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