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CRONIN v. ITT CORP.

March 26, 1990

MICHAEL J. CRONIN, PLAINTIFF,
v.
ITT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:

MEMORANDUM & ORDER

Plaintiff Michael J. Cronin brings this action alleging that defendant ITT Corporation ("ITT") discharged him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1982) and the New York Human Rights Law, N Y Exec. Law § 296 (McKinney 1982 & Supp. 1990) and then retaliated against him for complaining about his ineligibility for an enhanced retirement plan. ITT moves pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaint.

FACTS

During the latter half of 1986, ITT engaged in negotiations with Compagnie Generale d'Electricite ("CGE") regarding the sale of substantial portions of ITT's business operations, including its telecommunications business. These negotiations were finalized in an agreement that took effect on December 31, 1986. Pausig Affid. ¶ 3. As a result, ITT engaged in a large-scale reduction of force and reorganization to "streamline" its headquarters operations.*fn1 Defendant's Rule 3(g) Statement ¶¶ 3, 4. At ITT's corporate headquarters in New York, where Cronin worked, approximately one-half of all employees resigned, retired, or were discharged. Pausig Affid. ¶ 4.

In October 1986, ITT announced a Voluntary and an Involuntary Separation Program to achieve the reduction in force. See Shoemaker Affid., Exh. D. As part of this effort, ITT offered certain headquarters employees an Enhanced Retirement Program ("ERP" or "Program") as part of its departure benefits or "Separation Program." The ERP benefits were substantially greater than ITT's pre-existing executive termination severance benefits. To qualify for the Program, employees had to have a minimum of five years of ITT service and had to be age fifty by December 31, 1986. Defendant's 3(g) Statement ¶ 7.

With the sale of major subdivisions to CGE, it was expected that far less litigation would need to be handled by ITT. Cronin Dep. at 86; Mackey Dep. at 40, 55.*fn2 Leonard Mackey, the Vice President and head of the intellectual property section of ITT's legal department and Cronin's supervisor, became responsible for reducing staff of the patent department in connection with ITT's divestitures. Mackey attests that, following the sale by ITT of major business units to CGE, he determined how the patent department would best be handled with the fewest attorneys. Mackey Affid. ¶ 3. He then identified five attorneys, out of the total of ten in the department, who were best qualified to provide needed services for the remaining litigation. As a result, the number of attorneys in the department was reduced by fifty percent. Mackey Affid. ¶ 3.

Cronin, who had been with ITT as a patent lawyer since 1969, was principally responsible for the supervision of patent litigation at the headquarters patent department. Cronin Dep. at 304. He first learned of the impact the reduction in force would have on him when his immediate supervisor Edward Fitzpatrick advised him on October 7, 1986 that "litigation or licensing was a function that was out." Cronin Dep. at 271. By October 13, 1986, Mackey advised Cronin that his position would be eliminated as a result of the reorganization. No new employee was hired to assume Cronin's responsibilities. Mackey, age sixty-one, and Lawrence Swire, age forty-seven, assumed Cronin's supervisory responsibilities for the remaining patent litigation. Mackey Affid. ¶ 8.

Cronin testified at his deposition that on October 13, 1986, Mackey offered, on ITT's behalf, to employ Cronin from October 1986 until October 1987 and that Cronin accepted the offer.*fn3 Cronin Dep. at 48-49; Plaintiff's 3(g) Statement ¶ 2. Mackey denies ever having this conversation with Cronin. Mackey Dep. at 79. Cronin understood the "regular" termination date to be December 31, 1986. As of December 31, 1986, Cronin was forty-nine years old and thus did not qualify for enhanced benefits under the ERP.

In early November 1986, Cronin demanded, orally and in writing, that the ERP benefits be provided to him. Complaint ¶¶ 15-16.*fn4 Cronin's requests for benefits were denied. Both before and after making these requests, Cronin complained to ITT about its discriminatory application of the Separation Program. Cronin Dep. at 333, 338.

In or about November and December 1986, Cronin, along with other employees who were to be discharged, or who resigned or retired, was provided with a Separation Agreement by ITT. Defendant's 3(g) Statement at 9; Defendant's Motion for Summary Judgment, Exh. H. The Separation Agreement contained a provision that released ITT from any claim the employee might have in connection with his or her discharge. For those departing employees with ten or more years of ITT service who signed it, the Separation Agreement provided a "special award" in the amount of three months salary over and above any compensation or severance entitlement.

Cronin refused to sign the Separation Agreement and did not receive the "special award." He received, however, normal severance pay, which was not conditioned on signing the Separation Agreement. Cronin Dep. at 135-137. Cronin testified that in a telephone conversation, Mackey told Cronin that he would not be employed until October 1987 because of his failure to sign the waiver of age discrimination claims. Cronin Dep. at 137. Cronin was fired as of December 31, 1986, and his salary payments ceased as of September 11, 1987. Cronin Dep. at 11.

On August 7, 1987, Cronin filed a charge with the Equal Employment Opportunity Commission and the New York State Division of Human Rights alleging age discrimination and retaliation. The action before the New York State Division of Human Rights was dismissed for administrative convenience. Shoemaker Affid. Exh. B.

DISCUSSION

Under the ADEA it is "unlawful for an employer to discharge an employee because of that employee's age." Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (Cir. 1990). This protection extends to employees who are at least 40 years old. 29 U.S.C. § 631(a). Because the substantive prohibitions under the ADEA mirror those under Title VII of the Civil Rights Act of 1964, the Second Circuit has held that the "the evidentiary framework measuring discrimination under the ADEA borrows from Title VII case law." Id. In considering a disparate treatment claim, as represented here, courts follow the three-step analysis initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Title VII). Id. Under that analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The burden then shifts to the employer to counter the ...


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