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BABCOCK v. CAE-LINK CORP.

February 15, 1995

WILLIAM BABCOCK, Plaintiff, against CAE-LINK CORPORATION, LINK FLIGHT SIMULATION CORP., and CAE INDUSTRIES, LTD., Defendants.


The opinion of the court was delivered by: DENNY CHIN

 CHIN, D.J.1

 This is an employment discrimination case brought by plaintiff William Babcock under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA") and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. Defendant CAE-Link Corporation ("CAE-Link") moves for summary judgment dismissing the complaint or, in the alternative, for partial summary judgment dismissing plaintiff's claims for liquidated and punitive damages. *fn2" For the reasons stated below, the motion is denied to the extent it seeks dismissal of the complaint and the claim for liquidated damages. It is granted to the extent it seeks dismissal of plaintiff's claims for breach of contract and for punitive damages. Defendant also moves to strike two affidavits submitted in opposition to the motion for summary judgment. That motion is denied.

 Plaintiff moves for leave to amend the complaint and a stipulation concerning the pleadings and to compel defendant to respond to certain discovery requests. The motion is granted as to the proposed amendments of the complaint and stipulation and denied as to the request to compel discovery.

 FACTS

 Babcock was employed by CAE-Link, a manufacturer of training simulators for military applications, for nearly 32 years. During his employment, plaintiff held many different positions, and eventually was promoted to the position of integrated logistics support ("ILS") program manager in the ILS program management department in 1981. In June 1989, there were 13 ILS managers in the ILS management department, working on various programs. Plaintiff was assigned to a new program -- the LHX program. By that time, plaintiff had over 12 years of experience as a logistics coordinator/manager, making him one of the most experienced managers in the department.

 In the spring of 1989, CAE-Link underwent a major restructuring and company-wide reduction in force, which resulted in the lay-off of approximately 150 employees, including plaintiff. At the time of his discharge on June 7, 1989, plaintiff was nearly 58 years old. Two other ILS managers were discharged at the same time as plaintiff, both of whom were younger; the youngest of the three was later rehired into the same department. The remaining ILS managers either stayed in their positions or were moved to different departments. One of the remaining ILS managers, who was younger than plaintiff, was given responsibility for plaintiff's LHX program.

 Plaintiff filed a charge with the New York State Division of Human Rights (the "SDHR") on April 3, 1990. *fn3" In his charge he claimed both that he was discriminated against on the basis of his age and that CAE-Link's policy was to discriminate against all older workers. The SDHR dismissed plaintiff's complaint on December 5, 1990. He subsequently commenced this action in state court on February 4, 1991. In his complaint, plaintiff alleged that defendant discriminated against him on the basis of his age.

 In support of its motion for summary judgment, defendant claims that plaintiff's lay-off was due to the reduction-in-force. Defendant contends that plaintiff was chosen for dismissal because he was not qualified to work on a new program, had previously been unsuccessful as a logistics manager, and had poor performance ratings.

 Discussion

 The ADEA provides that it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The Human Rights Law affords similar protection. See N.Y. Exec. Law. § 296(1)(a) (McKinney 1993).

 1. Jurisdiction

 Defendant contends that this Court lacks jurisdiction to hear plaintiff's claims under the ADEA because plaintiff's SDHR charge purportedly did not contain a charge of intentional discrimination against plaintiff individually. Defendant relies on paragraph 8 of the SDHR complaint, in which plaintiff alleged that "the effect and pattern of the policy and practices of [defendants] . . . has been to unlawfully deny to myself and other employees our rightful wages . . . and has otherwise adversely affected the terms, conditions and privileges of employment, or status of employees, because of such employees' ages." Defendant argues that the SDHR complaint failed to allege any disparate treatment of plaintiff but rather merely alleged that the lay-off had a disparate impact on older workers.

 Of course, defendant is correct in its assertion that this Court has jurisdiction only over claims that are "reasonably related to the allegations in plaintiff's EEOC complaint." Gomes v. AVCO Corp., 964 F.2d 1330, 1334 (2d Cir. 1992) (quoting Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir. 1983)); see also 29 U.S.C. § 626(d). Defendant's reading of plaintiff's SDHR complaint, however, is incorrect.

 Plaintiff's claims clearly are reasonably related to the allegations contained in his SDHR complaint, for the SDHR complaint did assert a disparate treatment claim. Plaintiff alleged in his SDHR complaint that: 1) "as a result of the Respondent's actions, the Complainant herein has suffered loss of wages, [and other benefits] all due to Respondent's unlawful discrimination based on age" and 2) "Complainant herein is over age of 40 and charges the respondent with discriminating against him unlawfully because of his age in violation of the ADEA and the New York State Human Rights Law." (Babcock SDHR Complaint, PP 9, 10). Hence, plaintiff asserted both discriminate impact and discriminate treatment theories in his SDHR complaint, and this Court has jurisdiction over plaintiff's claims of discriminatory treatment. See Gomes v. AVCO Corp., 964 F.2d 1330, 1334-35 (2d Cir. 1992) (in reversing district court's dismissal of disparate impact claim, appeals court held that EEOC charge presented both disparate impact and disparate treatment theories). *fn4"

 2. The Motion to Strike Affidavits

 Defendant moves to strike the affidavit of Gordon J. Stred, a former vice-president with CAE-Link, which was submitted by plaintiff in his papers in opposition to the motion for summary judgment. The affidavit, dated July 24, 1990, was filed in another employment discrimination case against defendant, McGuigan v. CAE-Link Corp., 91 Civ. 250 (Broome County), and generally states that defendant wanted younger employees and took age into consideration in granting promotions and making other employment decisions. Defendant maintains that the affidavit should be stricken because: 1) Mr. Stred does not have personal knowledge of plaintiff's work or discharge: 2) the affidavit was submitted in a state court proceeding and is over three years old; and 3) the affidavit contains hearsay or other inadmissible evidence. Each of these arguments is rejected.

 First, while it is true that Mr. Stred did not have personal knowledge of plaintiff's work or discharge, as a vice-president of the defendant company he did have personal knowledge as to defendant's employment policies, which might have had an impact on its decision to discharge ...


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