The opinion of the court was delivered by: Curtin, District Judge.
Between 1987 and December 1997, Salerno was an executive in
the Buffalo offices of Leica's optical products division. Item
1, ¶¶ 4, 18. Salerno worked as a manager in the Buffalo Division
from 1986 until 1990. Id. ¶¶ 5, 7. In 1990, he was promoted to
the position of vice-president for the Buffalo Division. Id. ¶
7. Then, in April 1992, Leica named Salerno president of the
Buffalo Division. Id. ¶ 8.
In May 1996, Eric Poll, Leica's Corporate Director for Human
Relations, recommended that an outside consultant be retained to
work with Salerno on issues of management style. Id. ¶¶ 10-11.
In light of Poll's recommendations, Leica proposed a six-month
program of intensive supervision and evaluation for Salerno.
Id. ¶ 11. Salerno and two Leica representatives executed a
written agreement to formalize the terms of the six-month
program ("the Agreement"). The Agreement provided that at the
end of the six-month period Salerno either would continue to
work for Leica or Leica could opt to terminate Salerno's
employment. Id. ¶ 11. The Agreement further provided that if
Leica chose to terminate Salerno, Leica would grant him a
severance package commensurate with his experience, history, and
position with Leica. Id. ¶¶ 11-14 and Exh. A. In early December
1996, approximately five months into the six-month program,
Leica determined that Salerno was not making adequate progress
and decided to terminate his employment immediately. Id. ¶¶ 11,
17, and 18.
Salerno now claims that Leica violated the terms of the
Agreement by failing to provide him with adequate severance
benefits. Salerno states that Leica offered him a severance
package valued at $139,500, Item 7, p. 5, but insists that the
Agreement entitles him to a severance package worth just over
$287,000. See Item 1, ¶¶ 19-21. Salerno claims that Leica is
liable under ERISA for its failure to pay him his properly
calculated severance benefits.
The present action is the third of three lawsuits that Salerno
has commenced against Leica since his termination in December
Salerno commenced his first action against Leica on March 24,
1997, in New York State Supreme Court, County of Erie (Salerno
v. Leica, Inc., Index No. 1997/2527) ("the State Action").
See Item 5, ¶ 4 and Exh. A. Salerno's complaint in the State
Action is substantially identical to his complaint in the
present action. Compare Item 1 with Item 5, Exh. A. In the
State Action, Salerno asserted various breach of contract claims
under State common law and also asserted a violation of the
State's Wage Payment Law. Id. Exh. A, pp. 4-7.*fn1 After
discovery was completed, Leica moved to dismiss Salerno's
complaint. In relevant part, Leica argued that Salerno's claim
for severance benefits was barred on the grounds of ERISA
preemption. Item 5, ¶ 6.*fn2 Justice
Thomas P. Flaherty heard oral argument on this aspect of Leica's
motion to dismiss on April 26, 1999. Item 8, Exh. D. At
argument, Justice Flaherty questioned Leica's counsel on the
issue of ERISA preemption and on the status of an ongoing
federal lawsuit involving the same parties:
THE COURT: . . . Is there an ERISA cause of action
alleged [in this action] —
THE COURT: Is there in the federal action?
MR. DOREN: No. The federal action alleges the same
commonality of facts but alleges that because of age
and national origin somehow he was offered less than
he was entitled to, but in nowhere does he allege it
[i.e., an ERISA claim] and that's what he should
have done and when it's combined.
THE COURT: Not in either jurisdiction.
THE COURT: No ERISA claim.
MR. DOREN: Not yet. That's why we're here.
Item 8, Exh. D, p. 6. Later in the argument, Mr. Doren went on
to state that:
an ERISA cause of action should have been brought
from day one and [Salerno] has the right to amend. We
ask that the complaint be dismissed, ERISA cause of
action can be brought, [we will] likely remove it to
Federal Court and we'll have one lawsuit. And
contrary to plaintiffs contention, we didn't have the