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September 7, 1994



The opinion of the court was delivered by: HOWARD G. MUNSON


 This action arises under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and the New York common law. In his complaint, plaintiff William D. Jackson alleges that he was dismissed as an employee of defendant Lyons Falls Pulp & Paper, Inc. as a result of age discrimination, that he was retaliated against for filing a civil rights claim, and that his discharge breached an implied employment contract. Currently before the court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons stated below, defendant's motion is granted.


 Plaintiff, a 54 year old male, filed a complaint on March 6, 1991, alleging that defendant Lyons Falls Pulp & Paper, Inc., discharged and retaliated against him in violation of the ADEA, and that defendant breached of an implied employment contract. All allegations arise out of a common set of facts.

 Plaintiff began his employment at the Lyons Falls, New York papermill in October 1957, when the mill was owned by Gould Paper Company. Lacking any specialized education, plaintiff worked various jobs for an hourly wage at the mill before he was promoted to a salaried position as Stock Preparation Supervisor in 1971, when Georgia Pacific Corporation owned the mill. As Stock Preparation Supervisor, plaintiff was responsible for maintaining an inventory of raw materials and for overseeing the production of stock, from which paper is made. After defendant acquired Georgia Pacific's interest in the papermill in October, 1985, it retained the managerial and supervisory employees, including plaintiff. Plaintiff retained the title of Stock Preparation Supervisor until he was terminated on October 1, 1990.

 When the mill converted from acid to alkaline production, new paper recipes, new equipment, and different control measures were utilized. The initial conversion resulted in significant losses for defendant. Because most of the employees lacked any experience in alkaline paper production, several managers and supervisors were replaced with people who did have such experience. Kenneth Noonan was hired by defendant as Production Manager in May 1990. Noonan was eventually given the title of General Manager.

 The conversion to alkaline production required significant adjustments for plaintiff. As Stock Preparation Supervisor, plaintiff played a pivotal role in the mill's conversion. Plaintiff was assigned significant new duties by Noonan. One such duty involved providing daily reports detailing, among other things, the rate of consumption of raw materials. Another duty required plaintiff to instruct the twenty employees under his supervision to measure and chart certain qualities of the stock in an effort to streamline production, thus controlling costs.

 According to defendant, plaintiff was unable to fulfill his new duties. On October 1, 1990, plaintiff was informed by Noonan and Ernest Colella, the Personnel Manager, that he was discharged because of technological changes. Noonan and Colella presented plaintiff with a Separation Agreement releasing the company from any liabilities relating to his discharge, and offered plaintiff severance pay and benefits in return for his signature on the Agreement. Plaintiff refused the offer and therefore did not receive the severance pay and benefits. Fritz Stahl, a younger employee with less experience, replaced plaintiff as Stock Preparation Supervisor.


 A. Standards for Summary Judgment

 Under Federal Rule of Civil Procedure 56(c) summary judgment shall enter if, when viewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., U.S. , , 112 S. Ct. 2072, 2077, 119 L. Ed. 2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). Where the moving party does not bear the ultimate burden of proof on an issue, that party satisfies its summary judgment burden by pointing to the absence of evidence to support an essential element of the non-moving party's claim. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). Where the movant does shoulder the burden of proof, it must establish that there is no genuine issue of material fact to be decided regarding any element of that party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In either case, if the movant satisfies its initial summary judgment burden, then the burden shifts to the non-movant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). To survive the motion for summary judgment the nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and furthermore must show more than "some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The nonmovant must demonstrate that there are issues of fact that must be decided by a factfinder, because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

 With these rules in mind, the court turns to the specific arguments raised on defendant's motion.

 Defendant's motion for summary judgment with regard to plaintiff's claims under the ADEA is twofold. First, defendant challenges the court's jurisdiction to hear the matter. Second, defendant argues that even if the court has jurisdiction, summary judgment is appropriate because plaintiff fails on the merits of his claims.

 1. Jurisdiction

 The court first turns to defendant's argument that the court lacks subject matter jurisdiction to hear plaintiff's ADEA claims. In relevant part, 29 U.S.C. § 633(b) states:

In the case of an alleged unlawful practice occurring in a state which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under § 626 of this title before the expiration of sixty days after proceedings have been commenced under the state law, unless such proceedings have been earlier terminated.

 There are two requirements that an ADEA claimant must meet before filing an action in federal court. First, claimant must timely file a charge with the Equal Employment Opportunity Commission ("EEOC"). Wanamaker v. Columbian Rope Co., 713 F. Supp. 533, 540 (N.D.N.Y. 1989). Second, claimant must have commenced a state proceeding with the relevant state agency pursuant to 29 U.S.C. § 633(b). Id.

 In the instant case, it is undisputed that plaintiff filed a timely EEOC charge, satisfying the first prerequisite. Exhibit ("Exh.") C attached to Plaintiff's Memorandum of Law, Document ("Doc.") 21. The parties do, however, dispute whether plaintiff commenced a proceeding with the New York State Division of Human Rights ("SDHR").

 It is well established that under § 633(b) of the ADEA resort to administrative remedies is mandatory. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979); Reichman v. Bonsignore, 818 F.2d 278, 282 (2d Cir. 1987). Section 633(b) does not stipulate an exhaustion requirement but rather requires only that state proceedings be commenced, thus giving the state agency "a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievant thereafter have no need or desire for independent federal relief." Solimino v. Astoria Fed. Savings & Loan Ass'n, 901 F.2d 1148, 1151 (2d Cir. ...

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