The opinion of the court was delivered by: John T. Curtin, District Judge.
Plaintiff has moved to reargue this court's decision of February 14, 2002, Item 83, and defendants Exchange Insurance Company, Selective Insurance Company of America, and Selective Insurance Group, Inc. (collectively "defendants" or "Selective") have moved for summary judgment dismissing the remainder of plaintiff's complaint. Item 106.
In 1964, Vincent Townsend began his career in the insurance industry. Item 60, Ex. 3, ¶ 13. After holding a number of positions with different insurance companies, mainly in Central and Western New York, he was hired by Exchange Insurance Company in April 1987 as Agri Business Manager. Id., ¶ 18. He was promoted to Senior Marketing Representative, and was later made Team Leader of the Lower Hudson Valley and Western New York Commercial Underwriting Teams. Id. In 1992, Exchange was acquired by Selective Insurance Company, and Townsend became employed by Selective. Id., ¶ 21. In 1996, the Buffalo office of Selective was restructured, and the number of Underwriting Team Leader positions was reduced from three to two. Item 60, Ex. 1, pp. 1, 2. The employees were told to reapply for the positions they desired. Item 60, Ex. 11, p. 14. Townsend, who was 53 years old at the time, applied for one of the Team Leader positions and for two of the AMS positions. Id., p. 2. He was interviewed for those positions in July 1996. Id., pp. 291-92. Townsend became ill during the second week of August 1996, and underwent heart surgery that same month. Id., p. 307. He was out of work on paid disability leave until he returned to work on December 23, 1996. Id., p. 308.
In September 1996, the Team Leader positions were filled by Anthony Morano (age 61) and Arlene Callahan (age 46). Item 61, ¶ 8. The AMS positions were filled by Karen Ryan (age 40) and Tim Anderson (age 34). Item 108, ¶ 3. In October 1996, Mr. Morano was removed as Team Leader, and on December 5, 1996, he was replaced by James Chavanne (age 35). Item 61, ¶¶ 9, 10.
On January 3, 1997, Townsend told his supervisors that he wished to resign. He asked whether Selective would provide him with the displacement package that employees displaced in the restructuring had received. Id., p. 322. He submitted a letter of resignation on that date. On January 20, 1997, Townsend signed a separation agreement containing the terms of his displacement package. Townsend would receive twenty weeks of severance pay, and his last day of work would be March 29, 1997. Id., p. 329. Selective provided Townsend with an additional week of pay, without his having to work, to make his separation effective April 6, 1997. This would insure his eligibility for a pension. Id., p. 330.
On June 19, 1997, Townsend swore to a charge, submitted to the Equal Employment Opportunity Commission ("EEOC"). Item 60, Ex. 9. He asserted: "On or about September 1, 1996, I was effectively terminated from my position as Team Leader because of my age, in violation of the Age Discrimination In Employment Act and the New York State Executive Law." Id., pp. 1-2. Following its investigation, the EEOC found no reasonable cause that the Age Discrimination in Employment Act ("ADEA") had been violated. Item 60, Ex. 10.
Plaintiff commenced this action on November 3, 1997. In his complaint, he alleged that in September 1986 he was demoted, constructively discharged, and replaced because of age discrimination while on disability leave. Item 1, ¶ 18. He claimed he was replaced as a Team Leader by a "younger, less experienced employee and was denied alternative employment positions solely because of his age." Id., ¶ 20. In his response to Defendants' First Set of Interrogatories, plaintiff identified only Arlene Callahan as that younger, less experienced employee. Item 60, Ex. 6, pp. 5-6.
Defendants filed a motion for summary judgment in April 1999 seeking to dismiss the complaint. Item 14. In a Report and Recommendation filed March 29, 2000, United States Magistrate Judge Hugh B. Scott recommended the dismissal of plaintiff's constructive discharge, compelled self-defamation, and ERISA claims, but denied the motion with respect to the ADEA and the New York State Human Rights Law ("HRL") claims. Item 26. The Magistrate Judge noted that plaintiff was apparently not considered as a replacement for Morano in the Team Leader position. Item 26, pp. 7-8. This finding suggested that the Magistrate Judge considered that the demotion of Mr. Morano and his replacement by Mr. Chavanne may have been part of plaintiff's age discrimination claim.
On May 17, 2001, this court affirmed the findings in the Report and Recommendation. Item 37. At the court's request, plaintiff clarified that it was his position that the appointment of James Chavanne "was an act of age discrimination." Item 42.
In a motion filed November 9, 2001 (Item 58), defendants sought partial summary judgment and dismissal of plaintiff's claims for back pay, front pay, and punitive damages under the ADEA and the HRL, as well as dismissal of compensatory damages claims under the ADEA. Additionally, defendants sought dismissal of any age discrimination claim based on the hiring of James Chavanne as a Team Leader. In an order filed February 14, 2002, this court granted the motion dismissing the discrimination claim based on the hiring of Chavanne, the punitive damages claims under the ADEA and the HRL, and emotional pain and suffering claims under the ADEA. Item 83. The court stated that plaintiff has no claim for back pay for the periods of August 1996 to December 23, 1996, while he was out on disability, and from December 23, 1996, when he returned to work, until April 6, 1997, his last day on the Selective payroll.*fn1 The court did not dismiss plaintiff's claim for back pay from April 7, 1997 onward.
Based on the court's order, defendants asked the court's permission to file an additional motion for summary judgment, while plaintiff asked to reargue the defendants' second motion for summary judgment. In an order filed May 14, 2002, the court allowed plaintiff to reargue the previous motion and granted the defendants' application to file a further motion for summary judgment on or before June 21, 2002. In its order, the court stated that "[i]f, upon receipt of the motion, plaintiff determines that further discovery is ...