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BETZ v. LEGAL AID SOCY.

November 19, 1992

GERARD G. BETZ, Plaintiffs,
v.
THE LEGAL AID SOCIETY, Defendants.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Defendant in the above-captioned action moves for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, that motion is granted.

 BACKGROUND

 Plaintiff, Gerard G. Betz, was employed by defendant, The Legal Aid Society (the "Society"), since on or about June 1953, see Pre-Trial Order P 2, and was terminated from his employment on December 16, 1988. Id. P 1. *fn1" Prior to his termination, plaintiff was employed as an Assistant Attorney-in-Charge, designated as the Attorney-in-Charge of Administration of the Criminal Defense Division. Id. P 3.

 On September 28, 1988, Robert M. Baum was appointed as the Attorney-in-Chief for the Society, wherein one of his first tasks was to determine if restructuring of any of the management positions was appropriate. See Affidavit of Robert M. Baum (sworn to December 6, 1990) ("Baum Aff.") PP 3-4. After meeting with the plaintiff, Baum decided to eliminate the position of Assistant Attorney-in-Charge of Administration because the duties of that position could be performed as effectively and more efficiently by a non-attorney. *fn2" Id. P 6.

 Once this decision was made, Baum met with the plaintiff and offered him two options: (1) he could transfer to the position of Senior Trial Counsel at any of the borough offices with the same salary and benefits he was earning as the Assistant Attorney in Charge of Administration; or 2) he could elect early retirement under the terms of the Society's pension plan. Id. PP 8, 10. Plaintiff refused both of these options, claiming that he could not be removed from his position since Edward Q. Carr, the Society's Attorney-in-Chief from 1960 to 1973, had promised him that he would not be removed nor would his position be changed without his consent. *fn3" Id. P 11.

 After being informed that the President of the Society at the time plaintiff assumed his position as Assistant Attorney-in-Charge was not aware of any such promise, Baum informed plaintiff that it was the Society's view that he had no contractual right of lifetime employment, See PTO P 58. Plaintiff still refused to choose one of the two options, and consequently Baum informed him that he was being assigned to the Brooklyn office as Senior Trial Counsel with the same salary and benefits that he had been receiving previously, and that, if he did not choose to accept this position, his employment would be terminated. Id. PP 59-60; Defendant's Statement of Undisputed Material Facts Pursuant to Local Rule 3(g) of the United States District Courts for the Southern and Eastern Districts of New York ("Def.'s 3(g) Statement") P 42. Plaintiff did not report to work at the Brooklyn office and was consequently terminated on December 16, 1988. See PTO PP 61-62.

 Plaintiff filed this action on May 17, 1989, alleging claims under the Age Discrimination in Employment Act (the "ADEA"), New York State's Human Rights Law, and the Employee Retirement Income Security Act ("ERISA"), and claiming tortious discharge under New York law, breach of an oral contract and breach of an implied written contract. Subsequently, on July 24, 1991, *fn4" plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") and with the New York State Division of Human Rights ("SDHR"). *fn5" Id. PP 51, 53.

 On November 21, 1991, after the parties had submitted a Joint Pre-Trial Order containing all undisputed facts as well as each party's contentions of fact, defendants filed a renewed summary judgment motion. On December 24, 1991, plaintiff, claiming he misunderstood what he had signed when he signed the Joint Pre-Trial Order, filed an addendum which contained numerous material changes to the undisputed facts section. The defendant objected to the addendum and argued that it was filed solely to defeat the summary judgment motion and should not be accepted by this Court. The Court referred the issue to Magistrate Judge Naomi Buchwald for a hearing, who determined that the changes in the addendum to the pretrial order were not the result of honest error by the plaintiff. *fn6" See Memorandum and Order dated May 5, 1992.

 DISCUSSION

 At the outset, it should be noted that plaintiff's federal age discrimination claim must be dismissed as procedurally barred for failure to comply with the filing requirements of the ADEA. Under the ADEA, no civil action may be commenced until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC and with the SDHR. 29 U.S.C. §§ 626(d), 633(b) (1988). In addition, plaintiff must file a claim with the EEOC within 300 days after the alleged unlawful practice or within 30 days after notice of the termination of the state proceedings, whichever is earlier. Plaintiff, in complete disregard of these procedures, commenced a civil action prior to any filing with the EEOC or the SDHR, and did not file a charge with those agencies until two and one-half years after his termination. *fn7"

 Next, plaintiff claims that due to his termination he forfeited approximately 140 accrued and unused vacation/annual leave days in violation of ERISA. However, since the funds used by the Society for annual leave benefits are derived from the general assets of the Society and not from a separate fund, *fn8" these funds are not part of an "employee welfare benefit plan" within the meaning of ERISA. Massachusetts v. Morash, 490 U.S. 107, 104 L. Ed. 2d 98, 109 S. Ct. 1668 (1989). *fn9"

 Plaintiff also asserts that he was "caused to suffer loss of morale, confidence, self-esteem, humiliation and loss of reputation." See Verified Complaint ("Compl.") P 38. These allegations appear to be making a claim for intentional infliction of emotional distress which requires a showing of "extreme and outrageous conduct intentionally or recklessly causing severe emotional distress." Murphy v. Amer. Home Prods. Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232, 236 (1983). The only paragraph in the complaint which arguably relates to this claim states that there was a "rumor going around that Betz was going to resign" and that "unknown to Betz, his fate was general knowledge[.]" Compl. P 22. ...


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