fired Stein because of his low output. The Court in essence has upheld the defendant's contention by finding that Stein was not qualified for his job in that his productivity was insufficient. The Court also has determined that Stein was not fired under circumstances giving rise to an inference of discrimination. The plaintiff therefore cannot establish that the reason given for his discharge was pretextual. See Plaisner v. New York City Human Resources Admin., 50 Empl. Prac. Dec. (CCH) para. 38,956, at 57,127 (S.D.N.Y. 1989), aff'd, 888 F.2d 1376 (2d Cir. 1989).
For the foregoing reasons the Court grants defendant's summary judgment motion dismissing plaintiff's ADEA claim. The Court also grants defendant's summary judgment motion and dismisses Stein's New York Human Rights Law claim, because the "same elements and burdens of proof apply" to a discrimination claim under the ADEA and New York's Human Rights Law. Vaughn v. Mobil Oil Corp., 708 F. Supp. 595, 599 (S.D.N.Y. 1989).
II. Severance Pay
Plaintiff asserts that McGraw-Hill's refusal to pay him severance benefits violates its contractual obligations to plaintiff. Plaintiff relies on the terms of McGraw-Hill's Policies and Procedure Manual in asserting his claim to severance pay. The manual lays out when an employee may or may not receive a separation allowance. Even assuming arguendo that the terms of the manual constitute an implied part of his employment contract, see Saunders v. Big Brothers, Inc., 115 Misc. 2d 845, 454 N.Y.S.2d 787, 789 (Civ. Ct. 1982), plaintiff fails to state a claim for benefit payments.
The manual describes the rationale behind McGraw-Hill's policy as follows: "McGraw-Hill considers itself obligated to provide extra payments only to employees terminated for reasons the company feels responsible for, including eliminating or changing a job, or placing a person in a job that he or she cannot handle even though trying." It then lists six instances when an employee may receive these benefits:
Separation allowance will be paid to regular employees with the necessary qualifying service who are terminated by the company because of: 1. Lack of qualifications for the position; 2. Changed requirements of the position; 3. Reduction of force. 4. Disability 5. Some other reason which the company assumes responsibility for and which is not the employee's fault. 6. Under rare circumstances, separation pay may be authorized for terminations deemed to be the employee's fault. Approval of the Senior Vice President - Human Resources is required in such cases.
The plaintiff does not allege that he falls into any of these six categories. Furthermore, the company, as represented by Mr. Stein's superiors, clearly does not "feel responsible for" Mr. Stein's termination. The letters and performance reviews indicate that the plaintiff's supervisors terminated him because they believed that Mr. Stein failed to write a sufficient number of articles. Thus Mr. Stein's situation fits neither the letter nor the spirit of the qualifications for severance pay.
Additionally, the company explicitly states in the manual that it does not pay a separation allowance if the employee: "is discharged for unsatisfactory performance due to absenteeism, tardiness, attitude, lack of application to job, misconduct, or other reasons considered by management to be the employee's fault." (emphasis added). The defendant has established that it discharged the plaintiff based on Stein's superiors' good faith beliefs that his productivity was too low. The plaintiff contends that the issue in a severance pay claim is whether the employer objectively had good cause to fire the employee, not the employer's perceptions of the employee's work. The cases the plaintiff cites for support, however, arise in the context of ERISA claims and contracts terminable "for cause," and plaintiff has withdrawn his motion to amend his complaint to allege an ERISA cause of action. In the instant case the manual makes it clear that a discharge for a reason that the management considers to be the employee's fault is sufficient to deny severance pay, even if a disinterested observer might find the employee not to be responsible.
The defendant's motion for summary judgment dismissing the severance pay claim therefore is granted. Furthermore, plaintiff's claims for severance pay, penalties, fees and liquidated damages pursuant to the New York Labor Law § 198 must be dismissed because plaintiff did not prevail on his wage claim. See N.Y. Lab. Law § 198 (restricting remedies under this section to those prevailing on their wage claims).
Because Court has dismissed all the claims in this case, the clerk of the court is directed to remove this case from the active docket.
Dated: New York, New York
January 8, 1992
JOHN S. MARTIN, JR., U.S.D.J.