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April 20, 1995

IRECO, INC., Defendant.

The opinion of the court was delivered by: DAVID N. HURD

 Presently before the court are plaintiff's motion for partial summary judgment and defendant's motion for attorney fees and costs. Opposition to both motions were filed by the parties. Oral argument was heard on March 2, 1995.


 Plaintiff David J. Dittmann was an employee of defendant Ireco, Inc. and its predecessor company, Hercules, Inc., for twenty-eight years, from June 1962 through August 28, 1990. During the last 27 years of his employment for defendant, plaintiff worked at the Port Ewen, New York, manufacturing facility. Plaintiff held various supervisory positions, the latest being Production Manager starting in 1989. Mr. David Nowlen ("Nowlen"), Plant Manager at the Port Ewen facility, called plaintiff into his office on the morning of August 28, 1990, and informed plaintiff that his Production Manager position was being eliminated as part of a corporate reorganization and reduction in force. Nowlen gave plaintiff the option of termination or transfer to a position as an environmental manager at a facility in a small town in Missouri at a reduction in pay of about 37%, as well as a reduction in job responsibilities. Nowlen then demanded plaintiff's keys, and security personnel escorted plaintiff off the plant premises. Several days later plaintiff received a letter reiterating the alternative of termination or transfer. Plaintiff chose termination.

 Plaintiff was fifty years of age at the time of his termination, and he received consistently excellent performance evaluations and merit pay increases. Plaintiff filed the current action on May 15, 1992, alleging that the defendant discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621-634.

 Plaintiff alleges that his production manager position was subsumed into a new position, Manager of Manufacturing, and that he was fully qualified to perform the job responsibilities of the new position. Defendant never told plaintiff that the Manager of Manufacturing position was available at the time he was terminated, and never offered plaintiff that or any other open position at the Port Ewen plant for which he was qualified. However, defendant contends that the reorganization and new position were discussed with plaintiff in January, 1990, and plaintiff was offered the new position, but turned it down. The new position of Manager of Manufacturing eventually was filled by Ronald Johnson, then thirty-eight years of age.

 Defendant asserts that plaintiff never applied for employment with Ireco after September 14, 1990, his last "official" day of work. On August 29, 1990, one day after his position with Ireco was eliminated, plaintiff applied for a position with Kingston Hospital and was eventually hired for that position in November 1990. Further, plaintiff was retained on the Ireco payroll until September 14, 1990, and received $ 115,405.60 in cash as a consequence of his resignation from Ireco. More than half of the cash plaintiff received was a lump sum payment from his retirement plan.

 Also on the morning of August 28, 1990, another employee, John Rose ("Rose"), was called into Nowlen's office, advised of his termination due to the reorganization, then escorted off the plant premises. Rose was fifty-six years of age at that time. Five other supervisory employees, all under age forty, were terminated between August 28, and September 8, 1990, for unsatisfactory performance. Rose was successful in an age discrimination suit brought against Ireco. Final judgment was entered in that case, 92-CV-626, on March 6, 1995. The Honorable Howard G. Munson, Senior Judge, denied defendant Ireco's motions for post-trial relief pursuant to Federal Rules of Civil Procedure 50 and 59. Additionally, the court granted plaintiff's motions for front pay, post-judgment interest, and attorney's fees and costs. (See Wallender's Aff. Ex. B.)



 Plaintiff moves this court to find that all elements of his prima facie case have been established and that defendant is precluded by the decision in Rose v. Ireco from propounding a nondiscriminatory reason for his termination. The plaintiff therefore moves the court to grant partial summary judgment on the issue of liability.

 A. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).

 Moreover, material facts set forth in the movant's statement required by the local rules are deemed admitted unless controverted in the nonmovant's statement in opposition. L.R. 7.1(f). Thus, no genuine issue exists as to facts set forth in a movant's 7.1(f) Statement if the nonmovant fails to put such facts into controversy by a response in opposition to the summary judgment motion. See id.

 B. ADEA Claim

 The plaintiff may establish a prima facie case of age discrimination by indirect evidence showing: "(1) that he was within the protected age group; (2) that he was qualified for the job; (3) that he was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination;" Stetson v. NYNEX Serv. Co., 995 F.2d 355, 359 (2d Cir. 1993); Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 43 (2d Cir. 1988); Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983). Constructive discharge, where the employer "'deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation,'" may establish the third element of the prima facie case. Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (quoting Pena, 702 F.2d at 325) (additional citations omitted). Establishment of a prima facie case by indirect evidence raises an inference of discrimination, and "in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, ...

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