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September 11, 1996

DONALD B. KERBER, Plaintiff,

The opinion of the court was delivered by: LARIMER

 This discrimination case is brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.; and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. Negligent and/or intentional infliction of emotional distress claims are also asserted.

 Plaintiff Donald B. Kerber ("Kerber") was terminated from his employment with C.J. Winter Machine Works, Inc. ("CJW") when he was 56 years old. Kerber claims that he was wrongfully terminated because of his age. Defendants assert that Kerber was terminated due to unsatisfactory work performance.

 Presently before me is defendants' motion for summary judgment dismissing all of Kerber's claims. For the reasons set forth below, the motion is granted.


 Kerber was employed by CJW from 1971 until his termination on July 27, 1993 (22 years). He started as a draftsman/designer and at the time of his termination had been working as a "threadroll engineer" for several years.

 Defendants assert that Kerber was always a marginal employee. Kerber's job performance was evaluated annually. Performance evaluations from 1980, 1984, 1985, and 1986 indicated that Kerber's performance was generally average. Defendants' Motion for Summary Judgment ("Defs' Motion"), Exs. F-I. Kerber's strengths were identified as "dependability to perform repeat engineering exercises and functions" (1985). Weaknesses were identified as "ability to organize work schedule and meet goals", "lack of ambition" (1980); "need to develop more ambitious work habits and attitude" (1984); and "low initiative, and project planning ability" (1985). Id.

 Starting in 1987, Kerber's supervisor was defendant Britt Carpenter ("Carpenter"). Carpenter's first evaluation of Kerber (1987) indicated fair to average performance generally. Defs' Motion, Ex. J. Carpenter noted that Kerber's major strengths were a "good technical understanding of his job" ... [and that he] is also a "very dependable & persistent employee." Weakness were that Kerber "lacks initiative and insight to 1) ensure timliness [sic] of orders and documentation, 2) anticipate and communicate problems, and 3) follow up with solutions." Id.

 Carpenter's 1988, 1989, 1990 and 1992 evaluations indicated an "acceptable" rating of overall performance. Defs' Motion, Ex. K. These evaluations contain some positive statements -- i.e., that Kerber's timeliness had been converted from a weakness to a strength (1988) and that his knowledge of threadrolls continued to be a valuable asset to the company (1989, 1990). But they also identify ongoing weaknesses -- i.e., still needs to improve ability to anticipate, evaluate and resolve problems (1988). Id.

 Carpenter asserts that he was never happy with Kerber's work but that, before 1992, he felt the best way to promote improved performance by Kerber was to offer encouragement. Affidavit of Britt Carpenter ("Carpenter Aff't") at P 7. In 1992 Carpenter allegedly grew more frustrated with Kerber's poor performance, especially compared to other engineers who were doing considerably more work than Kerber. Id. at P 8. Other employees allegedly began to complain about Kerber's lack of responsiveness, failure to perform work on a timely basis, and errors. Id. at P 6.

 Carpenter asserts that at various times throughout 1992 he assigned a variety of projects to Kerber. *fn1" With one possible exception, it appears that Kerber failed to work on any of them during the entire year. *fn2" Kerber Deposition at pp. 97 - 98.

 On January 22, 1993, Carpenter discussed the outstanding projects with Kerber. Carpenter again discussed the projects with Kerber on two occasions in February 1993 and was told by Kerber that he hadn't had a chance to work on them. Kerber Deposition at 99, 103. Carpenter alleges that he emphasized to Kerber the importance of getting the projects finished. Carpenter Aff't at P 16. Kerber asserts that Carpenter merely "asked me how I was doing on them." Kerber Deposition at pp. 98, 99, 100, 103.

 On February 9, 1993, Carpenter issued a written Employee Warning Notice to Kerber. The Warning was based upon "unsatisfactory work quality." Defs' Motion, Ex. L. It stated that Kerber had failed to perform tasks assigned 8 months earlier, despite several discussions about the importance of completing them. The Warning Notice further stated that Kerber's work frequently had mistakes, and that it took him considerably longer than his peers to accomplish the same tasks. Finally, the Notice reiterated a prior verbal warning that "a lack of immediate corrective action by [Kerber] to solve his productivity problems will result in termination." Id.

 Kerber indicated disagreement with the assessment. He wrote on the Warning Notice form that "I did not think I was wasting any time in doing my job, also thread roll orders are checked for any errors." Id.

 On days when Kerber was absent, another engineer would cover for him. According to Carpenter, this other engineer (Paul Allart) did Kerber's daily job in 2 to 3 hours, leaving Allart the rest of the day to do his own work. Carpenter Aff't at P 23. Kerber asserts that Allart did only the easiest parts of his job -- leaving the more complex parts for him. -- and that Allart's work was full of errors. Kerber Aff't at PP 22, 23.

 Because Kerber's timeliness was one of Carpenter's concerns, Carpenter sought to determine more specifically how much time Kerber was spending on each task. Carpenter asked Kerber to provide this information but he allegedly found Kerber's report so messy and confusing that it was impossible to decipher. Carpenter Aff't at P 22. Accordingly, on two occasions in March 1993, Carpenter went to Kerber's work station and, with a stop watch, timed how long it took for Kerber to perform certain tasks. Id. at P 26. Carpenter determined that Kerber was inflating the amount of time he estimated to complete the tasks. Id.

 During the period between February 1993 and July 1993, Kerber was assigned and completed a few additional projects. He also completed some of the projects assigned in 1992. Defs' Motion, Ex. O; Kerber Deposition at pp. 79 - 103.

 Kerber submitted a written response to the evaluation, disputing the criticisms and noting, inter alia, that he had worked at CJW without incident for 22 years, and for Carpenter specifically for 5 years, and that only recently had Carpenter become concerned with these performance issues. Kerber further asserted that prior to the performance evaluation he had begun organizing a filing system for manuals and data sheets. Defs' Motion, Ex. P.

 Carpenter prepared written comments to Kerber's response. He defended his relatively recent ...

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