year old overworked coworker, followed shortly thereafter by the transfer of some of the coworker's responsibilities to another 26 year old employee. Thus, not only was there a 30 year difference in the age of the employees, but a majority of the older employee's responsibilities were transferred to the younger employee and not eliminated.
Nor was defendant's failure to relocate plaintiff to a position in another location evidence of age discrimination. The evidence indicates that of the 135 persons laid off during the six month period from March to September 1990, none was offered relocation and 124 were younger than plaintiff. Moreover, plaintiff offers no evidence that defendant's policy against relocating employees (except in limited circumstances) was applied in a way that discriminated on the basis of age, and offers only one possible instance in which defendant did not adhere to its policy against relocating employees. Ironically, this one instance was the relocation of plaintiff prior to the Andover Contract.
Because plaintiff has failed to establish a triable issue of fact that his discharge occurred under circumstances giving rise to an inference of age discrimination, his ADEA and HRL claims must be dismissed.
B. Breach of Employment Agreement
Defendant contends that plaintiff's employment was pursuant to a written agreement providing that employment was "at will," and therefore his termination was not in breach of the employment agreement. Plaintiff, on the other hand, argues that the "employment contract [was] of indefinite duration with specific conditions for discharge and re-employment" that were breached by defendant. Pl. Mem. at 3. Plaintiff relies on language in the written agreement that plaintiff's employment is "'at will,' and subject to the Company's procedures and policies regarding its employees, including the Company's right to terminate employment." Barth Decl. at Ex. B.
According to plaintiff, defendant breached the employment agreement by failing to try to locate a position for him with "similar skill and salary requirements," as required by defendant's procedures and policies regarding termination of employment which is reflected in defendant's "Corporate Policy and Procedure," entitled "Termination of Employment" (see Laing Decl., Ex. A). In addition, plaintiff maintains that defendant assured plaintiff continued employment until March 16, 1991 (based on plaintiff's March 1990 annual performance review indicating that his next annual performance review would be held March 16, 1991 and that his employment goals could be met by then) or, in the alternative, until at least September 30, 1990, the original expiration of the Andover Contract. A review of the record demonstrates that plaintiff's claim cannot stand.
The evidence in the record is not sufficient to support a finding that defendant promised, explicitly or implicitly, to employ plaintiff until the end of the Andover Contract, originally contemplated as September 1990. Nor is there sufficient evidence to establish a promise to employ plaintiff until March 16, 1991. The March 1990 performance review does not support such a claim. The indication that plaintiff could meet his employment goals in the future was an assessment by Shields of plaintiff's ability to meet self-described "personal goals" during the upcoming review period. Given the absence of other evidence of a promise of continued employment, these remarks in plaintiff's annual review do not establish a promise to employ plaintiff during that period.
As for plaintiff's argument that his termination was wrongful because it contravened defendant's termination policy guide,
there is nothing in the guide which entitles plaintiff to continued employment. The guide does state that in the event of "Involuntary Termination -- Layoff," defendant's Office of Administration will investigate employment opportunities elsewhere in Vanguard. However, considered in the totality of the circumstances presented, this general policy on termination does not require defendant to locate a position for plaintiff of "similar skill and salary requirements" as an "express limitation" on defendant's right to terminate plaintiff. See Gmora v. State Farm Mutual Ins. Co., 709 F. Supp. 337 (E.D.N.Y. 1989) (applying New York law ).
For the reasons above, defendant's motion for summary judgment is granted, and the complaint is dismissed. The Clerk of the Court is directed to close the file in this case.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
April 20, 1994