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COLE v. CBS

May 27, 1986

JAMES ROBERT COLE, Plaintiff
v.
CBS, INC., Defendant



The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J.:

The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 BACKGROUND

 Plaintiff James Robert Cole alleges that the defendant, CBS, Inc. ("CBS"), his former employer, violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, as amended (1983), in discharging him. See Complaint ("Compl.") at P 1. Specifically, Cole presents two claims, each under a separate provision of the ADEA. *fn1" First, Cole claims that CBS willfully discharged him solely on the basis of age in violation of 29 U.S.C. § 623(a). See Compl. at P 16. Second, Cole alleges that CBS violated 29 U.S.C. § 623(d) by supplying false information to the New York State Unemployment Insurance Division ("NYSUID") "to retaliate against [him] for his opposition to the discriminatory acts" and "his expressed reservation of the right to file an age discrimination claim against CBS with the Equal Employment Opportunity Commission ["EEOC"] and the New York State Division of Human Rights ." See Compl. at PP 1, 13.

 CBS seeks dismissal of Cole's age discrimination claim on the ground that it is time-barred under 29 U.S.C. § 626(d). A hearing addressing this issue was held before this Court, see Tr. at 57, and post-hearing memoranda were filed. *fn2" The retaliation claim, however, was not adequately addressed by either party. Therefore, the Court, in the interest of fairness, will not address the retaliation claim at this time.

 FACTS

 Cole was employed by CBS for twenty-seven years. See Compl. at P 7; Answer ("Ans.") at P 7; Tr. at 8 (Cole's testimony). From February of 1969 through July 14, 1980, he served as the vice-president and chief operating officer ("VP/CEO") of the CBS Radio Division -- CBS-Owned FM Stations ("CBS-FM"). See Compl. at P 7; Ans. at P 7.

 Cole alleges that on July 14, 1980, J. William Grimes, the executive vice-president of the CBS Radio Division and Cole's immediate superior, see Tr. at 2-3, informed him that he was being replaced with a "younger guy." See Compl. at P 8. More specifically, plaintiff alleges that Grimes told him, "I'm going to take you out of the responsibility of running the FM group and put a younger man in the job to kick ass." See Tr. at 3. CBS denies that Grimes made the statement. See Consent Pre-Trial Order ("PTO") at 9. *fn3" Additionally, plaintiff alleges that Grimes informed Cole that he would be substantially stripped of his responsibility, but could remain on the payroll through April 2, 1982, his fifty-fifth birthday. *fn4" See Compl. at P 8. Grimes presented Cole with a schedule of options concerning his retirement benefits. See Tr. at 4, 28-29; Defendant's Exhibit ("Def. Ex.") 5. Cole testified that Grimes encouraged him to explore possible employment in "other divisions of [CBS] in the hopes of staying with CBS past [his] 55th birthday." See Tr. at 3, 6 (emphasis added).

 Cole alleges and CBS does not deny that CBS offered Cole the use of an office and telephone until his fifty-fifth birthday. See Compl. at P 8; Tr. at 30. CBS alleges that Cole remained on the payroll through April 30, 1982, the month in which Cole turned fifty-five years of age. See Ans. at P 8; Def. Ex. 5; Tr. at 63. From July 14, 1980, through April 2, 1982, Cole performed no further duties for CBS. See Tr. at 18-19. Cole made use of office space and facilities provided by CBS until December 31, 1981, but removed himself from his executive office at CBS on July 14, 1980. See id. at 14, 18- 19. Robert F. Hyland, III, who was in his mid-thirties, filled Cole's position as vice-president on November 24, 1980. See Compl. at P 10; Tr. at 34; see also PTO at 9.

 After notification of his termination, Cole alleges that he entered into "two sets of negotiations with CBS in an attempt to retain his employment after his fifty-fifth birthday." See Compl. at P 9. Cole alleges that CBS was "unwilling to alter its intention to replace him with a younger person." Id. Additionally, Cole spoke with several people within CBS, including the Radio Division and other divisions, concerning employment elsewhere within the company. See Tr. at 9-14. *fn5" Although he did not secure a position, Cole conceded at trial that no one within CBS discouraged him from seeking employment in a position other than his former position within the company. See id.

 On April 13, 1982, Cole filed charges with the EEOC, alleging that his termination was based solely on his age. See Compl. at P 4; Def. Ex. 1. On March 23, 1983, Cole commenced this action against CBS, asserting jurisdiction under 29 U.S.C. § 626(c) and 28 U.S.C. § 1331. See Compl. at P 3. Cole seeks damages for lost earnings (including bonuses, pension, and other benefits), liquidated damages provided by section 626(b), and costs and attorney's fees. See Compl. at 5-6. Venue is properly asserted, and is not disputed. See PTO at 2.

 DISCUSSION

 I. STATUTE OF ...


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