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BENDIK v. CREDIT SUISSE FIRST BOSTON

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 contract).

 I. BACKGROUND

 A. Facts

  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 Page 2 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 $1,500,000.

  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 formally terminated.

  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 ESRP III."
  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." Page 3

  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 the following:

"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 effect."

  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.

 II. DISCUSSION

 LAW RELATING TO PLAINTIFF'S DISCRIMINATION CLAIMS

 1. ADEA

  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 burden Page 4 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 (2000).

  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.

 2. ADA

  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) Page 5 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.).

 3. RETALIATION

  In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; [3] 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. 1995)).

  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 Page 6 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 violation exception.").

  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 Page 7

  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 Cir. 1999).

 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 Page 8 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 Page 9 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 Page 10 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. Page 11 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 nine through Page 12 twelve.

 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 Page 13 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." Page 14

  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.

 III. CONCLUSION

  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.

  SO ORDERED. Page 1

20040401

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