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December 16, 1997


The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff, Robert Strohmeyer ("plaintiff"), a fifty-six-year-old male, claims that defendant, International Brotherhood of Painters & Allied Trades ("defendant" or "International Brotherhood"), discriminated against him because of his age. Pending before the Court is defendant's motion for summary judgment.


 Plaintiff began working for the defendant on July 1, 1990. According to plaintiff, he performed his job in a satisfactory manner at all times. Defendant terminated plaintiff on December 31, 1994, the day before his fifty-seventh birthday. Plaintiff claims that defendant discharged him because of his age and then replaced him with Sean McGarvey, who was considerably younger and less experienced. Specifically, Sean McGarvey was thirty-two years old and had only six months' experience, whereas plaintiff was fifty-six years old and had almost thirty years' experience.

 Plaintiff also claims that defendant terminated him in order to deprive him of his pension. According to plaintiff, defendant knew that he needed only six additional months of employment for his pension to vest with the International Brotherhood. Nevertheless, defendant discharged plaintiff and then denied his request to take an unpaid leave of absence for those six months.

 Defendant moves for summary judgment on the grounds that: (1) plaintiff is unable to establish a prima facie case of age discrimination; and (2) even if he were, plaintiff is unable to rebut defendant's legitimate, nondiscriminatory reasons for his termination and establish that age was a motivating factor.


 A. Standards for Summary Judgment

 Summary judgment will be granted if the record demonstrates 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). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Altman v. New York City Health & Hosps. Corp., 100 F.3d 1054, 1060-61 (2d Cir. 1996).

 The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Henry v. Daytop Village, Inc., 42 F.3d 89, 94 (2d Cir. 1994), and all ambiguities and inferences that may be reasonably drawn from the facts must be viewed in the light most favorable to the non-moving party. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). To defeat summary judgment, however, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 The general principles underlying a motion for summary judgment apply no less here simply because this is an employment discrimination action. Although courts exercise caution in granting summary judgment where an employer's intent is at issue, Gallo, 22 F.3d at 1224, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp, 43 F.3d 29, 40 (2d Cir. 1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination;" he must offer "concrete particulars" to substantiate the claim. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); Duprey v. Prudential Ins. Co., 910 F. Supp. 879, 883 (N.D.N.Y. 1996).

 The three-part analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), governs discrimination claims brought under the ADEA, the HRL, and ERISA. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988). This framework is not intended to be "a rigid ritual, but simply an orderly way to evaluate proof when discrimination is claimed." Dister, 859 F.2d at 1112.

 Plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 252-53. In a wrongful termination case, a prima facie case is established if plaintiff demonstrates that: (1) he was within the protected age group-- i.e., between forty and seventy; (2) he was qualified for the position; (3) he was terminated; and (4) the termination occurred under circumstances giving rise to an inference of age discrimination. Viola v. Philips Med. Sys., 42 F.3d 712, 716 (2d Cir. 1994); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). The showing that plaintiff must make as to the elements of a prima facie case ...

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