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CLARK v. BUFFALO WIRE WORKS

March 18, 1998

TERRANCE M. CLARK, ANTHONY S. MISZUK, NICHOLAS NESTERUK, Plaintiffs,
v.
BUFFALO WIRE WORKS, CO., INC., Defendant.


LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.


The opinion of the court was delivered by: FOSCHIO

REPORT and RECOMMENDATION

JURISDICTION

 This case was referred to the undersigned by Hon. John T. Curtin on July 8, 1996, for report and recommendation of all dispositive motions. It is presently before the court on Defendant's motion for summary judgment (Doc. # 28), filed April 8, 1997.

 BACKGROUND

 On June 14, 1995, Plaintiffs Terrance M. Clark, Anthony S. Miszuk and Nicholas Nesteruk filed this action alleging Defendant Buffalo Wire Works Co., Inc., unlawfully terminated Plaintiffs' employment with Defendant in violation of the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, 29 U.S.C. §§ 600 et seq., ("the ADEA"), and New York Human Rights Law, N.Y. Exec. Law § 296 et seq. Specifically, Plaintiffs assert six claims, including three violations of the ADEA, and N. Y. Exec. Law §§ 296 et seq., negligent infliction of emotional distress, and intentional infliction of emotional distress.

 Defendant's answer, filed August 7, 1995, asserts five affirmative defenses, including that the instant claims are barred based on (1) release, (2) equitable estoppel, (3) applicable statutes of limitations with regard to the infliction of emotional distress claims, (4) lack of pendent jurisdiction over the state law claims, and (5) Plaintiffs' election of administrative remedies. Defendant also asserts a counterclaim demanding rescission of the sums paid Plaintiffs under the terms of the termination agreements executed by the parties in connection with the termination of Plaintiffs' employment, insofar as the court may determine that Plaintiffs claims are not barred by such agreements.

 Defendants originally moved for summary judgment on December 9, 1996. That motion was withdrawn on April 8, 1997 when Defendants filed an amended motion for summary judgment on the basis that termination agreements signed by Plaintiffs in connection with their discharge constitute releases which bar litigation of the instant claims.

 Plaintiffs' opposition to summary judgment was timely filed on June 13, 1997. Defendant replied in further support of summary judgment on July 3, 1997.

 By letter to the court filed March 10, 1998, Defendant withdrew its motion for summary judgment insofar as that motion depends on the validity and enforceability of the termination agreements with respect to Plaintiffs' ADEA claims. Accordingly, the motion for summary judgment is currently before the court only with regard to the pendent state claims.

 Based on the following discussion, Defendant's motion for summary judgment should be DENIED.

 FACTS1

 Plaintiff Terrance M. Clark commenced employment with Defendant Buffalo Wire Works Co., Inc. ("Buffalo Wire") in 1972. Clark was promoted to the position of foreman of the heavy aggregate screen department in 1976. Plaintiff Anthony S. Miszuk began working for Buffalo Wire in 1961 and was promoted to the position of foreman of the fabrications department in 1979. Plaintiff Nicholas Nesteruk started working for Buffalo Wire in 1974. Nesteruk was promoted to the position of foreman of the shipping department in 1979. Plaintiffs were unionized employees of Buffalo Wire until 1980, when all Buffalo Wire foreman positions became salaried, non-union positions. All three Plaintiffs occupied their foreman positions until their employment with Buffalo Wire was terminated on May 16, 1994.

 On May 16, 1994, Plaintiffs were called into a meeting with Charles Scheeler, President of Buffalo Wire. Scheeler informed Plaintiffs that their employment with Buffalo Wire had been terminated that day and presented each Plaintiff with an Employment Termination Agreement ("the Agreements"). Each Agreement states in its entirety:

 
EMPLOYMENT TERMINATION AGREEMENT
 
In recognition of [specific number of] years of service to Buffalo Wire and for other good and valuable consideration, it is agreed that Buffalo Wire will pay [Plaintiff] the lump sum of [dollars] in return for which [Plaintiff] releases and forever discharges Buffalo Wire, its officers, supervisors, agents and representatives from any and all claims and demands of any type or nature arising out of or related to his employment relationship with Buffalo Wire, including, but not limited to, claims of discrimination based upon race, sex, age, national origin, and physical or mental disability. [Plaintiff] shall have five (5) days to consider the terms of this Agreement and return an executed copy to Buffalo Wire.

 According to Buffalo Wire, the monetary amount paid to each Plaintiff under the Agreements represented one week of pay for each year of service to Buffalo Wire. *fn2" Each Plaintiff signed his copy of the Agreement. Clark returned his signed Agreement to Buffalo Wire on May 20, 1994. Miszuk and Nesteruk each returned their signed Agreements to Buffalo Wire on May 19, 1994. That each Plaintiff received his severance pay is undisputed.

 None of the Plaintiffs discussed the Agreements with an attorney prior to signing or returning them to Buffalo Wire. It is the position of Buffalo Wire that the Agreements contain provisions which release Buffalo Wire from liability for any claims arising out of or related to Plaintiffs' employment with Buffalo Wire. Plaintiffs maintain that they did not understand when they signed the Agreements that they were relinquishing their rights to pursue legal action with regard to their terminations. Plaintiffs further allege that at the time of their termination from Buffalo Wire, although they did not know of any express severance pay policy in effect as to non-union employees of Buffalo Wire, they were aware of other non-union employees who had received severance pay upon involuntary termination of employment with Buffalo Wire prior to attaining normal retirement age. Plaintiffs assert that they ...


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