ADEA, the conduct need only have "an adverse impact on the plaintiff." Id.21
Therefore, in light of the remedial purposes of the ADEA, plaintiff's allegation that his benefits were terminated in retaliation for filing a complaint with the EEOC states a cognizable cause of action. The plaintiff need only allege, and offer enough evidence to survive a motion for summary judgment, that the adverse employment action resulted from "an employer's use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another." Pantchenko, 581 F.2d at 1055. Here, the plaintiff submitted proof that his health benefits, which were to continue until age 65, were terminated because he filed an age discrimination claim with the NYSDHR and the EEOC. This is sufficient.
V. ISSUES OF FACT PRECLUDING SUMMARY JUDGMENT.
There are several factual disagreements between the two parties precluding summary judgment:
First, plaintiff claims that he was terminated from his job at Mail Boxes because of his age, and that two college students (a son and daughter of two Wine Merchants Vice Presidents) replaced him at similar salaries. Defendants respond that plaintiff requested the layoff because of his concern that he would exceed the social security income restriction. Defendants' Notice of Motion, Exhibit "G". at 60-65. However, plaintiff states that he merely spoke with D. Reisman about his concern of exceeding the social security limit, and denies any suggestion that he requested taking some time off later in the year. In fact, plaintiff claims that he was in no danger of exceeding the social security income restriction in March 1989.
Both parties do agree that it was D. Reisman who suggested that plaintiff should take some time off during the months that the store was not busy. Plaintiff states that no agreement was ever made concerning whether, or when, he would take some time off. Defendants respond that they decided to accommodate plaintiff's request for time off during the summer months, that it was their choice when plaintiff would be allowed to take the necessary time off, and that his layoff would end in September. In addition, defendants contend that it makes no sense to hire someone who is in the protected class, with full knowledge of his age, then five months later fire him because of his age. See Proud v. Stone, 945 F.2d 796 (4th Cir. 1991). Plaintiff, however, alleges that a return-to-work date was never discussed, nor was he given any indication that he would be rehired.
Second, defendants claim, as stated in their NYSDHR response, that plaintiff was laid off from Mail Boxes because his work was unsatisfactory. Plaintiff, however, responds that he never received any oral or written notification concerning his job performance, nor did he receive any negative job evaluation. In addition, he contends that defendants' claim of unsatisfactory work performance is rebutted by the fact that he was offered reemployment in September, 1989.
Third, plaintiff contends that defendants never had any firm intentions of rehiring him in September. In support of this contention, he directs the court's attention to defendants' response to his NYSDHR complaint. In that response, defendants state that,
The reason Mr. Cohen was laid off was because he did not deal with customers in a satisfactory manner coupled with a down turn in business representing seasonal fluctuation which occurs during the summer months . . . [and] it was hoped that in the fall when we would anticipate a pick-up in the business, we would be in a position to hopefully rehire Mr. Cohen [in a different position].
Affidavit of Richard Hughes, Exhibit "1", Deposition Exhibit "13", P 5. Plaintiff alleges that, based on this response, defendants had no intention of rehiring him in September unless business returned to its presummer level.
Fourth, plaintiff claims that he was promised by M. Reisman that his health benefits would be continued by Wine Merchants until age 65, but were terminated in September 1989, in retaliation for filing his NYSDHR complaint.
Defendants state, that after plaintiff's coverage expired in February 1989, pursuant to an eighteen month election provision of the COBRA, Wine Merchants was able to gratuitously extend his benefits for an extra six months, and in September 1989, the coverage expired. Further, in deposition testimony, plaintiff states only that upon reinstatement of his benefits was he told to "start sending in [his] checks again." There is no indication from plaintiff that he was promised that benefits would continue until age 65. Defendants' Notice of Motion, Exhibit "G", at 112. However, in light of the memorandum, supra, footnote 24, and the facts surrounding the extension of benefits to another employee, Daniel Johnson, a sufficient question for resolution by the trier of fact has been raised.
Finally, the parties disagree as to the reasons why plaintiff turned down a subsequent employment offer at Wine Merchants, and the importance of such a decision. Defendants state that "nothing more clearly demonstrates the plaintiff's bad faith in filing an age discrimination complaint after requesting the lay off himself than the plaintiff's conduct in evading job offers after he filed his age discrimination complaint with the Division of Human Rights." Defendants' Memorandum of Law, at 11. Defendants then chronicle several reasons offered by plaintiff for his refusal to accept a position at Wine Merchants. However, defendants do not explain why such refusal supports their motion for summary judgment, except to argue that it is evidence of plaintiff's bad faith. Apparently defendants offer such testimony because this issue does factor into any issue of mitigation of damages. Dominic v. Consolidated Edison Co. Inc., 822 F.2d 1249 (2d Cir. 1987) (An ADEA plaintiff has a statutory obligation to mitigate his damages.) However, it does not figure into plaintiff's prima facie case of employment discrimination because of age. The damages issue to be resolved at trial, assuming the question is reached, is whether plaintiff turned down an employment offer that was "substantially equivalent" to his previous job from which he was terminated. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 232, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982) (Plaintiff "forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied.").
In sum, the court finds that: (1) S.U.P.A./Mail Boxes is an "employer" within the meaning of the ADEA; (2) plaintiff's claim of retaliation was properly filed with the EEOC; (3) plaintiff has stated a cause of action for retaliation; and (4) there exists issues of fact which preclude summary judgment.
Accordingly, it is
ORDERED, that defendants' motion for summary judgment is denied.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: February 23, 1993.
Utica, New York.