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February 15, 2002


The opinion of the court was delivered by: Gershon, District Judge.


Plaintiff Carl Gambello brings this action against defendants Time Warner Telecom, Inc., successor in interest to Time Warner Communications, Inc. ("TWTC"), Stephen McPhie, and Larissa Herda,*fn1 alleging 1) discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., and the New York State Human Rights Law ("HRL"), New York State Executive Law §§ 290 et seq.; 2) breach of contract; and 3) misrepresentation. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56(b) to dismiss plaintiffs claims in their entirety, and for sanctions pursuant to Fed.R.Civ.P. 11.


Unless otherwise indicated, the following facts are undisputed.

At the meetings, plaintiff claims that Rosenblum and Tveter said that the position would start as a Director position, but that over time it could develop into a Vice-President position if business volume warranted. He testified as follows:

Q. What was said in the course of that meeting?

A. . . .They talked about this position if there's was a significant amount of sales to be done to cable customers and others could start a director's spot, but then over time become a — become a VP spot and they asked me to consider all of the factors. . . .
Q. Did they discuss what it would take for this director's position to become over time a VP spot?
A. They talked about business volume warranting that kind of thing, because in their mind they visualized an extensive sales staff reporting into either a manager or a director and the director evolving, because of the span of control to a vice president spot.

Gambello Depo. 139-41, 145.

At the meeting, plaintiff also claims that he:

said that this is the company that I would like to retire from. I have no interest in going somewhere else, so when I said that, there seemed to be a general sense that this was something that was doable, as long as performance warranted that kind of thing. You never get guarantees, but you can recognize when people agree with what you are saying.

Id. 145-46. Plaintiff claims that, while neither Rosenblum nor Tveter said anything, Rosenblum nodded his head "in approval." Id. In response to a Request for Admission, plaintiff admits that his "employment was not of a specific duration." Margolis Exhibit I. Both Rosenblum and Tveter deny that they promised plaintiff either that he could work until he retired or that he would become a Vice-President. Rosenblum Depo. 41, 60-61; Tveter Aff. ¶ 7.

Finally, plaintiff claims that he:

A . . . mentioned things that were important to me and that I would have to consider and one of them was bridging my services from the prior relationship with Manhattan Cable to the new relationship under Time Warner AxS and I did that because under the old rule, the ten year rule, I was not eligible for pension, even though I had been with Manhattan Cable eight years or so, so I wanted the service bridge if that was possible.
Q Let me stop you for a second. Did you use the term bridging of service?

A Yes.

Q In the meeting with them?

A Yes.

Q Can you explain what you meant by bridging of service?
A Well, building on the eight years that I had so that I would become qualified just about immediately for pension.
Q So you wanted your approximately eight years of prior employment with Manhattan Cable —

A Right.

Q To count toward your pension benefits with Time Warner AxS?

A That's right.

Q Is that entirely what you meant by bridging of service?

A Yes.

Gambello Depo. 141-42. Rosenblum and Tveter told him that he could bridge his service from Manhattan Cable. Plaintiff claims that he would not have gone to work for TW AxS had these "representations" not been made. Gambello Aff. ¶ 8.

On January 17, 1994, plaintiff signed an employment application and began work. Plaintiff was 53 years old. The employment application states that

I understand that nothing contained in this employment application or in the granting of any part of the employment process, is intended to create an employment contract between the companies and myself. If I am employed, either the companies or I may terminate my employment at anytime and for any reason.

Gambello Depo. Exhibit 7. Plaintiff also received an Employee Handbook, which states that employment can be terminated with or without cause, and with or without notice, at the option of either the company or the employee. The handbook also stated that "work rule violations are usually addressed by the following progressive disciplinary procedures: 1) First Step: Verbal Warning; 2) Second Step: Written Warning; 3) Third Step: Suspension or Performance Improvement Plan; 4) Fourth Step: Termination. However, the outlined disciplinary procedures are not intended to be all inclusive. Circumstances surrounding the violations are a factor in determining appropriate discipline." A non-exhaustive list of major work rules violations does not include failure to meet sales predictions. Gambello Depo. 204, 206, Exhibits 9,10.

2. Employment and Termination: At TWAxS, plaintiff reported to Tveter. His responsibilities involved the sale and marketing of dedicated services, which provide a fixed bandwidth of telecommunications connectivity between two specified points. Plaintiffs duties also included ensuring compliance with franchises, providing communication services to customers, identifying buildings that represented significant sales opportunities, developing job descriptions for sales executives and engineers, and developing the business brochure. In 1994 and 1995, TWAxS was engaged in the construction and preliminary marketing of a network to prepare for the installation of a switch which, unlike dedicated services, permits connectivity between any two points. With the installation of a network and a switch, TWAxS would be able to compete with local telephone service providers such as NYNEX. Gambello Depo. 221; Tveter Dec. ¶ 9-10. Plaintiff admits that, since TWAxS was in the process of installing a network and switch, TWTC had low sales expectations in 1994 and 1995, but that sales expectations would increase once a network and switch had been installed. Gambello Depo. 231-32, 240.

In 1994 and 1995, plaintiff received annual evaluation scores of 3.68 and 3.7, respectively, on a scale of 4 from Tveter. A score of 3 is described as "Meets Requirements. Performance is consistently at an expected level of competency. Occasionally performs above expected levels." A score of 4 is described as "Exceeds Requirements. Performs above expected levels with consistently high quality results." On the 1995 evaluation, Tveter notes that the "network is nearly ready and now the real challenge begins." Gambello Aff. Exhibits A, B.

By late 1995 or early 1996, the switch had been installed, and Plaintiff began selling switch services on a flat rate basis. The switch never became fully operational during Plaintiffs tenure so TWAxS could not sell services on a usage basis. Plaintiff and Tveter set a sales/revenue growth budget for 1996 of $3,781,452. The actual 1996 revenue growth was $1,457,389. This shortfall, $2,324,063, was the greatest shortfall in the nation. New York's actual revenue was significantly lower than much smaller markets, including Charlotte, Raleigh, and Rochester, and San Antonio. San Antonio ...

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