Wanamaker Aff. at 16, P 45. Plaintiff Wanamaker contends that those actions evince retaliatory intent.
In any event, after that meeting, plaintiff was advised in writing that he was terminated "effective immediately," but that his salary would continue through June 30, 1987. Defendants' exh. J. Plaintiff was also instructed to remove his personal belongings from his office by March 10, 1987. Id. The continuation of plaintiff's salary through that date was in accordance with an earlier meeting on October 31, 1986, between plaintiff and defendants Metcalf and Ludt, at which plaintiff was advised of the board's decision to abolish the in-house counsel position and hence terminate him. Id.; see also Ludt Aff. at PP 15-16; and Metcalf Aff. at P 17. At that meeting, those defendants made plaintiff's six month notice effective December 31, 1986, so that his salary would continue through June 30, 1987. Id.; see also Defendants' exh. H.
Because it is undisputed that despite being terminated on March 5, 1987, plaintiff continued to receive his salary until June 30, 1987, Columbian asserts that plaintiff's retaliation claim is not viable because he did not lose any pay or other tangible benefits, and thus he was not disadvantaged by Columbian's decision to terminate him in March, 1987. What is more, as this court found in Wanamaker I, "plaintiff's salary and benefits were extended for an additional three months beyond June, 1987 at 70% of his previous rate of pay." 713 F. Supp. at 535. Making a somewhat novel argument, Columbian further contends that plaintiff cannot prevail on his retaliation claim because under the Code of Professional Responsibility, termination of the attorney-client relationship is mandated when, as did plaintiff Wanamaker, an attorney threatens to sue his client. Columbian reasons that plaintiff Wanamaker's threat of legal recourse provided it with a legitimate, non-discriminatory reason for terminating him in March, 1987.
Plaintiff responds that of course this March 5, 1987, dismissal was disadvantageous to him because he no longer had an office or support services to assist in his job search. Defendant Ludt concedes that when plaintiff was informed on October 31, 1986, of Columbian's decision to abolish his position and terminate him, he "requested and was provided with extensive outplacement services, at [Columbian's] expense." Ludt Aff. at 4, P 17. The record is silent, however, as to the extent and nature of the services provided prior to March, 1987. Plaintiff posits that those losses may well have contributed to his inability to obtain subsequent employment. To bolster his contention that his accelerated termination of March, 1987, was adverse, plaintiff explains, albeit not quite in these terms, that his reputation was damaged because he was terminated earlier than anticipated, and attorneys, as well as others, saw him unexpectedly moving out of his office, which was located on Main Street in Auburn, New York. See Wanamaker Aff. at P 49.
1. Prima Facie Case
Section 623(d) of the ADEA prohibits an employer from discriminating "against any of his employees or applicants for employment, . . ., because such individual, . . ., has opposed any practice made unlawful by this section, or because such individual, . . ., has made a charge . . . under this chapter." 29 U.S. § 623(d) (West 1985). "'The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice.'" Edwards v. Interboro Institute, 840 F. Supp. 222, 228 (E.D.N.Y. 1994) (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). "In order to make out a prima facie case of discriminatory retaliation, a plaintiff must show by a preponderance of the evidence i) participation in a protected activity known to the defendant; ii) an employment action disadvantaging the plaintiff; and iii) a causal connection between the protected activity and the adverse employment action.'" Tomka v. Seiler Corp., 66 F.3d 1295, 1995 U.S. App. LEXIS 27612, at *32 (2d Cir. 1995); and Murray v. New York Univ. College of Dentistry, 57 F.3d 243, , 1995 U.S. App. LEXIS 15052, at *24-*25 (2d Cir. June 16, 1995) (same). At this juncture, the court is only concerned with the second element.
As is readily apparent, Columbian and plaintiff strongly disagree as to what constitutes adverse action so as to satisfy that second element. To place the parties' respective arguments in context, the court will briefly review how courts have defined this adverse action component of a retaliation claim. "To establish that the employer's conduct toward the plaintiff constitutes an adverse action, the plaintiff must prove that the conduct 'affected the terms, privileges, duration, or conditions of the plaintiff's employment.'" Vergara v. Bentsen, 868 F. Supp. 581, 592 (S.D.N.Y. 1994) (quoting Rooney v. Witco Corp., 722 F. Supp. 1040, 1046 (S.D.N.Y. 1989)). True, "in most cases the alleged [adverse] conduct involves instances of retaliatory discharge[.]" Id. (and cases cited therein). In Penny v. Winthrop-University Hosp., 883 F. Supp. 839 (E.D.N.Y. 1995), the court broadly described "adverse action" though, as action "which adversely impacts on the employee, such as a discharge, demotion, or failure to promote." Id. at 845 (citations omitted). Furthermore, the Vergara listed the following additional examples of adverse actions, short of outright termination: providing unfair work references, placing false information in the complainant's personnel file, failing to promote the employee, subjecting an employee to unreasonable working conditions, or giving an employee unjustifiably negative performance evaluations. 868 F. Supp. at 592 (and cases cited therein).
Thus, as the foregoing demonstrates, while discharge is probably one of the most common forms of adverse action to a plaintiff employee, certainly it is not the only form. Lees v. Case-Hoyt Corp., 779 F. Supp. 717, 726 (W.D.N.Y. 1991).
a. Adverse Action
To determine whether plaintiff Wanamaker suffered adverse employment action in March, 1987, requires the court to carefully examine the exact circumstances under which his termination was accelerated then.
After doing so, the court is convinced that even though it is somewhat of a close call, plaintiff is unable to establish a prima facie case of retaliation because he cannot show that he was disadvantaged by the earlier termination date. The alleged retaliation here did not take the form of discharge because that had already occurred on October 31, 1986, when plaintiff was advised that his position was finally being abolished and thus he was being terminated. In attempting to show that he was disadvantaged by Columbian's actions on March 5, 1987, wisely, plaintiff does not focus on the fact of termination. Instead, plaintiff asserts that by accelerating his termination date, his reputation was damaged and he was left with no office and support services with which to conduct his job search.
While the court is sympathetic to the predicament in which plaintiff found himself in March, 1987, without more, the court cannot find that these facts, which are undisputed, resulted in adverse action to plaintiff for purposes of establishing a prima facie retaliation claim in violation of section 623(d) of the ADEA. First of all, as the case law demonstrates, neither loss of reputation nor loss of support services falls within the category of personnel actions which courts have deemed to be adverse within the meaning of that statute. In fact, in Connell v. Bank of Boston, 924 F.2d 1169 (1st Cir.), cert. denied, 501 U.S. 1218, 111 S. Ct. 2828, 115 L. Ed. 2d 997 (1991), a case remarkably similar to the present one, on May 30, 1986, plaintiff was informed that he would be terminated effective June 30, 1986. At the same time, however, the bank also told him that so long as his work was up-to-date, he could use his office until the end June to contact prospective employers. Id. at 1178. After plaintiff had retained counsel and before the end of the month, on June 13, 1986, plaintiff was ordered to vacate his office, and was told that he would have no further access to any bank office. The First Circuit found that although the accelerated discharge "could be found to be retaliatory, it was not an adverse employment action within the meaning or intent of 29 U.S.C. § 623(d)." Id. at 1180 (emphasis added). In reaching that conclusion, the Court noted that plaintiff received his severance pay and other benefits through the end of June. In addition, his pension had vested prior to his notification of discharge. Id. at 1179. Consequently, he did not suffer any loss of valuable benefits. Thus, according to the Connell Court, "the only detriment to plaintiff as a result of the Bank's sudden eviction of him from its premises was the loss of the use of his office for a period of two weeks to contact prospective employers[,]" which the court did not deem sufficiently adverse to establish a prima facie case of retaliation. Id. The Court therefore affirmed the district court's grant of summary judgment in favor of the defendant employer on that claim. Id. at 1180.
The court in Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D.Pa.), aff'd without pub'd opinion, 856 F.2d 184 (Cir. 1988), reached a similar result. There the plaintiff was told in early September, 1983, that she would be terminated for poor performance at the end of December, 1983. She then filed a charge with the Equal Employment Opportunity Commission ("EEOC") on October 12, 1983, alleging sexual discrimination. Less than a month later, on November 7, 1983, plaintiff's supervisors told her not to report to work anymore. Although plaintiff was unaware of it, her pay and benefits continued in full from November 7, 1983, through the end of December, 1983. The defendant employer argued, as does Columbian, that because her pay and benefits continued, plaintiff suffered no adverse employment action. Plaintiff responded "that she suffered adverse employment action in the form of the loss of the psychological benefit of having a job." Id. at 504.
Even though there was a factual issue as to the casual link element of plaintiff's prima facie retaliation claim, nonetheless, the court granted summary judgment in defendant's favor, explicitly finding that plaintiff's "early lay-off was not adverse employment action" because she "received full salary and benefits as if she worked until December 31, 1983, her scheduled termination date." Id. (citations omitted). As the court pointedly noted, "[Plaintiff] was paid as if she were working, without having to show up for work." Id. The court further reasoned that plaintiff's situation was analogous to those where courts have found "that temporary transfers or demotions which reduce the employee's duties and responsibilities but maintain her salary and benefits as before do not constitute adverse employment action." Id.
In the court's opinion, Connell and Mille21 effectively preclude plaintiff Wanamaker's claim that he sustained an adverse employment action because after his termination date was accelerated in March, 1987, he no longer had an office or support services to assist him in finding a new job. Further support for the court's position is found in the fact that plaintiff's loss of his office and support services is not a change which affected the terms and conditions of his employment at Columbian. Plaintiff fares no better with his claim that he was disadvantaged by his accelerated termination date because his reputation was purportedly damaged thereby. See Flaherty v. Gas Research Inst., 92 C 7315, 1993 U.S. Dist. LEXIS 14391, at *14 (N.D.Ill. Oct. 8, 1993) (court granted defendants' motion as to plaintiff's age and retaliation claims under the ADEA, reasoning, inter alia, that "humiliation, even public humiliation, is not sufficient to establish age discrimination. . . ."). Moreover, if plaintiff believed that his repuation was damaged on a defamation theory (a theory not suggested in his complaint), he could seek relief under the common law, and would not need to rely upon section 623(d) of the ADEA. See Nelson, supra, 51 F.3d at 388. In short, there is nothing in the present record showing that plaintiff was disadvantaged so as to allow him to invoke the ADEA's anti-retaliation provision. Accordingly, because plaintiff has failed to establish a critical element of his prima facie retaliation cause of action, defendants are entitled to summary judgment as to that cause of action as well.
Before leaving plaintiff's retaliation claim altogether, there is one aspect of that claim which the court has deliberately omitted to this point, and that is plaintiff's assertion that originally he was to be terminated effective March 5, 1987, which would have deprived him of his early retirement benefits because he needed to remain on as an employee until at least May 18, 1987, his fifty-fifth birthday, to be eligible for such benefits. See Wanamaker Aff. at P 49. While plaintiff's retaliation claim may have survived Columbian's summary judgment motion had he been able to show that he did not receive renumeration, the fact remains that he did. Indeed, as mentioned earlier, plaintiff received compensation even beyond that which was originally agreed to, when Columbian paid him seventy percent of his salary for an additional three months after June, 1987.
Moreover, the court is not swayed by plaintiff's speculative assertion that the March 5, 1987, board minutes were altered to make plaintiff's termination effective June 10, 1987, instead of immediately. See id. at P 48. Nothing in the record supports this bald assertion. Furthermore, the board minutes which are part of the record plainly show that prior to the motion as to plaintiff's termination, which included the conditions thereof, plaintiff left the meeting. Plaintiff's exh. 27 at 1048. Therefore, he had no personal knowledge of the circumstances surrounding the vote on the resolution to terminate him,
and plaintiff refers the court to nothing else which would even arguably tend to support his belief that the board minutes were altered. Thus, because plaintiff did receive his salary and benefits during the relevant time frame (and beyond), and that fact is undisputed, even if Columbian's earlier termination could be deemed retaliatory, in the end plaintiff is unable to show that he was disadvantaged and that is fatal to his ADEA retaliation claim.
Having determined that plaintiff cannot establish a prima facie case of retaliation, the court need not and will not delve into the more troublesome issue of whether, as Columbian strongly urges, it had a right to terminate plaintiff when he indicated (or so Columbian believed) that he intended to sue Columbian for age discrimination.
C. Breach of Contract
In his third and only remaining cause of action, plaintiff asserts a claim for breach of employment contract. There was no formal written employment contract between plaintiff and Columbian, however. And despite a litany of terms and conditions which plaintiff avers were orally agreed to between he and Columbian,
the only written memorialization of their agreement is a cursory memorandum dated March 7, 1974, from Legare Hole, Columbian's president at the time, which reads as follows:
This will confirm our verbal agreement, as set forth herein. As a condition of your employment, the Company agrees that in the event your employment is terminated, the Company will furnish you with written notice of said termination at least six months prior to the effective date of termination.