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March 27, 1998

JOHN LAYAOU, Plaintiff,
XEROX CORPORATION and PETER DeMAURO, individually and in his capacity as an employee of Xerox Corporation, Defendants.

The opinion of the court was delivered by: LARIMER

 Plaintiff, John Layaou, commenced this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff, who was born in 1940, alleges that defendants Xerox Corporation ("Xerox") and Peter DeMauro, plaintiff's former supervisor, terminated his employment in January 1994 on account of his age. Plaintiff also asserts an age discrimination claim under the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. In addition, plaintiff asserts a claim (the legal basis for which is not spelled out in the complaint) alleging that Xerox refused to pay him certain benefits to which he was entitled under the "Xerox Retirement Income Guarantee Plan" ("RIGP").

 Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has cross-moved for summary judgment on the issue of liability, and for leave to amend the complaint. Both sides have also moved to exclude each other's expert testimony under Rules 403 and 702 of the Federal Rules of Evidence.


 Plaintiff began working for Xerox in 1972. He was terminated from employment in 1983, but rehired in 1987. At the time of his termination in 1994, plaintiff was employed as an analyst *fn1" in the Multinational Customer and Service Education ("MC&SE") unit of Xerox's Document Production Systems ("DPS") group.

 In December 1993, Xerox announced that for financial reasons, it was going to implement a worldwide reduction in force ("RIF") beginning in 1994, which would reduce its 97,500- employee workforce by some 10,000 employees. Xerox stated that each of its units would determine the number of employees within that organization that would be terminated, and the method of doing so.

 In DPS, employees were to be ranked by their manager in four areas: work quality, work speed, work orientation, and work skills. The scores were entered onto a form known as a Contribution Assessment Form ("CAF"). When this process was completed, the employees would be stack-ranked against each other, and in general, the lowest-ranking employees would be terminated.

 Although plaintiff disputes this, according to defendants, Xerox put in place a number of safeguards to ensure that the RIF was carried out fairly and without disparately affecting any protected categories of employees. Xerox states that senior managers would review employees' CAFs for consistency and fairness, and that Xerox's legal department also conducted analyses of the termination recommendations to make sure that they would not have a discriminatory effect.

 Layaou was evaluated by Peter DeMauro, his manager. DeMauro gave plaintiff a total score of eight out of a possible twenty. Xerox states that plaintiff's rating was then evaluated by a group of senior managers, although plaintiff denies this. At any rate, plaintiff was stack-ranked against the 182 other employees in MC&SE. Seven employees with scores lower than eleven, including Layaou, were selected for termination. Four others with such scores were not terminated. Two of those four employees were age sixty-three, and the other two were both fifty years old. In all, seven of the 150 employees age forty and over were terminated, and none of the thirty-three employees under forty were terminated. Plaintiff was informed of his termination around January 18, 1994.

 In addition to his claim that he was terminated on account of his age, plaintiff alleges that he applied for several positions that became open at Xerox during 1994, and that his applications were rejected without an interview. He claims that he was more qualified than the younger persons who were hired for those positions.


 I. Statute of Limitations on Discriminatory Discharge Claims

 Defendants contend that plaintiff's ADEA claim relating to his discharge is time-barred. Under the ADEA, an action may not be commenced until sixty 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"). The Second Circuit has applied this requirement strictly. See, e.g., Economu, 829 F.2d 311 at 315-16 (2d Cir. 1987) (affirming dismissal of ADEA claim where EEOC claim was filed 301 days after alleged act of discrimination).

 In the case at bar, Layaou filed his EEOC charge on April 7, 1995. Thus, any claims he makes with respect to acts occurring before June 11, 1994 are untimely. Since plaintiff was notified of his termination in January 1994, his claim arising from his termination is time-barred.

 Plaintiff contends that his action is not time-barred because he continued to be an employee, albeit on "inactive status," until March 1995. As the Second Circuit has stated, however, "the 300-day period, in the case of a discriminatory discharge, starts running on the date when the employee receives a definite notice of the termination, not upon his discharge." Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985)). The court in Miller held that the plaintiff's 300-day period under the ADEA began to run on August 28, 1978, when the plaintiff was told that, absent exceptional circumstances, he would be removed from the payroll on April 1, 1979 (which he was). Thus, "the last date of employment may not always coincide with the start of the statutory limitation clock." Economu, 829 F.2d at 315.

 This rule was set forth by the Supreme Court in Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), in which the Court held that the limitations period under Title VII commenced at the time the decision to deny the plaintiff tenure (which inevitably led to termination a year later) was made and communicated to the plaintiff. The Court stated that "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Id. (quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (1979)). "Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." 449 U.S. 250 at 257.

 The Court reaffirmed that rule the following year in Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981). In Chardon, the plaintiff school teachers had been notified prior to June 18, 1977 that they would be terminated at a specified date between June 30 and August 8, 1977. They sued under 42 U.S.C. § 1983, alleging that the decision to terminate them was made for purely political reasons, in violation of their rights under the First Amendment. Stating that "the fact of termination is not itself an illegal act," id. at 8, the Court held that the one-year limitations period began to run when the plaintiffs received notice that they would be terminated, and that the suits were therefore untimely. See also American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 123 (1st Cir. 1998) (limitations period in ADEA case commenced when plaintiffs elected to participate in a voluntary early retirement program--which they alleged was a charade meant to mask the employer's age discrimination--even though they continued to work for several months before they were actually terminated).

 In the case at bar, plaintiff admits that he was told in January 1994 that he would be terminated, though he would continue to receive a salary until March 1995. Plaintiff's Aff., sworn to Feb. 26, 1998, P 2. He states that "after January 1994, [he] had no duties or any authority at Xerox." Id. P 5. A letter dated January 18, 1994 from DeMauro to plaintiff also states, "you are being given separation notice effective January 18, 1994. This action is expected to be permanent. ... Salary continuance will begin on March 19, 1994 and you will be separated from Xerox when your salary continuance ends." Clemens Aff., sworn to Feb. 27, 1998, Ex. A (emphasis added). It is plain, therefore, that his 300-day period commenced in January 1994, and had long since expired when plaintiff filed his EEOC complaint on April 7, 1995.

 Plaintiff also contends that documents submitted by defendant refer both to January 18, 1994 and to March 19, 1994 as his termination date. That is irrelevant because even if March 19, 1994 were the correct date plaintiff's EEOC complaint was still untimely. In addition, as DeMauro's letter indicates (and as confirmed by a Xerox internal memorandum concerning the RIF, see Anne Mulcahy Aff., sworn to Apr. 11, 1997, Ex. C), March 19 was simply the date on which plaintiff was put on inactive status. The fact remains that he was notified of his termination on January 18, 1994.

 Plaintiff also contends that his ADEA claim is timely under a continuing-violation theory. Where discriminatory acts occur pursuant to a continuing practice and policy of discrimination, the limitations period may be delayed until the last discriminatory act in furtherance of the policy. Miller, 755 F.2d at 25. Where applicable, this rule allows claims of discrimination to be deemed timely even though they would be untimely standing alone. Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S. Ct. 1612, 128 L. Ed. 2d 339 (1994).

 There is no simple test for determining whether conduct constitutes a continuing violation. Generally, the "exception applies to cases involving specific discriminatory policies or mechanisms ..." Id.; see, e.g., O'Malley v. GTE Serv. Corp., 758 F.2d 818 (2d Cir. 1985) (enforcement of discriminatory mandatory retirement system is continuing violation). Thus, "multiple incidents of discrimination, even similar ones, that are not the ...

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