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June 10, 1996


The opinion of the court was delivered by: PARKER


 Anderson Parker brings this diversity action under the New York Human Rights Law (Executive Law § 290 et seq.) against his former employer, Chrysler Corporation ("Chrysler), for discrimination. Presently before the Court is Chrysler's motion, pursuant to Fed.R.Civ.P. 56 for summary judgment.


 Parker, a black male, worked for Chrysler at its facility in Tappan, New York from 1972 through 1991. The crux of Parker's complaint is that Chrysler forced him to retire on account of his race. Critical to this summary judgment motion, therefore, are the circumstances surrounding Parker's resignation.

 On April, 1991, Parker received a brochure for Chrysler's newly implemented Special Early Retirement Voluntary Termination Incentive Program ("VTIP"). The package was accompanied by a cover letter signed by Chrysler's president, Lee Iacocca, which explained that, as a result of "slim profits," Chrysler needed to reduce its workforce by 3,000. The letter also explained that choosing the program was completely voluntary. The VTIP package included $ 62,000, a Chrysler vehicle, six months of continued life and health insurance coverage, and savings plan benefits. The brochure also offered information sessions and outplacement counseling in connection with the VTIP.

 According to Parker, as soon as he received the VTIP brochure, his supervisors, Skip Dahlman and Jim Garden, repeatedly asked him if he had decided whether he would accept the offer. Garden told Parker that if he did not accept the VTIP, he could be placed in a 30-60-90 day probation program with the possibility of termination if his job performance was considered unsatisfactory. During this time, three other supervisors relinquished their supervisory positions and resumed their former positions on the plant floor. When Parker asked what would happen if he resigned as a supervisor and returned to the floor, Dahlman responded that he would be one of the first to be laid off, although in reality his union contract included a no lay off clause. Dahlman also told Parker that as long as he was the warehouse manager, Parker would never work in the warehouse again. Apparently, Dahlman then threatened Parker with tasks that he was overqualified to do.

 During this time period, Parker spoke with a number of individuals about the VTIP. He used the outplacement services to seek a new job. Moreover, Parker spoke with management about the plan. He spoke with Bill Bloomberg, a manager from Detroit, Bob Jasper, the Tappan plant manager, and Dahlman. He also spoke with his brother (another Chrysler employee from the Tappan facility) and his fiancee. On April 29, 21 days after receiving the VTIP brochure, Parker signed it. On April 30, he resigned. Out of eight supervisors at the Tappan facility in 1991, Parker was the only black supervisor, although during recent years, the facility had numerous black supervisors. One other supervisor, Joe Debartola signed the VTIP. On April 29, 1994, Parker filed a complaint in Rockland County Supreme Court seeking damages against Chrysler for discrimination based on race in violation of New York Executive Law § 296. Chrysler removed the action to this Court pursuant to 28 U.S.C. § 1446. This motion followed.



 At the outset, we address defendant's contention that because Parker left Chrysler with a VTIP, the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 governs this action. Chrysler argues that § 514(a) of ERISA, which provides in part that ERISA "shall supersede any and all state laws insofar as they may relate to an employee benefit plan" governed by ERISA, 29 U.S.C. 1144(a), applies to Parkers's signing of the VTIP. Not all state law claims brought in an action involving an employee benefit "relate to" that plan within the meaning of 514(a); rather such claims generally "relate to" a benefit plan when they arise out of some action taken in the execution or administration of the plan. See Owens v. Metropolitan Life Ins., 865 F. Supp. 100, 102-03 (N.D.N.Y. 1994); see also McNamee v. Bethlehem Steel Corp., 692 F. Supp. 1477, 1478 (plaintiff's claims were not covered by ERISA because he did not seek benefits under the plan, but rather damages for defendant's failure to permit vesting of the plan as promised). Chrysler relies primarily on Barbagallo v. General Motors Corporation, 818 F. Supp. 572 (S.D.N.Y. 1993). In that case, plaintiff attacked the structure of a plan as discriminatory because of age. Here, however, Parker does not challenge the plan's structure, nor does he dispute the execution or administration of the plan but rather challenges the events which culminated in his decision to accept the plan. Accordingly, we reject defendant's argument and we analyze this matter as we analyze other discrimination claims.

 B. Standard For Summary Judgment

 Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Gallo v. Prudential Residential Servs., Ltd, 22 F.3d 1219, 1223 (2d Cir. 1994). The nonmoving party must meet a burden of coming forward with "specific facts, showing that there is a genuine issue of fact for trial," Fed.R.Civ.P. 56(e) by a showing sufficient to establish the existence of [every] element essential to the party's case, and on, which the party will bear the burden of proof at trial.

 In deciding whether a genuine issue of material fact exists, "the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). The Court is to inquire whether there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), however, and to grant summary judgment where the nonmovant's evidence is merely colorable conclusory, speculative or not significantly probative. Knight v. United States Fire Ins., 804 F.2d 9, 12-15 (1986), cert denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 C. Plaintiff's Prima Facie Case

 The standards relating to burden of proof and the order of proof in employment discrimination cases brought under the Human Rights Law are the same as those established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 for cases brought pursuant to Title VII of the Civil Rights Act of 1964. See Miller Brewing Co. v. State Division of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985).

 The three step process laid out in those cases requires that, first, the plaintiff establish a prima facie case of the discrimination. If the plaintiff sustains this burden, the defendant must offer rebuttal evidence articulating a legitimate independent nondiscriminatory reason for its actions. Once defendant does so, in order to prevail, plaintiff must prove, by a preponderance of the evidence, that the defendant's stated reasons are only a pretext for discrimination. Burdine, 450 U.S. at 252-53. The ultimate burden of persuading the finder of fact that an employer unlawfully discriminated against the plaintiff, remains at all times with plaintiff. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2748, 125 L. Ed. 2d 407 (1993).

 To satisfy the first step in this three step process and make out a prima facie case, plaintiff must establish that he is in a protected class, that he was qualified for the position in question, that he was discharged, and that the discharge occurred under circumstances giving rise to an inference of racial discrimination. See Burdine at 253-54, n. 6. First, the parties do not dispute that Parker is a member of a protected group. Second, with respect to Parker's qualifications, however, the facts are in dispute. Although Parker's proof as to this factor is thin, we find that he has met his burden. The record before us indicates that in 1984, after 8 years at Chrysler, Parker was promoted to his supervisor position and that in 1985, he passed his one year probationary period.

 As for the third step, in evaluating employment discrimination claims, we apply the concept of constructive discharge. Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987) (citations omitted). *fn1" When a constructive discharge is found, an employee's resignation is treated--for the purposes of establishing a prima facie case of employment discrimination--as if the employer had actually discharged the employee. Lopez, 831 F.2d at 1188 (citations omitted).

 "A constructive discharge occurs when the employer, rather than acting directly, makes working conditions so intolerable that the employee is forced into involuntary resignation. Lopez, 831 F.2d at 1188. To find that an employee's resignation amounted to a constructive discharge, "the trier of fact must be satisfied that . . . the working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d at 1188.

 Chrysler argues that Parker's termination was not a constructive discharge but the product of his own choice since he voluntarily signed the VTIP. Chrysler argues that Parker's current belief that he was forced into retirement or resignation is insufficient as a matter of law to establish a constructive discharge. Parker signed the following statement:


I hereby accept this offer of Voluntary Incentive Pension. The effective date of separation will be April 30, 1991. I acknowledge that I have had reasonable time to consider this offer, to discuss it with my attorney and/or financial advisor, and that my acceptance of this offer is completely voluntary on my part and was in no way forced upon me by Chrysler. I further understand that this election is in lieu of any other choice of retirement, including Employee Option or Normal retirement, to which I might otherwise be eligible.

 At the oral argument of this motion, Parker's counsel conceded that he would not be entitled to prevail on his constructive discharge claim unless he demonstrated that his execution of the VTIP was the result of duress or coercion. Parker's deposition was taken on October 20, 1994, a considerable amount of time after his resignation. There, Parker testified that he knew that the plan was voluntary. He also testified that he had the information concerning the VTIP for three weeks before he signed it. See Henn v. National Geographic Society, 819 F.2d 824, 830 (7th Cir. 1987), cert. denied, 484 U.S. 964, 98 L. Ed. 2d 394, 108 S. Ct. 454 (1987). During that time, Chrysler also told him that he could consult with an attorney and that he could speak with other Chrysler employees about the package. Parker did not speak with an attorney, but he testified that he did speak with family members and other Chrysler employees before he signed the VTIP. See Skluth v. United Merchants & Manufacturers, 163 A.D.2d 104, 559 N.Y.S.2d 280 (App. Div. 1st Dept. 1990) ("the absence of counsel is far less critical than the opportunity to consult counsel") (citing Cirillo v. Arco Chemical, 862 F.2d 448 (1988); Lancaster v. Buerkle Buick Honda, 809 F.2d 539 (8th Cir. 1987), cert. denied, 482 U.S. 928, 96 L. Ed. 2d 699, 107 S. Ct. 3212 (1987).

 Parker, however, argues that the opportunities to review the VTIP and discuss it with others were presented against a backdrop of intolerable working conditions, and that, in effect, he signed it under duress or coercion. Under New York law, a contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding his exercise of free will. First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 632 (2d Cir. 1992) (quoting Austin Instrument Inc. v. Loral Corp. 29 N.Y.2d 124, 324 N.Y.S.2d 22, 25, 272 N.E.2d 533 (1971)).

 The Restatement (Second) of Contracts recognizes three types of duress: duress by physical compulsion, undue influence and duress by threat. Restatement (Second) of Contracts § 176 (1981). In this case, Parker does not allege physical threats or undue influence. Moreover, he fails to make a showing that he was threatened overtly. See Joseph v. Chase Manhattan, 751 F. Supp. 31 (E.D.N.Y.). We assume that during this period, Dahlman and Garden aggressively encouraged Parker to sign the VTIP. But the fact that they told him such things as they could not guarantee his future at Chrysler does not establish a threat sufficient to constitute duress. The fact that the choice offered is between inherently unpleasant alternatives -- resignation or job insecurity -- does not by itself establish that a resignation was induced by duress or coercion. See Stone v. University of Maryland Medical System, 855 F.2d 167, 173 (4th Cir. 1988). See also Henn v. National Geographic Society, 819 F.2d at 830 ("an employer's communication of the risks of the job does not spoil the employee's decision to avoid those risks by quitting"); Libront v. Columbus McKinnon Corp., 832 F. Supp. 597, 614-15 (W.D.N.Y. 1993). Moreover, according to Parker himself, at the time he signed the VTIP, he knew that it was voluntary. See Frederick Martin v. Bethlehem Steel, 1988 U.S. Dist. LEXIS 11635, 1988 WL 110459 (D.Md 1988) ("Plaintiff had the choice of either retiring [early] and receiving an additional five percent to his pension plan or maintaining his employment with current salary or benefits. Because he had this choice, plaintiff's retirement was voluntary"). Notwithstanding Parker's contentions that his decision was a difficult one, these facts are simply not sufficient to raise a material issue as to the voluntariness of his acceptance of the VTIP. These facts -- construed generously in Parker's favor -- simply do not amount to duress or coercion, especially since he represented in writing and later swore under oath that his resignation was completely voluntary.

 Since the evidence is insufficient to satisfy the third step, we do not reach the issue of an inference of discrimination. *fn2" Accordingly, this Court finds that the evidence presented is insufficient to establish a prima facie case of discrimination as to both of Parker's claims.


 For the reasons stated, Chrysler's motion for summary judgment is granted.

 The clerk shall enter judgment.




 Dated: White Plains, New York

 June 10, 1996

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