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April 1, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


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).


 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.



 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. ...

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