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Red Cross Off the Hook

In Amarosa v. American National Red Cross, the Eastern District of New York court granted the defendants’ motion for summary judgment. Amarosa argued that she was a victim of age discrimination. Age discrimination claims brought under the NYSHRL are analyzed in the same manner as federal claims brought under the Age Discrimination in Employment Act (“ADEA”). A plaintiff must establish a prima facie case of discrimination by showing: (1) she belonged to a protected class, (2) was qualified for the position she held or sought, and (3) suffered an adverse employment action (4) under circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir.2003).

In June 2010, Amarosa was terminated from her position as Executive Director of the Suffolk County Red Cross after she was first given the option to resign or retire and refused. Amarosa argued that she was discriminated against due to her age, as evidenced by the fact that (1) her replacement was thirty-five years old at the time of his hiring, (2) the meeting where she was told to resign or to retire, and (3) by comments made to her by Theresa Bischoff, the CEO of the Region, and by David D’Orazio, the Chapter’s Board Chairman. Specifically, Amarosa stated that D’Orazio was “constantly” asking her when she was retiring and that he made statements like, “[t]his job must be really getting to you. You really should think about leaving. You know, you put in a lot of hours.” Amorosa additionally added that Bischoff asked her about her plans to retire on more than one occasion and that D’Orazio made comments about her physical condition.

In response, the Red Cross contended that Amarosa was terminated for her negligence in discovering fraud committed by her employee Deborah Leggio, who embezzled approximately $274,000 between 2004 and 2009 with an ATM card linked to the Chapter’s operating account. The issuance of the ATM card to Leggio was authorized by Amarosa. The Red Cross argued that Amorsa should have conducted a background check of Leggio, rather than delegating all such background checks to Leggio herself. Leggio’s background check would have shown Leggio’s criminal background included a prior conviction for grand theft for stealing from a former employer. The Red Cross explained that they determined that Amarosa should be terminated because she was negligent in discovering and preventing Leggio’s embezzlement, and that they offered Amarosa the option of retiring in order to protect her reputation.

Here, the court determined the Red Cross did not establish a prima facie case. Her immediate replacement was actually fifty-nine years old, and he held the position for over six months before the thirty-five year old was hired. Beyond that, the court determined no reasonable juror could conclude by a preponderance of the evidence that Red Cross’ given reasons for firing Amarosa were pre-textual and that age was the real reason for terminating her employment. She did not present any evidence that established the employer did not “honestly believe the reasons it gave” for terminating her and that age “tipped the balance” in favor of discharge. Hardy v. Gen. Elec. Co., 270 A.D.2d 700, 703 (3d Dep’t 2000). The mere fact that a younger employee eventually replaced the Amarosa did not establish pretext. The only other evidence of discrimination that Amorsa provided was testimony regarding the Red Cross’ comments, but here the court found these “stray” remarks carried little probative weight. Amarosa even admitted she should have been disciplined for Leggio’s theft and stated she believed she was terminated because of it. Therefore, the court found that no rational fact finder could conclude that the Red Cross’ action in terminating Amorsa was discriminatory.

If you believe you have been the victim of age discrimination, please contact our office at (212) 323-6980 or at

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