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July 2, 1992

ADRIA LABORATORIES, a division of, ERBAMONT INC., and ERBAMONT INC., Defendants.

The opinion of the court was delivered by: WILLIAM M. SKRETNY



 Before this Court is defendants' motion and plaintiff's cross motion for summary judgment pursuant to Fed. R. Civ. P. 56.

 The plaintiff, Marilyn Melnyk ("plaintiff") has filed a three count Complaint alleging wrongful discharge stemming from breach of contract, unlawful sex discrimination and unlawful age discrimination.

 This Court has jurisdiction based upon diversity of citizenship under 28 U.S.C. § 1332 and the federal claims raised pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000(e), and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a). New York law controls with regard to the issues outside the scope of the federal statutes.

 This lawsuit arises out of the discharge of plaintiff by her employer Adria Laboratories, a division of Erbamont Inc. ("Adria" or "defendant"). In 1984 plaintiff left her position with Roswell Park Memorial Institute ("Roswell") and commenced employment with defendant as a sales representative. In her complaint, plaintiff alleges that defendant's "Employee Handbook" (the "Handbook") created an employment contract which established conditions for discharge and that she relied on the representations in the "Handbook" in deciding to accept the position with Adria. Plaintiff also alleges that defendant breached this employment contract by dismissing her on November 17, 1987, in a manner inconsistent with the procedures outlined in the "Handbook." Furthermore, plaintiff contends that unlike male employees charged with similar offenses, she was not given a full opportunity to challenge the charges against her and that this differential treatment represents unlawful sex discrimination, in violation of 42 U.S.C. § 2000(e). Plaintiff also contends that the decision to terminate her was unlawfully based upon her age, in violation of 29 U.S.C. § 623(a)(1). Finally, plaintiff alleges that Adria's decision to terminate her based upon age and sex violated § 296 of the Executive Law of the State of New York. On these claims for wrongful discharge, plaintiff seeks damages in excess of $ 336,000.

 Defendant has moved for summary judgment arguing that plaintiff was an employee at will and, under New York common law was subject to discharge for any reason or no reason. Notwithstanding its right to discharge plaintiff at will, defendant claims that plaintiff's discharge resulted after an internal investigation revealed that she had falsified company records and violated Adria's code of ethics. Finally, defendant contends that plaintiff has failed to provide sufficient evidence that the circumstances of her discharge created any possible inference of discrimination.

 Opposing defendant's summary judgment motion, plaintiff argues that issues of fact exist as to whether an employment contract was established between the parties. Furthermore, plaintiff has filed a cross motion for summary judgment with respect to her sex and age discrimination claims.

 In support of her cross motion for summary judgment, plaintiff has submitted a memorandum of law ("pl.memo"), a reply memorandum ("pl.reply"), a supplemental memorandum ("pl.supp."), an affidavit of Marilyn Melnyk with exhibits ("Melnyk"), an affidavit of plaintiff's counsel Thomas Gill with exhibits ("Gill"), a memorandum in support of a motion to strike ("pl.strike") and a statement of undisputed facts.

 This Court has considered all of these submissions and the oral argument held on March 21, 1991.

 For the reasons discussed below, this Court hereby GRANTS defendant's motion for summary judgment on plaintiff's breach of employment contract claim and age discrimination under the ADEA and New York Executive Law § 296 claims; hereby DENIES defendant's motion for summary judgment on plaintiff's sex discrimination claim under Title VII and § 296 of New York's Executive Law. Furthermore, this Court hereby DENIES plaintiff's cross-motions on the same.


 Marilyn Melnyk was hired by Adria as an oncology sales representative on December 3, 1984 (Melnyk P 3; Komenda P 3). She began work while on sabbatical from Roswell (pl.memo p.11; Melnyk P 5). It was only after having worked at Adria for a few months that she resigned from her position at Roswell (Melnyk P 7). Plaintiff asserts that in making this decision she relied upon statements in the Handbook. She interpreted the statements at E-2-F and E-3-F to mean that her employment would be terminated on the first occurrence of a major offense, but not for minor offenses such as absence, tardiness, or leaving work early. (Melnyk P 8; pl.memo p. 11-12; Lane exh. F). Although plaintiff acknowledges she was an employee at will, she contends that these provisions limited defendant's right to terminate her at will (pl.memo p.36).

 The only written agreement signed by plaintiff was Adria's Pledge of Ethics (Komenda P 4; Melnyk P 9; Lane exh A). Adria uses this document to advise its sales representatives of their employment and ethical responsibilities that require them to act honestly and ethically, to handle Adria's drugs in a careful and ethical manner, to report sales calls honestly, and to put in a full day's work on every business day. Additionally, the pledge indicates that a violation of any of its provisions is grounds for immediate termination of employment (Lane exh. A; Mitro P 18-20; Komenda P 4; RKomenda P 12-14).

 During the summer of 1987, Thomas Komenda, District Manager in Adria's oncology sales division and plaintiff's direct supervisor, while reviewing Melnyk's phone call expense reimbursements, noticed that she was making a large number of phone calls from her home during business hours and that many of these calls were personal in nature (Komenda P 1-2). This conduct violated Adria's Pledge of Ethics that requires sales representatives to be in the field during business hours. Komenda claims to have previously warned plaintiff that she was violating Adria policy by not conducting her business in the field. (Komenda P 6-7; Lane exh A). However, plaintiff asserts that Komenda never warned her that such conduct was impermissible; to the contrary, she claims he was aware of such conduct for the entire three years she had worked at Adria (Melnyk P 20, 30).

 Komenda, Wolfe, and Mitro discussed these observations and agreed that confirmation had been obtained, establishing that Melnyk was not in the field during regular business hours. Mitro then forwarded this information to William Rohn, the Director of Adria's Oncology Products Group, and William Pettit, Adria's Vice President of Human Resources. (Lane exh B). On October 18, 1987, Rohn, in consultation with Petit, made the decision to terminate Melnyk's employment and informed Mitro of the decision. Mitro then instructed Wolfe and Komenda to meet with plaintiff and fire her. (Lane exh B). Such meeting was held on November 17, 1987, and plaintiff was informed that she was being terminated for failure to go to work in her territory during regular business hours and for failing to report that absence to her district manager as required by the Pledge of Ethics. (Komenda P 15-16). Because she was given no opportunity to contest the charges against her, plaintiff maintains that she chose to resign rather than be fired. Moreover, plaintiff contends that were it not for the fact that she was summarily discharged, she could have produced evidence to prove that she had not been involved in any misconduct (Melnyk P 70).


 Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Under this rule, "the moving party has the burden of showing the absence of a genuine issue as to any material fact." Adickes v. S.H. Kress and Company, 398 U.S. 144, 156, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 91970). Furthermore, this Court emphasizes that in considering a motion for summary judgment the evidence and the inferences to be drawn therefrom must be "viewed in the light most favorable to the party opposing the motion." Id., at 158-159, at 1609; Arledge v. Stratmar Systems, Inc., 948 F.2d 845, 847 (2d Cir. 1991). If the moving party has made a sufficient showing, the non-moving party then must present evidence to show "that a reasonable jury could return a verdict" in its favor to defeat the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). However, a motion for summary judgment will not be defeated merely on the basis of conjecture or surmise. Bryant v. Maffucci, 923 F.2d 979, 985 (2d Cir.) cert. denied, U.S. , 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Under the standards articulated above, the function of the district court in considering a motion for summary judgment is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue, to be tried. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).


 A. Plaintiff's Motion to Strike

 Initially, plaintiff moves to strike paragraphs 3-5, 8, 12, 13 and 15 of the affidavit of Robert Lane, Esq., arguing that the statements in these paragraphs are not based upon personal knowledge and therefore fail to comply with Fed.R.Civ.P. 56(e) (pl.strike p. 1-2). Although Lane lacks personal knowledge of the facts in these paragraphs, each of the challenged paragraphs, except for paragraph three, cites an attached exhibit or the Komenda affidavit. Furthermore, the information in paragraph three is provided in paragraph four of the Komenda affidavit. Finally, Mitro has submitted an affidavit in response to this motion that provides additional foundation for the facts asserted in Lane's affidavit (Mitro PP 17-24). As such, the challenged paragraphs of the Lane affidavit add no new material information, but are mere reaffirmations of information already in the record. Consequently, this Court views the Lane affidavit merely as a "road map," a procedure this Court has utilized before, with respect to the documentary evidence in the record, and therefore finds no personal knowledge deficiency. See Maier-Schule GMC, Inc. v. General Motors Corp., 780 F. Supp 984, 988 (W.D.N.Y. 1991).

 Accordingly, this Court denies plaintiff's motion to strike.

 B. Plaintiff's Breach of Employment Contract Claim

 Defendant contends that plaintiff's breach of employment contract claim must fail for three reasons. The first is that plaintiff's employment was one at will which under New York common law is terminable at any time for any reason. Defendant, noting that by plaintiff's own admission her employment was at will, argues that no agreement exists which limits defendant's right to terminate her employment at will. The second reason is that even if plaintiff had an employment contract, her termination was implemented in full accordance with Adria's termination policies. The third reason concerns plaintiff's claim for wrongful discharge. Defendant points out that New York courts have refused to recognize a cause of action for wrongful discharge when an employee is terminable for any reason.

 In response, plaintiff concedes that she was an employee at will. However, she asserts that defendant had specifically promised her that if accused of misconduct she would not be terminated for her first minor offense. This guarantee, plaintiff claims, is found in Adria's Handbook. Based upon this and other guarantees contained therein, plaintiff asserts that Adria modified its right to terminate her at any time for any or no reason. Furthermore, plaintiff alleges that ...

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