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March 31, 1992

LUISE M. ROSS, Plaintiff, -vs- ARCATA GRAPHICS COMPANY, Defendant.

The opinion of the court was delivered by: JOHN T. ELFVIN


 The plaintiff ("Ross") brings this action alleging that she was discharged from her employment because of her age, gender and national origin in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. and section 296 of New York's Executive Law ("Exec.L."). Ross also alleges that her discharge constitutes a breach of contract and wrongful discharge.

 Presently the defendant ("Arcata") moves for summary judgment arguing that Ross has failed to establish that her discharge was improperly based on age, gender or national origin and that her Exec.L. § 296 claim is barred because Ross elected a remedy pursuant to Exec.L. § 297. In her answering papers Ross has withdrawn her gender discrimination claims, her breach of contract claim and her wrongful discharge claim, leaving for determination only those claims of discrimination based on age and national origin.

 Ross was hired by Arcata in 1972 as a non-exempt part-time secretary to the Professional Services Manager. Within one year she was given the title "Assistant to the Professional Services Manager." In December 1974 Ross was promoted to a full-time position as a Recruiter. Six months later she was given the position of Assistant Personnel Manager and held such position until her dismissal in April 1986, at which time she was fifty-nine years old.

 In her capacity as Assistant Personnel Manager Ross was responsible for recruitment, wage and salary administration and administration of the Organization Management Development Plan. During her tenure at Arcata, Ross consistently received favorable performance evaluations. In her last review before her termination Ross was rated as a "#5" in each of the review categories. Arcata defines #5 as "an individual who meets the high standards of performance expected for this position and who is recognized as functioning at the level of a fully effective and qualified employee." See Plaintiff's Affidavit in Opposition to Motion for Summary Judgment, Exhibit F.

 In January 1986 Robert Swam, President of Arcata, told corporate managers that a ten percent cost reduction was necessary. At this time Wes Zimmer was the head of the Buffalo Division of Arcata, for which position he had been hired in 1983. Since assuming that position, Zimmer attempted to establish a new atmosphere at the division and repeatedly stated that he wanted "new blood" and "fresh blood" in the division. In exploring ways to achieve the necessary cutbacks, Arcata considered offering an incentive retirement plan; however such plan was rejected in early February.

 On March 7, 1986 Donald McCready was hired to replace Frank O'Connor as Human Resource Manager. O'Connor claims that he was asked to leave such position because he was not in agreement with Arcata's policy to terminate people without regard for seniority in order to effectuate the cost reductions. During his second week of employment at Arcata, McCready met individually with all the employees in the Human Resource Department. He met with Ross and, noticing that she had a German accent, asked her if she were German. After she stated that she was, he commented, "You know what they say about Germans?" After conducting these interviews, McCready decided that there were too many employees in the department and that three employees would have to be discharged. He never specifically stated why he decided that three people needed to be discharged, except to say that from his past experience he knew he could run the department with fewer people.

 On March 27, 1986 McCready sent a memo to various managers stating his "Get Well Recommendations" for the Buffalo Division. One of these recommendations was to "ferrett [sic] out employees who have peaked and leveled out in their career [sic]." Another was to create an active intern program with a college or university from which the division could recruit new engineers.

 Sometime during this period during which Arcata was considering cutbacks, Zimmer requested a list of persons who were over fifty-five years of age and highlighted various names on this list. He also requested that a list of employees who were rated as "stable" in their careers. On April 2, 1986 Zimmer notified various managers that he had asked McCready to put together a "need" chart which would identify essential and non-essential information being generated by various employees. In deciding which employees were to be fired, Arcata considered whether the jobs they were respectively performing were necessary to the efficient functioning of the corporation. Zimmer states that he looked at what functions were needed in order to run the company effectively and then decided who could perform those functions. In determining who could, Arcata looked at personal performance, ability to assume additional tasks and overall job knowledge. While Arcata now has articulated the above criteria for the discharges, there are no contemporaneous records indicating the criteria which were used. All decisions were reached during meetings and no minutes of those meetings are available.

 On April 11, 1986 McCready discharged three employees from his department. Irene Kuzon, an Executive Secretary, age 65, the oldest employee in the department, was discharged because her position was consolidated with a secretary's position from another department. Ross, age 59, the third oldest employee in the department, was discharged because her position was consolidated with the Personnel Manager's position. *fn1" Benedicta Buchta, age 21, was transferred to another department because her position was eliminated.

 Arcata claims that Ross was discharged because it had decided that Gerard Rath, the Personnel Manager, would be able to carry on the functions of both the Personnel Manager and the Assistant Personnel Manager. Arcata, therefore, merged the two positions and Ross was discharged. A personnel action form completed for Ross indicated that she was discharged because of "Department reorganization to meet challenges of the 80's -- Position eliminated and merged into the Personnel Manager's functions." In April 1989 Rath was fired for poor job performance and Ross was not recalled. In October 1987 John Brennan, age 35, was hired to replace Rath as Personnel Manager.

 All Arcata employees who were discharged in the 1986 layoffs were entitled to severance pay which included one week of salary for every year of service up to twenty-six weeks total and accrued vacation. In order to receive this severance, Arcata required that the employee sign the following release:

 "I acknowledge that by signing this agreement, I voluntarily accept this arrangement in settlement of and release Arcata Graphics Company, Arcata Graphics/Buffalo from any claim I may have arising out of my employment or the termination thereof, including but not limited to claims for severance, vacation and termination pay, lost wages and continuation of employment, excluding only benefits I may have under the Arcata Pension Plan. I understand and agree on behalf of myself and my estate that if I breach this agreement or if I or my estate commences any proceeding against the Company, all payments and benefits provided herein shall cease and I or my estate shall be required to reimburse the Company for all payments and benefits I received under this agreement prior to such time."

 Ross signed this release, which was included in a Release and Severance Agreement, immediately after she had been told that she was being discharged. McCready, who asked her to sign the release, observed that she was shocked and very upset. Ross received severance pay of $ 12,148.40 which was paid to her in installments from April 18, 1986 to July 18, 1986 and during this period she was provided with all the group medical, hospitalization and life insurance benefits she had been receiving while actively employed.

 Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. rule 56(c). In making such a determination, a court must view the facts in the light most favorable to the non-moving party and any doubts as to the existence of a genuine issue for trial should be resolved against the moving party. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).

 The moving party bears the initial burden of establishing that no genuine issue as to a material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the non-moving party would bear the burden of proof on a claim at trial, the moving party may satisfy its burden by demonstrating an absence of evidence to support an essential element of such claim. Id. at 325. Once the moving party has established its initial burden, the non-moving party must set forth specific facts showing that there is a genuine and material issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Such a showing must consist of ...

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