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February 24, 1997


The opinion of the court was delivered by: LARIMER

 Plaintiff, Richard J. Renaldi, commenced this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., alleging that his former employer, defendant Manufacturers and Traders Trust Company ("M&T"), terminated his employment and otherwise discriminated against Renaldi on account of his age. Plaintiff seeks declaratory, injunctive, and equitable relief, liquidated and compensatory damages, and costs and attorney's fees. Defendant has moved for summary judgment.


 The complaint alleges that Renaldi, who was born in 1937, began working for Central Trust Company in 1963 as a bank teller, and eventually rose to the position of branch manager. On July 1, 1992, M&T acquired Central Trust.

 Initially following M&T's acquisition of Central Trust, Renaldi continued to work as a branch manager at M&T's Lyell branch in Rochester. In mid-January 1993, however, Renaldi was moved from that position to a business development officer position, which required him to generate various types of business and meet goals set by his superiors. Plaintiff alleges that his branch manager position was filled by Robert Rasp, who was then thirty-eight years old.

 Although Renaldi's salary and benefits as business development officer remained the same as they had been when he was branch manager, he alleges that his transfer to this position constituted an adverse job action because the business development officer position was less prestigious and carried less authority. He also alleges that M&T set his goals unreasonably high in order to create a seemingly objective reason to terminate him later. Plaintiff further alleges that his working conditions were made deliberately difficult and unpleasant; he was not given his own office, desk, chair, telephone or computer, and he was "shunned" by his manager.

 On March 3, 1993, Alfred J. Pawlikowski, M&T's Vice President and Manager of Employee Relations, informed Renaldi that his employment was being terminated. The decision to terminate plaintiff had been made by Carl W. Jordan, Administrative Vice President and Regional Manager for M&T's Retail Banking Division. On March 18, 1993, Norbert H. Remus, M&T's Vice President and Manger of Employee Benefits, wrote a letter to Renaldi confirming the details of his termination, such as severance pay, availability of benefits, etc. Pawlikowski Affidavit Ex. A.

 Plaintiff was not replaced in his business development officer position. Plaintiff alleges that the reason for this is that the position was a sham in the first place, created only to lay the groundwork for his termination.

 On October 15, 1993, Renaldi filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued plaintiff a right-to-sue letter on October 17, 1994.

 Plaintiff commenced the instant action on December 27, 1994. The complaint asserts three causes of action. Count I alleges that plaintiff's alleged demotion and termination subjected him to disparate treatment on account of his age, in violation of the ADEA. Count II alleges that M&T maintained a discriminatory policy of terminating older employees, and that this policy had a disparate impact on Renaldi, also in violation of the ADEA. Count III asserts that M&T terminated and otherwise discriminated against plaintiff on account of his age, in violation of the New York State Human Rights Law ("HRL"), Exec. L. § 296.


 I. Timeliness of Claims Relating to Plaintiff's Alleged Demotion

 Defendant contends that plaintiff's claims regarding his alleged demotion from branch manager to business development officer should be dismissed as time-barred because plaintiff's EEOC complaint was not filed until more than 300 days after he was notified of his reassignment from the branch manager position on November 2, 1992. Under 29 U.S.C. § 626(d)(2), an ADEA action may not be commenced until 60 days after the filing of a charge with the EEOC, and the EEOC charge in turn must have been filed "within 300 days after the alleged unlawful practice occurred ..." Failure to file a timely charge of age discrimination bars a subsequent action under the ADEA. Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 59 (2d Cir. 1986) ("No civil action based on a claim of age discrimination may be brought in a federal court unless the plaintiff has timely filed his claim with the EEOC"). In the case at bar, Renaldi filed his administrative complaint on October 15, 1993, which, if defendant's argument is correct, would bar any claims arising after December 19, 1992.

 Defendant's contention in this regard is flawed, for several reasons. First, defendant did not raise untimeliness as an affirmative defense in its answer. By failing to do so, defendant has waived the defense. Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 967 F.2d 742, 751 (2d Cir. 1992); ...

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