United States District Court, S.D. New York
April 1, 2004.
MICHAEL M.BENDIK, Plaintiff -against- CREDIT SUISSE FIRST BOSTON (USA), INC., Defendant
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
OPINION & ORDER
Plaintiff Michael M. Bendik brings a claim of age and disability
discrimination, as well as breach of contract, against defendant Credit
Suisse First Boston (USA), Inc. Plaintiff brings this action pursuant to
the Age Discrimination in Employment Act, 29 U.S.C. § 621, et
seq. ("ADEA"), the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq. ("ADA"), the New York State Human Rights Law,
N.Y. Exec. Law. § 296, et seq. ("NYSHRL"), and the
Administrative Code of the City of New York § 8-107, et seq.
("NYCHRL"), as well as state contract law.
The instant opinion addresses two motions made by defendant. Defendant
has moved to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the counts of plaintiff's complaint that allege age
discrimination and retaliation in violation of the ADEA, disability
discrimination and retaliation in violation of the ADA, and breach of
contract. Defendant has moved for summary judgment, pursuant to Rule
56 of the Federal Rules of Civil Procedure, on the remaining
counts of the complaint, which allege age and disability discrimination
and retaliation in violation of NYSHRL and NYCHRL. For the reasons that
follow, summary judgment is granted to defendant on counts one through
twelve (alleging discrimination and retaliation); defendant's motion to
dismiss is denied with respect to count thirteen (alleging breach of
Plaintiff is a 55-year old male, who claims that he suffers from
physical disabilities that include fibromyalgia, osteoarthritis, and
scoliosis. Defendant is the successor in interest to Donaldson, Lufkin
& Jenrette, Inc. ("DLJ"). At all relevant times, DLJ was engaged in
the business of investment and merchant banking, as well as the
securities brokerage business. Plaintiff was on DLJ's payroll from 1974
until 2000. Plaintiff was initially hired to work in DLJ's accounting
department. The last position held by plaintiff at DLJ was Senior Vice
President and Chief
Accounting Officer, a position which plaintiff assumed in or about
1983. As Chief Accounting Officer, plaintiff was responsible for
overseeing all corporate accounting, and he reported to Anthony Daddino
("Daddino"). Daddino was, at all relevant times, DLJ's Executive Vice
President and Chief Financial Officer. For the calendar year 1998,
plaintiff's gross income from DLJ not including profit-sharing
benefits, pension benefits and other benefits exceeded
At a meeting of DLJ's Board of Directors on November 17, 1999, Edward
Resch was appointed to the position of Senior Vice President and Chief
Accounting Officer of DLJ, "effective December 1, 1999, to hold such
office until his successor has been duly elected and qualified." On
February 29, 2000, the parties signed a document entitled "Re: Employee's
Reservation of Rights in Contemplation of Settlement of Possible
Litigation." In reference to plaintiff, it provided that "Employee
intends to apply for disability benefits. In making such application, it
shall not be deemed a waiver of any rights by Employee against DLJ as
provided by law." On May 19, 2000, plaintiff's employment with DLJ was
Plaintiff's counsel included the following claims in a letter to
defendant's counsel dated April 3, 2002:
"Documents which I have been provided with
indicate that Mike's membership in Donaldson,
Lufkin & Jenrette, Inc.'s ("DLJ") Executive
Supplemental Retirement Program ("ESRP") III was
improperly terminated after May, 2000
notwithstanding specific promises by you and
Anthony Daddino that he would continue to be a
member of ESRP III. In addition, these documents
also show that Mike has not received all sums due
and owing to him by reason of his participation in
Plaintiff's counsel included the following claims in a second letter to
defendant's counsel dated April 3, 2002:
"Mike informs me that he has not received all sums
due and owing to him by reason of his
participation in Donaldson, Lufkin & Jenrette,
Inc.'s ("DLJ") 1996 Incentive Compensation Plan,
Long Term Award Pool, also known as `LTI-V Unit
Investments.' While Mike received a distribution
of $462,776.50 in February, 2000, he has not
received the remaining amounts he is entitled to
having fully vested in the plan and despite prior
demands for payment."
By a letter dated July 3, 2002, plaintiff was informed that defendant
had purchased certain portions of plaintiff's interests in two "LBO"
plans. By a letter dated August 19, 2002, plaintiff's counsel stated that
he was returning the payment offered by defendant for those interests, on
the ground that plaintiff "was fully vested in his interests in the Plans
before CSFB purported to cancel and purchase his unvested interests." The
relevant interests were subsequently restored to plaintiff.
B. Procedural History
Plaintiff filed a charge with the U.S. Equal Employment Opportunity
Commission ("EEOC") on March 14, 2001, alleging discrimination on the
basis of age and disability, as well as retaliation. Plaintiff indicated
that he was alleging "continuing action."
The EEOC issued plaintiff a dismissal and notice of rights on May 29,
2001. The EEOC informed plaintiff that it could not investigate his
charge "because it was not filed within the time limit required by law."
It informed plaintiff that he had the right to file a lawsuit under
federal law within 90 days. On August 22, 2001, the parties stipulated to
"that the 90-day period within which Mr. Bendik is
required to commence an action as a result of the
Dismissal and Notice of Rights dated May 29, 2001
by the [EEOC] . . . is extended to November 2,
2001, and that if such an action is commenced by
Mr. Bendik on or before November 2, 2001, CSFB
will not assert the 90-day statute of limitations
as a defense to that action. Nothing contained in
this tolling agreement shall preclude CSFB from
asserting any other defenses CSFB may have to Mr.
Bendik's claims and charges including, but not
limited to, the defenses CSFB interposed in its
"Position Statement" letter dated May 21, 2001 by
your firm on behalf of CSFB submitted to the EEOC
in response to the charges filed by Mr. Bendik
with that agency, and including the untimeliness
of the charge."
On October 29, 2002, the parties stipulated that "the filing deadline
provided for by the August 22, 2001 tolling agreement is extended from
October 31, 2002 to December 2, 2002, and that in all other respects the
terms and reservations of the August 22, 2001 tolling agreement remain in
Plaintiff commenced this action on December 2, 2002. Defendant filed a
motion to dismiss on February 21, 2003, and a motion for summary judgment
on May 9, 2003.
On July 17, 2002, plaintiff filed a complaint in an action entitled
Bendik v. Credit Suisse First Boston (USA), Inc., 02 Civ. 5504
("LTI Action"). The LTI Action is assigned to Judge Jones of this
District, and a summary judgment motion is currently pending. In his
complaint in that action, plaintiff alleged that defendant breached the
terms of a long term investment plan ("LTI"), agreed to by plaintiff and
DLJ. Plaintiff is demanding $462,776.50 plus interest.
LAW RELATING TO PLAINTIFF'S DISCRIMINATION CLAIMS
Under the ADEA it is "unlawful for an employer to discharge an employee
because of that employee's age." Cronin v. ITT Corp.,
737 F. Supp. 224, 227 (S.D.N.Y. 1990) (quoting Hollander v. Am. Cynamid
Co., 895 F.2d 80, 83 (2d Cir. 1990)). ADEA claims are assessed using
the burden shifting analysis set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
and its progeny. Under that framework, a plaintiff must satisfy the
minimal burden of making out a prima facie case of
discrimination; the burden then shifts to the defendant to produce a
legitimate, nondiscriminatory reason for its actions; and the final
rests on the plaintiff to prove not only that the proffered
nondiscriminatory reason was pretextual but also that the defendant
discriminated against the plaintiff. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105
No civil action based on a claim of age discrimination may be brought
in federal court unless the plaintiff has timely filed the claim with the
EEOC. Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 59 (2d
Cir. 1986). A victim of age discrimination in New York must file the EEOC
charge within 300 days after the discriminatory action or within 30 days
after the end of a state investigation, if earlier. Miller v. Int'l
Tel & Tel Corp., 755 F.2d 20, 23 (2d Cir. 1985). 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 the employee's discharge. Id. The notice may be oral.
Id. Where a plaintiff testified that he received oral notice
that he would, "absent exceptional circumstances," be removed from the
payroll on a date seven months later, this admission established that the
running of the statute of limitations period was triggered on the date on
which the oral notice was given. Id. at 24. "[T]he mere
possibility that the decision might be reversed was not enough to label
it advisory or ineffective for time-bar purposes." Id.
The filing deadline is subject to equitable modification or estoppel.
Dillman, 784 F.2d at 59. Such doctrines, however, are to be
applied "sparingly." Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113, 122 S.Ct. 2061, 2072 (2002). See Cerbone v. Int'l
Ladies' Garment Workers' Union, 768 F.2d at 49 (2d Cir. 1985)
(rejecting an equitable estoppel argument where no "extraordinary
circumstance" was presented). The doctrine of equitable estoppel is
invoked "in cases where the plaintiff knew of the existence of his cause
of action but the defendant's conduct caused him to delay in bringing his
lawsuit." Cerbone, 768 F.2d at 49-50. The doctrine properly may
be invoked in a case in which the employer has misrepresented the length
of the limitations period or in some other way has "lulled the plaintiff
into believing that it was not necessary for him to commence litigation."
Dillman, 784 F.2d at 61 (quoting Cerbone, 768 F.2d at
50). To invoke equitable estoppel, a plaintiff must show that: (1) the
defendant made a definite misrepresentation of fact, and had reason to
believe that the plaintiff would rely on it; and (2) the plaintiff
reasonably relied on that misrepresentation to his detriment. Buttry
v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995). The Second
Circuit has declined to find equitable estoppel where the alleged conduct
"does not amount to the type of bad faith, dilatory actions that require
equity to step in and estop a statute of limitations defense."
Dillman, 784 F.2d at 61.
The ADA prohibits covered employers from discriminating against "a
qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a).
In order to withstand summary judgment, a plaintiff must establish an
inference of discrimination under the three-tiered test set forth in
McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668,
and its progeny. Under the first tier, plaintiff is required to present a
prima facie case of discrimination by showing that: (1) plaintiff's
employer is subject to the ADA; (2)
plaintiff suffers from a disability within the meaning of the ADA;
(3) plaintiff could perform the essential functions of the job with of
without reasonable accommodation; and (4) plaintiff was fired or
otherwise discriminated against because of plaintiff's disability.
Valentine v. Standard & Poor's, 50 F. Supp.2d 262, 281
(S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000). The burden
then shifts to the employer to "articulate some legitimate,
nondiscriminatory reasons" for the employee's discharge. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Under the third tier of the
test, plaintiff bears the ultimate burden of proving that the reason
proffered by the employer is a pretext for unlawful discrimination.
Valentine, 50 F. Supp.2d at 282.
An ADA charge is subject to the time limitations set forth in Section
706(e)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e)(1).
See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir.
1999). That section requires a claimant to file a charge of
discrimination with the EEOC within 180 days of the alleged
discriminatory act, unless the "person aggrieved has initially instituted
proceedings with a State . . . agency with authority to grant or seek
relief from such practice," in which case the claimant has 300 days to
file his charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1).
The statute of limitations for ADA claims accrues at the time when the
plaintiff "knew or had reason to know of the injury serving as the basis
for his claim." Harris v. City of New York, 186 F.3d 243, 247
(2d Cir. 1999) (addressing the question when plaintiff knew or should
have known that he had been passed over for promotion to sergeant.).
In order to make out a prima facie case of retaliation, a
plaintiff must show by a preponderance of the evidence " participation
in a protected activity known to the defendant;  an employment action
disadvantaging the plaintiff;  a causal connection between the
protected activity and the adverse employment action." Holt v.
KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996 (internal
quotation marks omitted). "[T]he burden that must be met by an employment
discrimination plaintiff to survive a summary judgment motion at the
prima facie stage is de minim[i]s." Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (alterations in
original) (internal quotation marks omitted). Once the plaintiff has
established a prima facie case, defendant then has the burden of
articulating a legitimate, non-retaliatory reason for the complained of
action. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768(2d
Cir. 1998). If the defendant meets its burden, plaintiff must adduce
evidence "sufficient to raise a fact issue as to whether [the employer]'s
reason was merely a pretext" for retaliation. Id. at 769
(quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1309 (2d Cir.
An adverse employment action is a "materially adverse change in the
terms and conditions of employment." Weeks v. New York State (Div. of
Parole), 273 F.3d 76, 85 (2d Cir. 2001) (quoting Galabya v. New
York City Ed. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). To be
"`materially adverse,' a change in working conditions must be more
disruptive than a mere inconvenience or an alteration of job
responsibilities." Weeks, 273 F.3d at 85 (quoting
Galabya, 202 F.3d at 640 (internal quotation marks omitted)).
Such a change "might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a
particular situation." Weeks, 273 F.3d at 85 (quoting
Galabya, 202 F.3d at 640) (internal quotation marks omitted).
The Second Circuit has noted that "a criticism of an employee (which is
part of training and necessary to allow employees to develop, improve and
avoid discipline) is not an adverse employment action." Weeks,
273 F.3d at 86.
Temporal proximity can demonstrate a causal nexus between the protected
activity and the adverse employment action. Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). However, the
Supreme Court has noted that "[t]he cases that accept mere temporal
proximity between an employer's knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal proximity
must be Very close.'" Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001) (internal quotations and
citations omitted) (adding that "[a]ction taken (as here) 20 months later
suggests, by itself, no causality at all.").
4. CONTINUING VIOLATION
To invoke the "continuing violation" exception to the normal
knew-or-should-have-known accrual date of a discrimination claim, a
plaintiff must show either (1) "specific ongoing discriminatory policies
or practices," or (2) "specific and related instances of discrimination
[that] are permitted by the employer to continue unremedied for so long
as to amount to a discriminatory policy or practice." Weeks, 273
F.3d at 82. A continuing violation may not be based on an employee's
having suffered from the effects of an earlier discriminatory act.
Miller, 755 F.2d at 25; see Harris, 186 F.3d at 250.
Nor can an otherwise barred claim be rendered timely by the mere
continuation of the claimant's employment. Harris, 186 F.3d at
250. Rather, the claimant must allege both the existence of an ongoing
policy of discrimination and some non-time-barred acts taken in
furtherance of that policy. Harris, 186 F.3d at 250. The Second
Circuit has held that "multiple incidents of discrimination, even similar
ones, that are not the result of a discriminatory policy or mechanism do
not amount to a continuing violation." Quinn, 159 F.3d at 765.
The Second Circuit has found that where acts alleged to have occurred
outside the limitations periods "are not continuous in time with one
another or with the timely acts" that are alleged, this "discontinuity"
is fatal to a "continuing violation" argument. Id. at 766;
see Weeks, 273 F.3d at 84 ("Absent unusual circumstances, a
two-year gap is a discontinuity that defeats use of the continuing
The Supreme Court recently emphasized the narrowness of this exception,
finding that "discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges." Morgan, 536 U.S. at 113, 122 S.Ct. at 2072 (noting
that "[d]iscrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify."). Each discrete
discriminatory act "starts a new clock for filing charges alleging that
act." Id. (reversing a 9th Circuit holding that "so long as one
act falls within the charge filing period, discriminatory and retaliatory
acts that are plausibly or sufficiently related to that act may also be
considered for the purposes of liability.").
5. STATE & CITY CLAIMS
A three-year statute of limitations applies to NYSHRL claims.
Lambert v. Genesee Hospital, 10 F.3d 46, 59 (2d Cir. 1993). The
same is true of NYCHRL claims. Ruiz v. New York City Fire Dep'
t, 2001 WL 767009 at *2 (S.D.N.Y. 2001).
Claims brought under NYSHRL are analyzed under the same burden-shifting
scheme as ADEA claims. Leopold v. Baccarat, Inc., 174 F.3d 261,
264 n. 1 (2d Cir. 1999); Tyler v. Bethlehem Steel Corp.,
958 F.2d 1176, 1180 (2d Cir. 1992); see Song v. Ives Lab., Inc.,
957 F.2d 1041, 1048 (2d Cir. 1992) (noting "New York's wholesale adoption of
federal standards in discrimination cases under [NYSHRL]"). The same is
true of cases brought under NYCHRL. Abdu-Brisson, 239 F.3d at
466; Brennan v. Metro. Opera Assoc., Inc., No. 95 Civ. 2926,
1998 WL 193204, at *7 (S.D.N.Y. 1998), aff'd, 192 F.3d 310 (2d
LAW RELATING TO PLAINTIFF'S BREACH OF CONTRACT CLAIM
Under New York law, "an action for breach of contract requires proof of
(1) a contract; (2) performance of the contract by one party, (3) breach
by the other party, and (4) damages." First Investors Corp. v.
Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998). An
employment contract that lacks an express duration creates a relationship
that is terminable at will. Rule v. Brine, Inc., 85 F.3d 1002,
1013 (2d Cir. 1996) (citing Sabetay v. Sterling Drug, Inc.,
69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987)).
The federal Employee Retirement Income Security Act of 1974, 88 Stat.
829, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"),
subjects to federal regulation plans providing employees with fringe
benefits. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90,
103 S.Ct. 2890, 2896 (1983). ERISA is a comprehensive statute designed to
promote the interests of employees and their beneficiaries in employee
benefits plans. Id. The term "employee benefit plan" is defined
as including both pension plans and welfare plans. Id.
Section 514(a) of ERISA, 29 U.S.C. § 1144(a), preempts "any and all
State laws insofar as they may now or hereafter relate to any employee
benefit plan" covered by ERISA. Id. at 91, 2897. The term "State
law" includes "all laws, decisions, rules, regulations, or other State
action having the effect of law, of any State." § 514(c)(1),
29 U.S.C. § 1144(c)(1). A state common law action which merely amounts
to an alternative theory of recovery for conduct actionable under ERISA
is preempted. Diduck v. Kaszycki & Sons Contractors, Inc.,
974 F.2d 270, 288 (2d Cir. 1992). ERISA's expansive preemptive provision
is "broadly employed." Devlin v. Transp. Communications Int'l
Union, 173 F.3d 94, 98 (2d Cir. 1999). However, the Supreme Court
has instructed that analysis under ERISA's preemption clause must begin
with the "starting presumption that Congress does not intend to supplant
state law." New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671,
1676, 131 L.Ed.2d 695 (1995). Preemption does not occur "if the state law
has only a `tenuous, remote or peripheral' connection with covered plans,
Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21, as is the
case with many laws of general applicability . . ." Dist. of Columbia
v. Greater Washington Bd
of Trade, 506 U.S. 125, 130 n.1, 113 S.Ct. 580, 583 n.1,
121 L.Ed.2d 513 (1992).
The Supreme Court has identified several ways in which the
anti-preemption presumption can be overcome. Plumbing Indus. Bd. v.
E. W. Howell Co., Inc., 126 F.3d 61, 67 (2d Cir. 1997). First,
preemption will apply where a state law clearly "refers to" ERISA plans
in the sense that the measure "acts immediately and exclusively upon
ERISA plans" or where "the existence of ERISA plans is essential to the
law's operation." Howell, 126 F.3d at 67 (quoting California
Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,
Inc., 519 U.S. 316, 325, 117 S.Ct. 832, 838 (1997)). A state law may
"refer to" ERISA plans for preemption purposes without directly
mentioning the ERISA statute. Howell, 126 F.3d at 67. However,
an indirect reference is sufficient only if it is clear that the state
law, although not using the words "ERIS A plan," applies only to ERISA
plans or requires their existence in order to operate. Id. at
68; see id. at 67-68 ("we will not lightly assume that a
generally worded statute that does not expressly mention ERISA by name
`refers to' ERISA plans for purposes of preemption analysis."). Second, a
state law is preempted even though it does not refer to ERISA or ERISA
plans if it has a clear "connection with" a plan in the sense that it
"mandate[s] employee benefit structure or their administration" or
"provid[es] alternative enforcement mechanisms." Id. at 67
(quoting Travelers, 514 U.S. at 658, 115 S.Ct. at 1678). ERISA
preempts any state law that refers to or has a connection with covered
benefit plans (and that does not fall within a § 514(b) exception)
"even if the law is not specifically designed to affect such plans, or
the effect is only indirect," Ingersoll-Rand Co. v. McClendon,
498 U.S., at 139, 111 S.Ct., at 483 (1990). Outside these areas, the
presumption against preemption is considerable state laws of
general application that merely impose some burdens on the administration
of ERISA plans but are not "so acute" as to force an ERISA plan to adopt
certain coverage or to restrict its choice of insurers should not be
disturbed. Howell, 126 F.3d at 67 (quoting De Buono v.
NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 816 & n.
16, 117 S.Ct. 1747, 1753 & n. 16 (1997)).
MOTION FOR SUMMARY JUDGMENT
1. Applicable Law
Summary judgment is proper where "[t]he pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material
fact is present if the fact "might affect the outcome of the suit under
governing law" and the supporting evidence is "such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986). In evaluating a summary judgment motion, "[t]he
judge's function is not . . . to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. "In making
its determination, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party." Sorlucco. v.
New York City Police Department, 888 F.2d 4, 5 (2d Cir. 1989). That
is to say, the deposition testimony, affidavits, and documentary
evidence must be viewed in the light most favorable to the
plaintiff. Roge v. NYP Holdings, Inc., 257 F.3d 164, 165 (2d
Cir. 2001). The burden is on the movant to demonstrate that no genuine
issue exists respecting any material fact. See Gallo v. Prudential
Residential Servs., Lt'd P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
"[I]n moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant's burden will be satisfied
if he can point to an absence of evidence to support an essential element
of the nonmoving party's claim." Goenaga v. March of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Where the initial
showing is not made, "summary judgment will be denied, even though the
party opposing the motion has submitted no probative evidence to support
its position or to establish that there is a genuine issue for trial."
U.S. v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976).
Where the initial showing is made, the nonmoving party must then meet a
burden of coming forward with "specific facts showing that there is a
genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to
establish the existence of [every] element essential to that party's
case, and on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Where the nonmoving
party bears the ultimate burden of proof at trial, the motion may not be
rebutted by restating allegations in the pleadings or statements in the
party's own affidavit. Id., 477 U.S. at 324, 106 S.Ct. at 2553.
Summary judgment is appropriate when the party opposing the motion relies
exclusively on "conclusory allegations or denials." R.G. Group, Inc.
v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
The Second Circuit has cautioned that courts must be "particularly
cautious about granting summary judgment to an employer in a
discrimination case when the employer's intent is in question. Because
direct evidence of an employer's discriminatory intent will rarely be
found, affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination.'"
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)
(quoting Gallo, 22 F.3d at 1224). The Second Circuit has noted
that "in a Title VII action, where a defendant's intent and state of mind
are placed in issue, summary judgment is ordinarily inappropriate."
Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). The
Second Circuit has "consistently held where subjective issues regarding a
litigant's state of mind, motive, sincerity or conscience are squarely
implicated, summary judgment would appear to be inappropriate and a trial
indispensable." LeFevre, 745 F.2d at 159 (2d Cir. 1984).
However, it has also made clear that:
"The summary judgment rule would be rendered
sterile . . . if the mere incantation of intent or
state of mind would operate as a talisman to
defeat an otherwise valid motion. Indeed, the
salutary purposes of summary judgment
avoiding protracted, expensive and harassing
trials apply no less to discrimination
cases than to commercial or other areas of
litigation." Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir.), cert. denied,
474 U.S. 829, 106 S.Ct. 91 (1985).
2. State and City Discrimination Claims Counts Three Through Six
Plaintiff alleges that defendant terminated plaintiff's employment
because of plaintiff's age and physical disabilities. Plaintiff filed his
complaint on December 2, 2002, and thus, any state or
city discrimination claim based on alleged acts occurring prior to
December 2, 1999, would generally be time-barred.
There is no genuine issue as to whether plaintiff knew, or had reason
to know, of his termination prior to December 2, 1999. It is undisputed
that at a meeting of the Board of Directors of DLJ on November 17, 1999,
Edward Resch was appointed to the position of Senior Vice President and
Chief Accounting Officer of DLJ, "effective December 1, 1999, to hold
such office until his successor has been duly elected and qualified."
See also Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 14
("before December, 1999 Bendik advised DLJ that he believed that the
decision to terminate his employment was discriminatory and
unlawful and based on his age and physical disabilities.") (emphasis
added). Plaintiff's December 2, 2002, filing of the instant complaint was
therefore outside the statute of limitations for both his city and his
state discrimination claims. The accrual date of such claims is the date
of the injury, rather than of the subsequent formal termination of
plaintiff on May 19, 2000.
We are not persuaded by plaintiff's argument that equitable estoppel is
merited. Plaintiff has failed to offer any evidence to support a finding
that defendant made a "definite misrepresentation of fact."
Buttry, 68 F.3d at 1493. Nor has plaintiff made a showing
sufficient to establish that defendant resorted to "bad faith, dilatory
actions." Dillman, 784 F.2d at 61. We also reject defendant's
argument that the agreement signed by the parties on February 29, 2000
alters the effect of the statute of limitations. The agreement stated
that "[e]mployee intends to apply for disability benefits. In making such
application, it shall not be deemed a waiver of any rights by Employee
against DLJ as provided by law." Plaintiff claims that "DLJ agreed
as reflected by the Tolling Agreement that Bendik could
reserve all rights against DLJ (including tolling any statute of
limitations) in the event a settlement with DLJ could not ultimately be
reached." We find that plaintiff's parenthetical addition is not
justified by the substance of the agreement, since "tolling any statute
of limitations" is not a right that was held by plaintiff.
We are also unpersuaded by plaintiff's argument that the continuing
violation doctrine alters the effect of the statute of limitations.
Plaintiff invokes the continuing violation doctrine on the grounds that
"[a]part from making baseless allegations that his work performance was
poor, stripping Bendik of his work duties and responsibilities,
arbitrarily refusing to pay Bendik his 1999 bonus compensation, and
terminating his employment in May, 2000, DLJ (and now CSFB) refused
and continues to refuse to pay monies which are contractually
due and owing to Bendik." Pl.'s Memo in Opp'n to D's Mots, at 26
(emphasis added). Plaintiff claims that defendant's "acts of retaliation
against Bendik from the moment he was fired by DLJ in May, 2000 and
which continue to this very day, constitute an "ongoing
discriminatory policy or practice" by DLJ (and now CSFB) against Bendik
which comes under the "continuing violation" doctrine," and that
"[a]ccordingly, Bendik's federal discrimination claims are not
time-barred." (emphasis in the original). The continuing violation
exception applies only in the context of (1) "specific ongoing
discriminatory policies or practices," or (2) "specific and related
instances of discrimination [that] are permitted by the employer to
continue unremedied for so long as to amount to a discriminatory policy
or practice." Weeks, 273 F.3d at 82. Plaintiff has failed to
offer evidence sufficient to allow a reasonable juror to find that either
of these conditions was satisfied.
We therefore grant defendant's motion for summary judgment as to
counts three through six.
3. State and City Retaliation Claims Counts Nine Through Twelve
With respect to the first element of the prima facie case of
retaliation, plaintiff states that "it is incontrovertible that when
Bendik was informed of DLJ's decision to terminate his employment, he
unequivocally stated to DLJ his belief that his termination was because
of his age and physical disability. DLJ was placed on notice of its
unlawful conduct at the January 12, 2000 meeting between Bendik and his
attorney, and Daddino and [George C. Whipple III, DLJ"s Vice President
and Counsel ("Whipple")], and DLJ was advised of its unlawful conduct in
writing by Bendik's attorney by letter dated April 20, 2000." "Informal
complaints" such as that alleged to have been made by plaintiff have been
found to constitute protected activity for the purposes of a retaliation
claim. See Coffey v. Wakefield, 2002 WL 1610913 at *4 (S.D.N.Y.
2002) (internal quotations omitted).
As to the second element, the complaint alleges that subsequent to
Bendik's advising DLJ, beginning in or about December, 1999 that "he
believed DLJ was attempting to terminate his employment because of his
age and physical disabilities, and that DLJ's action were [sic]
discriminatory and unlawful," "in retaliation for Bendik's refusal to
accede to DLJ's efforts to force Bendik to resign from DLJ, DLJ engaged
in hosfile acts toward Bendik and otherwise created a hosfile work
environment for Bendik in an effort to force Bendik to resign from DLJ.
Such actions included making baseless allegations that Bendik's work
performance was poor as a pretext to cover-up DLJ's discriminatory and
retaliatory motives; stripping Bendik of his work duties and
responsibilities; arbitrarily refusing to pay Bendik a 1999 compensation
bonus; terminating Bendik's employment in May, 2000; and thereafter
engaging in other acts of retaliation against Bendik." Plaintiff has
subsequently supplemented the list of allegedly retaliatory actions by
claiming that "CSFB refused and continues to refuse to pay monies which
are contractually due and owing to Bendik, and in July, 2002 unlawfully
`purchased' and terminated Bendik's interests in two investments plans
and forfeited his interests in those plans." Pl.'s Memo in Opp'n to D's
Mots at 42.
As to the third element of the prima facie case, plaintiff states that
he "will prove at trial by the statements of a former DLJ employee that
CSFB's refusal to pay Bendik the monies due to him for which he
instituted the action now pending before Judge Jones is to deprive Bendik
of funds to finance this litigation and to deter Bendik from pursuing
further claims against CSFB."
We find that plaintiff has failed to make a showing sufficient to
establish the third element of a prima facie case of retaliation, namely
a causal connection between the protected activity and the adverse
employment action. Even if the proffer of "statements of a former DLJ
employee" were admissible, to allege a connection between alleged adverse
employment action and plaintiff's current and future claims, is not the
same thing as alleging a connection between protected activity and
alleged adverse employment action.
We therefore grant defendant's motion for summary judgment as to counts
MOTION TO DISMISS
1. Applicable Law
On a motion to dismiss, a court must read the complaint generously, and
draw all inferences in favor of the pleader. Cosmos v. Hassett,
886 F.2d 8, 11 (2d Cir. 1989). The court must accept as true the material
facts alleged in the complaint. Grandon v. Merrill Lynch,
147 F.3d 184, 188 (2d Cir. 1998). The court must not dismiss the action
unless "`it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.'"
Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957));
Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In deciding such
a motion, the "issue is not whether a plaintiff will ultimately prevail,
but whether the claimant is entitled to offer evidence to support the
claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996)
(internal quotations omitted). The court must limit itself to a
consideration of the facts alleged on the face of the complaint, and to
any documents attached [to the complaint] as exhibits or incorporated in
it by reference. Cosmos, 886 F.2d at 13. Even where a document
is not incorporated by reference, the court may nevertheless consider it
where the complaint "relies heavily upon its terms and effect," which
renders the document "integral" to the complaint. Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). If, as in the
present case, extraneous material is presented by the parties, the court
must exclude it from consideration. See Fed.R.Civ.P.
2. ADEA & ADA Claims Counts One, Two, Seven and Eight
The court deems it appropriate to convert defendant's motion to dismiss
these counts to a motion for summary judgment. Rule 12(b) of the Federal
Rules of Civil Procedure mandates that on a Rule 12(b)(6) motion where,
as here, matters outside the pleading are presented to and not excluded
by the court, "the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b). Under such
circumstances, "all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56."
Id. "Compliance with these requirements, however, is not an end
in itself." G. & A. Books, Inc. v. Stern, 770 F.2d 288, 295
(2d Cir. 1985). The conversion of a Rule 12(b)(6) motion into one for
summary judgment is "governed by principles of substance rather than
form," and the "essential inquiry" is whether plaintiff "should
reasonably have recognized the possibility that the motion might be
converted into one for summary judgment or was taken by surprise and
deprived of a reasonable opportunity to meet facts outside the
pleadings." Id. (noting that "[r]esolution of this issue will
necessary depend largely on the facts and circumstances of each case.").
In the circumstances of this case, we find that plaintiff should
reasonably have recognized the possibility that this motion might be
converted to one for summary judgment. In their briefing of the motion to
dismiss, both parties made repeated reference to materials that were
neither exhibits to, nor incorporated by, the pleadings. These materials
included a declaration by plaintiff's counsel, and
various attached exhibits, Whipple's affidavit and some of its
exhibits, and Daddino's affidavit. Given that the parties have made these
references to material outside the pleadings, and that our grounds for
granting summary judgment on these counts are substantially similar to
those for granting defendant's summary judgment motion on counts three
through six and nine through twelve, we see no danger that plaintiff will
be taken by surprise.
Pursuant to the analysis contained in our resolution of the motion to
dismiss, we find that the filing of plaintiff's EEOC charge on March 14,
2001, occurred more than 300 days after the date by which plaintiff knew
or had reason to know of his termination, and was therefore untimely. For
the reasons given in our resolution of defendant's motion for summary
judgment on plaintiff's state and city claims of discrimination, we find
no reason to excuse the untimeliness of plaintiff's EEOC filing. We
therefore grant summary judgment to defendant as to counts one and two.
In addition, we grant summary judgment to defendant on plaintiff's
federal retaliation claims (counts seven and eight) for the reasons
stated in our resolution of the state and city retaliation claims.
3. Breach of Contract Claim Count Thirteen
The complaint alleges that "[i]n order to induce Bendik to accept the
position of Senior Vice-President and Chief Accounting Officer of DLJ
and, as such, to be a direct report to Daddino [sic], Daddino stated and
represented to Bendik, and agreed with Bendik, inter alia, that
Bendik would receive the equivalent profit-sharing benefits, pension
benefits and other benefits as paid to the other members of DLJ's senior
financial administrative managers. Daddino also assured Bendik that so
long as Bendik performed his work duties and responsibilities in a
satisfactory manner, Bendik would be assured of retaining his position as
DLJ's Senior Vice-President and Chief Accounting Officer until Bendik
either voluntarily resigned or retired from DLJ. Based upon Daddino's
statements, representations and promises, Bendik accepted the position of
DLJ's Senior Vice-President and Chief Accounting Officer." It further
alleges that "after z1983 and continuing through December, 1999, Daddino
continued to state and represent to Bendik, both orally and in writing,
inter alia, that Bendik would receive the equivalent
profit-sharing benefits, pension benefits and other benefits as paid to
all members of DLJ's senior financial administrative managers in order to
induce Bendik to continue his employment with DLJ. Based upon Daddino's
statements, representations and promises, Bendik continued his employment
with DLJ." The complaint further alleges that "Based upon the statements,
representations and promises made to Bendik by Daddino, DLJ was
contractually obligated to pay Bendik the equivalent profit-sharing
benefits, pension benefits and other benefits as paid to all members of
DLJ's senior financial administrative managers beginning from 1983," and
that "DLJ failed and refused to make such payments to Bendik, despite due
demand thereof by Bendik, and by reason thereof, DLJ breached its
contractual obligations to Bendik."
The complaint alleges that "[a]t all times during the course of his
employment, Bendik performed his work duties and responsibilities in an
excellent manner and received very good performance reviews," and that he
"met or exceeded all expectations for his job performance and was never
criticized or given a negative review for his work."
Defendant argues that "[b]ecause plaintiff did not have (and does not
plead) contract for employment for a fixed duration, he was an
employee-at-will, and as a matter of settled New York law cannot maintain
a breach of contract action based on his termination or recover damages
allegedly flowing from his termination." In addition, defendant argues
that plaintiff's benefit plan" claims are preempted by ERISA.
We acknowledge that ERISA and New York contract law act as potential
limits on the usefulness of plaintiff's contract claim. However, we are
not able to conclude, from a review of the complaint and its exhibits,
that "`it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief'"
Cohen v. Koenig, 25 F.3d at 1172 (quoting Conley, 355
U.S. at 45-46, 78 S.Ct. at 102 (1957)). We therefore deny defendant's
motion to dismiss this count.
For the foregoing reasons, summary judgment is granted to defendant on
counts one through twelve; defendant's motion to dismiss is denied with
respect to count thirteen. Since the case has been referred to Magistrate
Judge Fox for general pretrial case management, the pretrial conference
scheduled for April 21, 2004, is hereby canceled.
© 1992-2004 VersusLaw Inc.