory reason for its action." Delaney, 766 F.3d at 168 (internal quotation marks omitted). "When the employer meets its burden, the plaintiff can no longer rely on the prima facie case, but must prove that the employer's proffered reason was a pretext for discrimination." Id. at 168 (citations and internal quotation marks omitted). "A plaintiff bringing a disparate-treatment claim pursuant to the ADEA satisfies this burden by presenting facts, which taken in his favor, suffice to show that a triable issue exists as to whether his age was a but for cause of" the adverse action. See id. at 168 (alterations and internal quotation marks omitted) (quoting Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 180 (2009)).

a. Prima Facie Case

Moody's argues that Plaintiff cannot satisfy the fourth element of a prima facie case of age discrimination because the record does not contain evidence giving rise to an inference of discrimination. (See Ds' Mem. 13-17.)²⁶ "To raise an inference of discrimination based on disparate treatment, [Plaintiff] must show that [he] was 'similarly situated in all material respects' to the individuals whom [he] seeks to compare herself." Cooper v. Morgenthau, No. 99 Civ. 11946(WHP), 2001 WL 868003, at *7 (S.D.N.Y. July 31, 2001) (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997)). Ulrich has made a prima facie case if he establishes that a co-worker who was not over the age of forty but was similarly situated was compensated at a higher rate. See McIntyre v. Longwood Central Sch. Dist., 658 F. Supp. 2d 400, 415 (E.D.N.Y. 2009). While the question of whether employees are similarly situated is frequently a question for the jury, summary judgment is still appropriate if there are no facts from which a jury could find that the plaintiff and the purported comparators were in fact similarly situated. See Cooper, 2001 WL 868003, at *7. Courts examine a variety of factors to determine whether the plaintiff and potential comparator were "subject to the same performance evaluation and discipline standards" and "engaged in comparable conduct." Ruiz v. Cty. of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010).

26 "Ds' Mem." refers to Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment Pursuant to Rule 56(c). (Doc. 100.)

Ulrich argues that Jean-Francois Tremblay ("Tremblay") was the "FIG writer most similarly situated to" him because Tremblay joined Moody's as a writer eight months after Ulrich, had some of the same experience and work background, and also had an advanced economics degree which he used as a government economist. (See Reply 56.1 ¶ 85; see also Am. Compl. ¶ 101.) Ulrich's attempt to establish Tremblay as a comparator is fatally flawed. Tremblay and Ulrich did not have the same job or job title, did not work in the same group, and did not have the same manager. Ulrich began his employment with Moody's as a Financial Writer and was promoted to Assistant Vice President in the CFG, (Reply 56.1 ¶ 29), whereas Tremblay started at Moody's as a Vice President-Senior Research Analyst in the FIG, (id. ¶ 86), and became a Vice President, Director of Research, (id.).²⁷ See Shaw v. McHugh, No. 12-CV-6834(CS), 2015 WL 1400069, at *9 (S.D.N.Y. Mar. 26, 2015) ("Distinctions in assignment, reporting structure, responsibilities and workplace standards undercut Plaintiff's argument that his comparators are similarly situated."). The difference in these roles is not semantic: Ulrich did not have any direct reports throughout his career at Moody's, (id. ¶ 8), whereas Tremblay managed a "team of writers" and had managerial duties, (see Nuccio Decl. Ex. 73). Additionally, Tremblay and Ulrich never reported to the same manager. (See Nuccio Decl. Ex. 75.) The fact that Tremblay and Ulrich occasionally conducted training sessions does not mean that they were substantially engaged in the same conduct; individuals of different levels regularly collaborate on presentations. Moreover, Ulrich's personal views and self-serving and conclusory statements that he was better qualified and performed better than Tremblay are not relevant to the question of whether Tremblay and Ulrich were "similarly situated" and do not diminish the substantial differences in their positions. 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.").

27 Ulrich also compares himself to Ann Colden, Scott Stearns, and Cynthia Schreiber. However, Ulrich, who joined Moody's as a financial writer, acknowledges that when he joined Moody's Colden, Stearns and Schreiber were all assistant vice presidents, (Ulrich Dep. 82-83), and by 2011 Stearns and Schreiber were vice presidents, (id. 112-13), when Ulrich was an assistant vice president. Stearns became a vice president in or about July 2008, and Schreiber became a vice president in or about October 2009. (Id. 113.) In addition, Colden, Stearns, and Schreiber were based in London and New York, respectively, not Hong Kong. (Id. 82.)

Ulrich also points to various New York and London based colleagues as higher paid comparators. Here too Ulrich's examples and arguments are flawed. The New York and London based Moody's employees are not "similarly situated" to Plaintiff for a number of reasons. First, as Ulrich acknowledges, they did not work in the same markets as Ulrich; that by itself negates Ulrich's claim that those individuals were "similarly situated" for purposes of his pay disparity claim. See Bay v. Times Mirror Magazines, 936 F.2d 112, 117 (2d Cir. 1991) ("[T]here is nothing in the ADEA that prohibits an employer from making employment decisions that relate an employee's salary to contemporaneous market conditions and the responsibilities entailed in particular positions . . . ."). "While [P]laintiff clearly disagrees with [D]efendants' reliance on market factors in setting initial salaries, and . . . in determining annual salary increases [and promotions], such considerations are . . . legal." Rosen v. Columbia Univ., No. 92 Civ. 6330 (AGS), 1995 WL 464991, at *6 (S.D.N.Y. Aug. 7, 1995). Although Cahill observed that Ulrich's pay was lower than the usual differential between the Hong Kong and New York markets—a fact that Cahill found surprising—(Nuccio Decl. Ex. 23)²⁸—that comment does not indicate age-based discrimination, nor does it have any bearing on whether New York individuals were similarly situated to Ulrich; their pay is not relevant unless they were in fact Ulrich's comparators. Second, while some of the purported comparators reported to Forrey, none of the New York or London Moody's employees that Ulrich identifies as comparators reported to Cahill, (see Nuccio Decl. Exs. 77-84), the individual whom Ulrich claims is responsible for his disparity in pay. This is an "important factor" in determining whether two employees were similarly situated. Conway v. Microsoft, 414 F. Supp. 2d 450, 465 (S.D.N.Y. 2006); see also Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (employees were not similarly situated when, among other things, they were not supervised by the same supervisors who were responsible for adverse action of which the plaintiff complained). Even if these individuals were evaluated according to the same criteria, (see Ulrich Decl. Ex. 105), they were different ranks and, as their performance evaluations indicate, and, in many cases, different business objectives from Ulrich, (see id.). Finally, like Tremblay, a number of the alleged comparators were over the age of forty for a portion of their employment with Moody's and thus, at that point, in the same protected class as Ulrich, further negating any inference of discrimination. (See Nuccio Decl. Exs. 77-84.) London based Anne Colden, whom Plaintiff identifies as being higher paid than himself, was older than Ulrich. (See Reply 56.1 ¶ 31; Nuccio Decl. Ex. 81.)

28 Cahill's contemporaneous expression of surprise to another employee at Moody's militates against an inference that he had been discriminating against Ulrich because of his age.

Beyond arguing that similarly situated individuals were paid more, Ulrich also argues that Donovan, who was over forty, received the same compensation as Ulrich did when he started, was discriminated against and thus is not a useful benchmark for Ulrich's pay. (See P's Mem. 20.)²⁹ While I agree that the fact that Donovan and Ulrich were paid the same does not itself suggest that Ulrich's pay was non-discriminatory, it also does not suggest that Ulrich's salary was discriminatory. Insofar as Ulrich seeks to use Donovan's pay level as evidence of some sort of age-based discriminatory animus on the part of Cahill, that argument also fails. First, there is absolutely no evidence in the record to support an inference that Donovan was the victim of age discrimination. Second, there is simply no direct evidence that could lead a reasonable jury to find that Cahill had a discriminatory motive in depressing Ulrich's pay. In deep the facts support an inference that Cahill did not have any discriminatory motive. Those facts include: (1) Cahill's concern when Ulrich was initially hired that Moody's would lose Ulrich because of his qualifications and salary; (2) Cahill's expression of his view on several occasions that Ulrich did good work; (3) Cahill's involvement in Ulrich obtaining pay increase and at least one promotion; (4) Cahill's specific statements that Ulrich "is talented and adds value" and that Ulrich was "very intelligent"; and (5) Cahill view in July 2009—almost a year and a half after Ulrich began working at Moody's—that Ulrich was at a "significant risk of leaving and that his value to us has increased significantly in last 6 to 8 months." Cahill's comments and views are not those of a supervisor bent on discriminating against Ulrich because of his age; rather they are Cahill's contemporaneous evaluations of Ulrich and his work performance at the time.

29 "P's Mem." refers to Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Motion for Summary Judgment. (Doc. 116.)

Ulrich characterizes the following email from Cahill to Forrey, which addresses a draft report Cahill found unsatisfactory, as a "vitriolic, ageist attack":

FYI. And John I am attaching the draft sent to me which I have just comprehensively rejected per below and which Paul reviewed and had no comments on. He has checked out and gone mentally. Time we helped him on his way physically. Frankly, the lack of engagement around this one SC is sufficient to fire him on its own. I don't have time for this.

(See Reply 56.1 ¶ 130; see also Ulrich Decl. Ex. 102 at P-13176.) While in certain circumstances a statement that an individual had "gone mentally" could be construed as ageist, in the context of a criticism that was (a) initially leveled at a group of people, not just Ulrich, (b) relates directly to the quality of work performed, and (c) is part of an ongoing course of frustration with Ulrich's lack of engagement and commitment, without more this complaint cannot support any inference of discrimination. Moreover, any such interpretation is at odds Plaintiff's core contention that Cahill was intimidated by Ulrich's age, skill and experience level and thus attempted to create conditions that would lead Ulrich to leave Moody's. (See, e.g., P's Mem. 4 ("If I had joined Moody's as a "green" 25-year-old, as a 30-year-old, or even as a 35-yearold, Cahill would not have felt threatened by me. But precisely because I joined as a 45-year-old, I had that much more experience and potential to command respect from those in Hong Kong, who reported to Cahill as their second-level supervisor via Gary Lau, the head of Hong Kong's Corporate Finance Group ("CFG")"; "I spoke Mandarin, had 15 years of experience on consulting projects in China, which was rapidly becoming Moody's most important market . . ., and technical skills relevant to credit markets. But for my age, Cahill would not have felt insecure.").)

Similarly, while Ulrich relies heavily on Cahill's comment, from mid-2008, that he was "way over qualified," this characterization was not used as a justification for failing to increase Plaintiff's pay. As an initial matter, this comment was made in relation to Ulrich being initially hired as a financial writer, a position that he applied for himself. In any event, it is clear from Plaintiff's numerous assertions in his papers that he was more qualified than his colleagues that Plaintiff would not have me infer that this comment was anything but a bona fide assessment of Plaintiff's resume. Accordingly, the precedent on which Plaintiff relies is not relevant here. See Focarazzo v. Univ. of Rochester, 947 F. Supp. 2d 335, 340 (W.D.N.Y. 2013) (explaining that where overqualification is the "sole nondiscriminatory reason" for an adverse employment action, an inference of discrimination may arise, but no such inference arises when a "supervisor's stray remarks referenc[e] an employee's bona fide overqualification for her job" and overqualification is not given as the reason for an adverse action nor is there evidence suggesting that it played a role in such actions); cf. Taggart v. Time Inc., 924 F.2d 43, 47 (2d Cir. 1991) (in the context of rejecting the plaintiff for an open position, reference to plaintiff as "overqualified" could be a mask for rejecting the plaintiff because she was too old); Bay, 936 F.3d at 118 (noting that "a conclusory statement that a person is overqualified may easily 'serve as a mask for age discrimination'" but nevertheless granting summary judgment because there were a number of reasons for the adverse action).

Since Ulrich failed to demonstrate that a similarly situated co-worker under the age of forty was compensated at a higher rate and has not shown any evidence of direct discriminatory animus, Plaintiff has not made out a prima facie case of age discrimination and his pay disparity claim must be dismissed.

b. Non-Discriminatory Reasons and Pretext

Even if Plaintiff had established a prima facie case, Moody's has met its burden of showing legitimate, non-discriminatory reasons for setting Ulrich's salary. Ulrich cannot show that these reasons were pretextual, and, in particular, there is no issue of material fact on the question of whether age discrimination was a "but for" cause of Plaintiff's purported low pay.

Moody's argues that Ulrich's pay was set based on market forces, budgetary constraints, and the quality of his work. The record supports this view. When Ulrich first requested a higher salary, Cahill looked into Ulrich's concerns, ultimately raising Ulrich's salary and recommending him for the role of AVP. Many of the discussions regarding increasing Ulrich's salary cited budget as a driving factor. (See, e.g., Nuccio Decl. Exs. 10 (Cahill noting that he "need[s] to try to find some money for the financial writer" and Rowan observing, "we've got a little bit of flex in our plan"), 26 (discussing the financial implications of replacing Ulrich if he does not get the salary raise he requests and decides to leave). Ulrich appears to acknowledge this point in arguing that Moody's explanations "shifted" from "budgetary reasons" to "local market conditions" and that these "inconsistent explanations" show pretext. (See P's Mem. 24.) These reasons, however, are plainly neither incompatible nor inconsistent; instead the record shows that Moody's considered both factors, together, in determining Ulrich's salary. (See, e.g., Reply 56.1 ¶¶ 10, 19, 20; Nuccio Decl. Exs. 10, 26.) There is simply no basis for me to find that Moody's proffered reasons for setting Ulrich's pay were pretextual, let alone that discrimination was a "but for" cause of Ulrich's pay disparity.

2. Retaliatory Suspension and Termination

The ADEA prohibits retaliation for an employee's opposition to discriminatory practices. See Gomez-Perez v. Potter, 553 U.S. 474, 489 (2008). To establish a prima facie case of retaliation under the ADEA, a plaintiff must show "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Bucalo, 691 F.3d at 129. The causal connection can be established "(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or . . . (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). As with a discrimination claim, if the plaintiff has made a prima facie case, the burden shifts to the defendants to show a legitimate, nondiscriminatory reason for the adverse action. See Stratton v. Dep't for the Aging for the City of N.Y., 132 F.3d 869, 879 (2d Cir. 1997). If the defendants meet that burden, the plaintiff must "proffer evidence from which a reasonable jury could conclude that the legitimate, nondiscriminatory reasons offered by the [defendants] for [their] actions were prextexts for unlawful retaliation." Witkowich v. U.S. Marshals Serv., 424 F. App'x 20, 22 (2d Cir. 2011) (summary order) (citing Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996)).

Although the Second Circuit has not definitively determined whether the "but for" causation standard applies to retaliation claims under the ADEA, see, e.g., Landolfi v. Am. Ass'n of Retired Persons, No. 13 Civ. 7333(AT), 2015 WL 5820710, at *8 (S.D.N.Y. Sept. 28, 2015), several courts in this Circuit accept that, in light of recent Supreme Court decisions, the "but for" analysis is appropriate. See Wolf v. Time Warner, Inc., 548 F. App'x 693, 696 (2d Cir. 2013) (summary order) ("To prove retaliation [under the ADEA or Title VII], [Plaintiff] must show that [the protected activity] was a 'but for' cause of [his] termination." (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, --U.S.--, 133 S. Ct. 2517 (2013))); see also, e.g., Campbell v. N.Y. City Transit Auth., 93 F. Supp. 3d 148, 178-79 (E.D.N.Y. 2015) ("To survive summary judgment on a claim of retaliation under Title VII or the ADEA, Plaintiff would have to show that retaliatory intent was the 'but for' cause of any wrongful actions."). In any event, as discussed below, Plaintiff has not put forth evidence showing that his complaints were a "motivating factor" in the adverse actions and thus his claim fails regardless of whether the "but for" standard applies. See Fried v. LVI Servs., Inc., 500 F. App'x 39, 41 (2d Cir. 2012) (summary order).

a. Prima Facie Case

Plaintiff claims that he suffered two adverse employment actions, suspension and the termination of his employment, following his complaints of age discrimination. In the absence of direct evidence of a retaliatory animus, Plaintiff must make a showing that his "protected activity was followed closely by discriminatory treatment." Gordon, 232 F.3d at 117. Defendants argue that Plaintiff cannot make this showing because (1) the time lag between the complaints and the adverse actions was too great to support an inference of causation, and (2) even if the time lapse were not too great, intervening events break the causal chain. (See Ds' Mem. 21-23.)

Drawing inferences in Plaintiff's favor, Ulrich's protected activity consists of the following: Ulrich's complaint about discrimination to Forrey on May 9, 2012,³⁰ his hotline call on May 15, and his initiation of an EEOC complaint in June. Moody's received the unperfected EEOC charge in June and the perfected charge in late July. Ulrich was suspended on September 13, 2012, and his employment was terminated on October 24. While close to the line, the time between Ulrich's protected conduct, in particular, the EEOC charge, and his suspension was not so great that I can conclude that a reasonable jury could not draw an inference of retaliation from the temporal proximity of the protected conduct and the adverse action. See Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009) (six month lag not too long); Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (five months not too long); but see Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) ("[D]istrict courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation."). Moreover, while the PIP was not, standing alone, an adverse action, (see Dismissal M&O 23-24), the PIP arguably was a precursor to Plaintiff's termination, since, among other things, it warned of potential dismissal, (Nuccio Decl. Ex. 58), and thus it is at least somewhat relevant to the temporal proximity determination. Cf. Roberson v. Snow, 404 F. Supp. 2d 79, 94 (D.D.C. 2005) (an investigation was not an adverse action for purposes of Title VII, but was relevant to the temporal proximity calculation because it was a precursor to the plaintiff's arrest).

30 The parties dispute whether Plaintiff complained of age-based discrimination to Forrey during the May 9 call, but for purposes of resolving Defendants' motion for summary judgment, I draw all inferences in favor of Plaintiff and assume that he did in fact complain of discrimination on May 9 during his call with Forrey. Because I find that Defendants are entitled to summary judgment, I need not separately analyze Plaintiff's claims with respect to his cross-motion for summary judgment.

Even so, Plaintiff's prima facie case nevertheless fails because intervening events defeat any inference of causation. See Joseph v. Marco Polo Network, Inc., No. 09-CV-1597 (DLC), 2010 WL 4513298, at *18 (S.D.N.Y. Nov. 10, 2010) ("An intervening event between the protected activity and the adverse employment action may defeat the inference of causation where temporal proximity might otherwise suffice to raise the inference."); see also Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) ("In this Circuit, an inference of causation is defeated . . . if . . . there was an intervening causal event."). In particular, throughout the summer of 2012, Forrey continued to receive negative feedback from Plaintiff's co-workers, (see infra 14-16), including individuals other than Cahill.³¹ Plaintiff admits that he did not credit the negative comments or think his work was sub-par, and therefore did not change his work habits. More significantly, Plaintiff was cited for insubordination related to MNPI, (see infra 16-17), for which Forrey would have been justified in terminating Ulrich's employment. See, e.g., Forkell v. Lott Assisted Living Corp., No. 10 Civ. 5765 (NRB), 2012 WL 1901199, at *11 (S.D.N.Y. May 21, 2012) ("[I]t is beyond dispute that an employer may terminate an employee based on inappropriate comments, perceived insubordination, or disruptive behavior in the workplace."). These intervening events are independent of Plaintiff's protected activity because there is no basis to find that the feedback was tainted by a retaliatory animus, nor is there any basis to find that Forrey manufactured the dispute over MNPI because of a retaliatory motive. Accordingly, the negative feedback and MNPI dispute break the causal chain between Plaintiff's complaints and any adverse actions taken against Plaintiff, and Plaintiff's prima facie case fails. Cf. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (employee was fired following request for accommodation, but ADA claim failed because the plaintiff's insubordination constituted "intervening unprotected conduct"); Placide-Eugene v. Visiting Nurse Serv. of N.Y., 86 F. Supp. 3d 132, 150 (E.D.N.Y. 2015) (employer would have been justified in terminating employee who failed to correct union representative's misrepresentations in a grievance meeting and thus any chain of causation between protected activity and termination was broken); Miller v. Stifel, Nicolaus & Co., 812 F. Supp. 2d 975, 989 (D. Minn. 2011) ("There is no competing evidence-aside from Plaintiff's personal views-that [the employer] was incorrect in its assessment of her lagging performance. And even if [the employer] misjudged her performance, federal courts do not sit as a super-personnel department that reexamines an entity's business decision." (internal quotation marks omitted)).

31 I note that the intervening events cited above were not the first negative reviews of Ulrich's work performance. In fact the reason for the May 9 call between Forrey and Ulrich was, at least in part, to discuss the negative reviews of Ulrich's work. (See Reply 56.1 ¶ 39; see also Ulrich Dep. 70-71.) Prior to Ulrich's first complaint of discrimination during the May 9 call, Forrey had received negative reviews and comments concerning Ulrich's work performance from Moody's employees. In a May 4 email a Moody's colleague noted that there had been a "distinct shift" from 2010 to 2011/2012 in Ulrich's performance and attitude. (See Nuccio Ex. 53 at D-971.) Specifically, the colleague noted that Ulrich frequently turned down work despite leaving the office at 5:30pm, "adopted the role of editor," leaving the analysts to write the bulk of the research; and had pushed additional work down to analysts and other members of the team. (Id. at D-971-72.) In addition, on May 7 another co-worker wrote that "[Ulrich's] level of interest is obviously not high," he was "not easy to work with," he turned away work claiming to be "too busy, but [it was] hard to reconcile why he [was] so busy," and that "[h]is work is varied and depends on his level of commitment and interest." (Id. at D-970.)

Ulrich suggests in various places in his submissions that Cahill manipulated other Moody's employees into providing negative feedback about Ulrich. (See, e.g., Reply 56.1 ¶¶ 13, 24, 25.) Nothing in the record supports a reasonable inference that Cahill had a Svengali-like influence over Moody's employees or that he engaged in "groupthink" or any other manipulative practices. These allegations are purely speculative, rely on Ulrich's own self-serving assessments of the motivations of others, and are not supported by the record. Moreover, although Ulrich on numerous occasions expresses strong disagreement with the accuracy, reasonableness, and/or fairness of the underlying feedback related to his performance at Moody's, the fact that such feedback was provided is not in dispute. (See, infra, Section IV.B.1; see also, e.g., Reply 56.1 ¶¶ 22 (disputing the fairness of a review by questioning "[h]ow [one can] provide value without working effectively with others"), 23 ("According to Lau, taking pride in one's work is a "Con"—not surprising from this manager, whose own sloppy email . . . contains multiple grammatical errors. The reply . . . from [another co-worker, named,] Fanous[,] also lacks any specifics and rehashes the same canard of market-based information"), 75 ("Cahill latched onto the 'teamwork' canard because he could not objectively criticize the quality of my work, which is why writers take writing tests when applying for a job.").)

b. Non-Retaliatory Reasons and Pretext

Even if Plaintiff had established a prima facie case, Defendants have put forth legitimate, non-retaliatory reasons for Ulrich's suspension and termination—namely, Plaintiff's performance issues and insubordination. As an initial matter, I note that Plaintiff continues to argue that the PIP itself was an adverse action. (See P's Mem. 22.) As discussed in the Dismissal M&O and as noted above, negative reviews and performance evaluations are not themselves adverse actions. (See Dismissal M&O 23-24.) However, even if the PIP was an integral part of the causal chain connecting Ulrich's complaints to the suspension and termination of his employment, or even if the PIP was itself and adverse action, Defendants have put forth legitimate non-retaliatory reasons for the PIP and for the tangible consequences arguably flowing from the PIP—i.e. Plaintiff's suspension and termination of his employment—and Plaintiff failed to rebut those reasons by showing pretext.

The following facts are not in dispute: Prior to any protected conduct, Forrey, and Cahill before him, had received substantial feedback related to Ulrich's inability to work collaboratively and Ulrich's unwillingness to incorporate comments from his co-workers into his drafts. Ulrich claims, repeatedly, that Cahill sought to "destroy" or undermine his career long before Ulrich's complaint about age discrimination. (See, e.g., Reply 56.1 ¶¶ 125-27.) Forrey received substantial complaints about a "distinct shift" in Ulrich's work product from employees other than Cahill prior to any protected conduct. The reported performance issues related to a decline in the quality of Plaintiff's work. The negative reviews regarding the quality of Plaintiff's work, continued during the PIP—including from individuals other than Cahill. During the course of the PIP, Plaintiff turned down work containing MNPI without permission to do so, and, after Forrey's express instruction not to refuse such work, Plaintiff again sought to avoid work containing MNPI—without telling Forrey. In pointing to these facts, which demonstrate poor work performance and insubordination, Moody's has met its burden to show legitimate, non-retaliatory reasons for Plaintiff's suspension and the termination of his employment. See Dixon v. Int'l Fed'n of Accountants, 416 F. App'x 107, 110-11 (2d Cir. 2011) (summary order) (the plaintiff's "poor work performance constituted a legitimate, non-retaliatory reason for her termination"); Schnabel v. Abramson, 232 F.3d 83, 87-88 (2d Cir. 2000) (demonstration of difficultly following instruction, outright insubordination, and inept performance sufficient to show legitimate non-discriminatory reasons for termination); see also Benson v. N.Y.C. Bd. of Educ., No. 02-CV-4756 (NGG) (RML), 2006 WL 2853877, at *7 (E.D.N.Y. Sept. 29, 2006) (refusal to do work constitutes legitimate non-discriminatory reason).

Plaintiff has put forth no evidence establishing that Moody's stated non-retaliatory reasons were pretextual. In particular, Plaintiff's argument that the negative feedback was unwarranted is insufficient to support a retaliation claim as it is undisputed that Forrey received this feedback and that he took action in response to the feedback. See, e.g., Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 111 (S.D.N.Y. 2009). This is particularly true because the performance reviews during the PIP were consistent with Plaintiff's prior performance reviews, including those from before May 9, the earliest date Ulrich reported discrimination. See Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 F. App'x 739, 746 (2d Cir. 2014) (summary order) (where poor work performance was identified prior to protected conduct, there was no triable issue of fact with respect to whether that conduct was a motivating factor in the decision not to award the plaintiff tenure). Despite Plaintiff labeling them as such, these are not "shifting reasons" or "inconsistent explanations," (P's Opp. 24-25), but instead are entirely consistent with the view put forth by Moody's—that Plaintiff's performance problems and insubordination led to Plaintiff's suspension and the termination of his employment.

To the extent that Ulrich points to his previous positive work reviews, "[t]he mere fact of past satisfactory performance, followed by negative feedback, is not suggestive of impermissible animus." Missick v. City of New York, 707 F. Supp. 2d 336, 350 (E.D.N.Y. 2010). Nor is Forrey's handling of feedback and of the PIP, as Ulrich admits that Forrey's conduct was consistent with his actions prior to any protected activity. (See, e.g., Reply 56.1 ¶ 128 (Forrey's handling of feedback to Ulrich at the end of 2011, before any protected activity, "was unusual" and "would characterize his handling of the PIP six months later").) Finally, temporal proximity alone is not sufficient to demonstrate pretext. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam) ("The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext.").

Likewise, Plaintiff has put forth no evidence suggesting that the dispute over MNPI was pretextual. Ulrich's argument that Moody's shifted MNPI-related work to him after Moody's adopted a company-wide divestiture policy in an effort to set the stage for Plaintiff's dismissal is entirely without support. Moreover, because the company-wide MNPI policy went into effect in July 2012, the fact that Ulrich had not had an issue with MNPI prior to his complaints about discrimination does not support a finding of pretext. Similarly, whether Ulrich would in fact have been forced to divest his assets is immaterial to his retaliation claim. The facts demonstrate that Ulrich turned down assignments without permission to do so and after being told that he should not turn down such work and agreeing that he would not do so Ulrich directly violated that directive.

Based on the foregoing, even drawing all inferences in Plaintiff's favor, the adverse actions suffered by Plaintiff resulted from his own actions: the downward shift in performance and commitment, failing to meet the standards of the PIP, and insubordination. Accordingly, Plaintiff's retaliation claims fail.

B. New Claims for Defamation , Conspiracy , Prima Facie Tort , and Aiding and Abetting

In addition to Defendants' motions for summary judgment, before me are Plaintiff's requests to add claims of defamation, conspiracy, and prima facie tort. (See Docs. 111, 116, 134.)

As an initial matter, I must determine under what standard to consider Plaintiff's proposed claims. Ordinarily, I would treat the additional claims raised in Plaintiff's opposition papers "as a proposed amendment to the original complaint." Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). If I consider the additional claims as a proposed amendment, I must accept as true all well-pleaded facts and must draw all reasonable inferences in the plaintiff's favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A claim need not be composed of "detailed factual allegations," but it must contain more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). If the proposed amendments would be futile because they would not be "sufficient to survive a Rule 12(b)(6) motion to dismiss," I need not allow the amendment. Obot v. Sallie Mae, 602 F. App'x 844, 846 (2d Cir. 2015) (summary order).³²

32 As with motions for summary judgment, a "document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted). Further, pleadings of a pro se party should be read "to raise the strongest arguments that they suggest." Kevilly, 410 F. App'x at 374 (internal quotation marks omitted). Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).

Here, however, Plaintiff expressly represented that his response to Moody's 56.1 statement would "contain the detailed facts, supported by specific references to attached Bates- number pages of exhibits that will . . . [help me to] decide on the appropriateness of [Plaintiff's] request to add the claim of defamation and conspiracy." (Doc. 114 at 1.) Ulrich further stated that once all of the papers have been filed by the parties that "[I] will have an authenticated record of the facts" relevant to his claims. (Id.). Based on those representations, both parties were given an opportunity to brief and respond to Plaintiff's proposed claims—and both parties did so with reference to the full record before them. In that briefing, Plaintiff requests that I "grant [his] cross-motion for summary judgment on all issues of liability, (see P's Reply Mem. 15), and Defendants request that I deny Plaintiff leave to amend or, "in the alternative," dismiss Plaintiff's claims at summary judgment, (Ds' Opp. 131).³³ It is clear that it would be appropriate to consider Defendants' opposition to Plaintiff's request to add new claims as a motion for summary judgment on those claims; in doing so, I must draw all inferences in Plaintiff's favor and determine whether there is a genuine dispute of material fact with respect to each of Plaintiff's proposed new claims.³⁴

33 "Ds' Opp." refers to Defendants' Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment. (Doc. 131.)

34 Whether the claims are considered under the standard applicable to determining whether a proposed amendment to a complaint is futile—the standard for a motion to dismiss under Rule 12(b)(6)—or under the standard applicable to motions for summary judgment, the outcome would be the same. My findings are based on an analysis of the legal sufficiency of Plaintiff's claims based on Cahill's purportedly defamatory emails. Additionally, insofar as Ulrich moves for summary judgment on these claims, I need not consider that motion separately because, as described herein, those claims do not survive Defendants' motion.

1. Defamation

Plaintiff's claim for defamation is based on emails from 2011 and 2012 that "show a pattern of Cahill's going around my back to make provably false statements about my work to my supervisor Forrey and to my second-level supervisor West." (Doc. 111 at 1.) Plaintiff asserts that "Cahill did this, in conjunction with Lau, based on a calculated and willful scheme." (Id.) Plaintiff has failed to meet his burden in establishing any genuine dispute of material fact with respect to this claim.³⁵

35 Defendants assert that the defamation claim is time-barred because New York has a one-year statute of limitations for defamation claims. N.Y. C.P.L.R. § 215(3). However, reading Plaintiff's submissions liberally, as I must, Plaintiff's claim would "relate back" to his original pleadings because it "aris[es] out of the conduct, transaction, or occurrence set out" in Plaintiff's complaint. See Fed. R. Civ. P. 15(c)(1)(B). In particular, Plaintiff asserted a defamation claim based on Forrey's publicly posting what Plaintiff considered a false evaluation of his performance, a claim that, at least arguably arises out of the same conduct underlying Plaintiff's new defamation claim—namely, the propagation of false performance reviews and evaluations.

A defamation claim requires "(1) a false and defamatory statement of and concerning plaintiff; (2) publication to a third-party; (3) the requisite degree of fault; and (4) special harm of per se actionability." Weinstein v. Friedman, No. 94 CIV. 6803 (LAP), 1996 WL 137313, at *10 (S.D.N.Y. Mar. 26, 1996).³⁶ A statement of opinion cannot form the basis for an actionable defamation claim. Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997). Whether a statement is one of fact or opinion is a question for the court. Id. at 196; Gross v. N.Y. Times Co., 82 N.Y.2d 146, 154 (1993). In determining whether a statement is one of fact or opinion, courts examine (1) whether the statement had a "precise and readily understood meaning"; (2) whether the statement is "susceptible of being proven false"; and (3) whether the context signals that the statement is one of fact. Cytyc Corp. v. Neuromed. Sys., Inc., 12 F. Supp. 2d 296, 301-02 (S.D.N.Y. 1998).

36 The parties appear to agree that New York law applies to Plaintiff's additional claims, and therefore I need not undertake an independent choice of law analysis. See Response Personnel, Inc. v. Hartford Fire Ins. Co., 812 F. Supp. 2d 309, 314 (S.D.N.Y. 2011) ("Under New York choice of law rules where the parties agree that New York law controls, this is sufficient to establish choice of law. Such agreement may be implicit. The parties' briefs assume that New York law controls. Therefore, under the New York choice-of-law rule, New York law applies.") (citations omitted).

In pointing to Cahill's request that Lau send him clean copies of draft materials, Plaintiff argues that Cahill "contrive[d] ignorance as to who wrote what" so that he would "allegedly not know my role on particular projects so that he could make false claims about it when others inserted errors." (Doc. 111 at 2.) Ulrich does not dispute and/or provides no basis to assert that the materials provided by Lau were actual draft materials prepared and edited by Moody's employees at the time. Therefore, in providing these materials, Lau did not provide false statements to Cahill. Beyond that, Plaintiff's assertion is purely speculative; Plaintiff points to no statements by Cahill or Lau that are provably false in relation to this purported scheme. Instead, Plaintiff asserts that Cahill and Lau provided defamatory feedback to Forrey regarding Ulrich's performance. This feedback, however, represents opinion, not fact. For example, whether something is "helpful" is neither precise and readily understood, nor able to be proven false. (See, e.g., Reply 56.1 ¶¶ 46 (Lau sent an email saying that Ulrich's draft outline was "not helpful" and did not adequately "address the comments" he was asked to address), 49 (Cahill's comment that Ulrich and others should have picked up on "basic style issues" is "another example of Cahill's efforts to defame me").) Similarly, it is clear from the context—in some instances, the purported defamatory statements are expressly described as opinions—that the statements are the writer's opinion as to the quality of Ulrich's work; indeed, that the statements go to the quality of Ulrich's work, as opposed to, for example, the timeliness of an assignment, is almost, by definition, a qualitative judgment. (See, e.g, Reply 56.1 ¶ 36 (arguing that "Cahill defamed me behind my back to my boss" by sending an email to which he attached edits and comments to a draft report and stated that "I may be being tough but my opinion is that over 75% of the comments I make should have been picked up and resolved by Paul and the editors").) The fact that Ulrich disagrees with opinions about his attitude at work or the quality of his work does not transform an otherwise non-actionable statement into a fact.

Even if Plaintiff had put forth an actionable false statement, Plaintiff's claim would fail because he has not established malice sufficient to overcome the qualified privilege related to communications made in a workplace about an employee. See Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145-46 (2d Cir. 2001). The privilege applies to "[c]ommunications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct and communications regarding the reasons for an employee's discharge." Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001). Because "the allegations at issue arose in the context of employment, regarded an employee and were distributed only to other employees, [Moody's has] . . . raised the rebuttable presumption of qualified privilege." Meloff, 240 F.3d at 146. To rebut this presumption, Plaintiff must show malice or action "with knowledge that the statement was false or with a reckless disregard as to its truth"—and that this was the sole purpose for the defamatory statement. Id. Plaintiff argues that he has shown an "improper purpose," "personal spite or ill-will," and "reckless disregard for the truth," (P's Reply Mem. 11), but Plaintiff's arguments are based on inferences that are not supported by the facts to which he purports to cite. See, e.g., Cty. Vanlines, Inc. v. Experian Info. Solutions, Inc., 317 F. Supp. 2d 383, 390 (S.D.N.Y. 2004) ("surmise, conjecture and suspicion" are insufficient to show malice). In any event, the purported defamatory statements relate to the quality of the work produced and thus, at least in part, were made to correct or improve the final work product. Despite Ulrich's protestations, nothing in the record suggests that these statements were made solely as part of some malicious scheme to undermine him. The fact that, in many cases, Cahill forwarded entire email chains and attached purportedly deficient reports undermines any finding of malice or reckless disregard for the truth; because Cahill provided the underlying material, the readers would be able to evaluate Cahill's opinions for themselves. Similarly, Plaintiff's claim of "contrived ignorance" as to authorship is undermined by the fact that many of the statements Ulrich complains about are directed to a group of individuals—not just Plaintiff. (See, e.g., Reply 56.1 ¶¶ 38, 41.) In short, Plaintiff has failed to sufficiently support his claim for defamation and thus the claim must be dismissed.

2. Conspiracy

Because Plaintiff's defamation claim fails, his conspiracy to defame claim fails as well. See Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006) ("New York does not recognize an independent tort of conspiracy."). Moreover, even if Plaintiff had asserted a claim for defamation, his conspiracy claim still would fail because he has shown no agreement between Lau and Cahill, nor has he shown that Lau "intentional[ly] participat[ed] in the furtherance of a plan or purpose." World Wrestling Fed. Entm't v. Bozell, 142 F. Supp. 2d 514, 532 (S.D.N.Y. 2001). Lau simply complied with Cahill's request to send clean drafts. There are no non-conclusory allegations—let alone evidence—supporting Plaintiff's assertion that "Lau knew what Cahill was looking for."

3. Prima Facie Tort

Plaintiff argues that, in the alternative, Cahill is liable for prima facie tort. Prima facie tort requires "(1) an intentional infliction of harm; (2) without excuse or justification and motivated solely by malice; (3) resulting in special damages; (4) by an act that would otherwise by lawful." Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 161 (2d Cir. 1996). Prima facie tort is a "highly disfavored cause of action." Restis v. Am. Coalition Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 730 n.15 (S.D.N.Y. 2014).

Plaintiff's claim fails for multiple reasons. First, Plaintiff cannot "repeatedly avail[] [himself] of the terminology of defamation . . . to raise a claim of prima facie tort." McKenzie v. Dow Jones & Co., Inc., 355 F. App'x 533, 536 (2d Cir. 2009) (summary order) (citing Morrison v. Nat'l Broad. Corp., 280 N.Y.S.2d 572, 574 (1967)). In other words, where a prima facie tort claim relates to the dissemination of allegedly defamatory materials, it cannot survive. Id. Second, as discussed above, there is no basis to find that Cahill was "motivated solely by malice." Id. (a prima facie tort cause of action will fail "even if the actions complained of were motivated in part by a desire to injure the plaintiff"); see also Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir. 1990) ("The touchstone [of prima facie tort] is 'disinterested malevolence', meaning that the plaintiff cannot recover unless the defendant's conduct was not only harmful, but done with the sole intent to harm." (citation omitted)). Third, Plaintiff cannot show that the allegedly defamatory emails were sent "without excuse or justification"; instead, it is clear from the facts presented that the emails were, at least in part, sent to support Cahill's and Moody's work. Thus, even drawing all inferences in Plaintiff's favor, this claim cannot survive.

4. Aiding and Abetting

Plaintiff also raises a claim against Lau for aiding and abetting based on his allegation that "Lau knew that tracked changes was standard operating procedure and thus that an evil intent motivated Cahill's contrived ignorance after Cahill requested untracked drafts to use in defaming me." (P's Reply Mem. 15.) There is simply no basis for this entirely conclusory allegation. As an initial matter, as detailed above, Plaintiff has failed to establish primary liability for Cahill. In any event, even if Cahill had engaged in wrongful conduct, there is no basis for finding that Lau was aware of that conduct, see Pittman by Pittman v. Grayson, 149 F.3d 111, 123 (2d Cir. 1998), nor is there a basis for finding that Lau gave "substantial assistance or encouragement" to Cahill, id.; see also Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt. LLC, 479 F. Supp. 2d 349, 370-71 (S.D.N.Y. 2007) (aider and abettor liability requires that the defendant "proximately caused the harm on which the primary liability is predicated" in such a way that the plaintiff's injury was "a direct and reasonably foreseeable result of the conduct"). The inferences that Plaintiff's suggests are patently unsupported and thus the aiding and abetting claim must be dismissed.

V. Conclusion

For the reasons stated above, Defendants' motion for summary judgment is GRANTED, and Plaintiff's request to amend his complaint and motion for summary judgment are DENIED. The Clerk of Court is respectfully directed to terminate the pending motion at Doc. 99 and close the case.

SO ORDERED. Dated: March 31, 2017

New York, New York

/s/_________

Vernon S. Broderick

United States District Judge