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Levine v. Reader's Digest Association

June 16, 2006


The opinion of the court was delivered by: Brieant, J.

Memorandum and Order

Before this Court for decision is Defendant's Motion for Summary Judgment (Doc. 6). Motion for Discovery (Doc. 11) is marked withdrawn and Motion for Leave to Reply (Doc. 19) is granted.

This is an action under the ADEA, 29 U.S.C. § 621 et seq., with supplemental claims arising under New York law.

The following facts are undisputed or assumed true for the motion. Plaintiff, Dr. Dov Levine, Ph.D. is an American Citizen who was hired in 1972, at the age of 27, to work in Switzerland at Das Beste Aus Reader's Digest AG, a Swiss Corporation and a subsidiary of Defendant Reader's Digest Association, Inc. ("RDA"), a Delaware corporation with headquarters in Pleasantville, New York in this district. Plaintiff was terminated on October 2003, allegedly in violation of the ADEA.

Plaintiff contends he was hired initially at the insistence of RDA headquarters, to replace a database system used in Zurich with a more sophisticated system. Between 1972 and 2003, Dr. Levine had supervisors in Zurich and also reported frequently and regularly to RDA Headquarters in Pleasantville, New York. Until the time of his dismissal, and as recently as three months prior to his termination, Plaintiff received outstanding performance reviews, including but not limited to the following:

* "...In the last few weeks and months, you have, within the frame of special projects repeatedly given us huge support. It gives me enjoyment and enrichment to be allowed to work together with you"(translated from German), complaint at ¶ 24.

* "For you performance and as a visible recognition for your commitment in this difficult year, I can announce for you a bonus payment in the amount of Sfr. 5563. Payment will be effected with the August salary. Along with this special compensation, I would like to thank you for the work that you have performed until now and I also connect it with the confidence in your further personal commitment. This is all the more important as we are in a very difficult economic environment and desire to reach the goals that were set for the next fiscal year 04 that is already in progress," (translated from German) Id. at ¶ 25.

On October 29, 2003, Dr. Levine was advised, suddenly, in a letter handed to him, that his employment would be terminated on January 31, 2004, because his "personal limitations within [his] . . . function" were "so seriously impacting" that he was "unable to fully perform within [his] . . . function." The termination letter further states in relevant part, as translated by Dr. Levine (it is unclear as to whether the translation is poor, or whether the original was written poorly):

Despite the fact that you ultimately made an effort to acquire basic system skills, you are far from remotely meeting the requirements placed upon an adequate database management. Unfortunately you are unable to match your database analyses with the marketing needs and your lack of strategical thinking negatively on an market oriented further development. Your understanding of major endeavours, which will really help the company on and the routine, daily requirements in your function and position make work immensely difficult for the customers of your services.

We are not able to accept any longer, that an employee within this income group fulfills his function with outdated work tools and thus very inefficiently.

Based on above mentioned reasons and due to your insufficient communications within the local and the global company we are unable to continue our employee-employer relationship with you... See RDA Exh. A. Dr. Levine contends his discharge was discriminatory (based on his age), as further evidenced by the fact that a 26-year-old was hired soon thereafter to replace him (she was subsequently dismissed). Plaintiff expressed his concerns in an e-mail dated November 11, 2003, sent to his immediate supervisor, with the request that its contents be communicated to RDA Headquarters in Pleasantville. He noted that his dismissal violated the corporate "Code of Conduct" signed annually by employees and e-mailed directly to RDA Headquarters in Pleasantville, and that 150,000 Swiss francs and all pension benefits would be a "proper settlement" to resolve his unfair termination. On November 13, 2003, Dr. Levine received an e-mail from Peter Braun, the Human Resources Manager in the Zurich office, acknowledging receipt of Dr. Levine's e-mail and requesting "patience" because the matter was going to be discussed with Werner Neuzig, a signatory to the October 2003 termination letter, and also manager of the Zurich office. On November 19, 2003--before Plaintiff received any further response--he was told to leave the office.

When Plaintiff arrived at his residence in Zurich, he received a telephone call from Giovanni di Vaio, Director of International Human Resources at RDA's Pleasantville office.

Mr. di Vaio knew about the expulsion that had occurred just a few hours earlier. He claimed to be investigating whether the October '03 termination letter had violated RDA's "Code of Conduct," and Dr. Levine contends that di Vaio led him to believe that he was sympathetic to Levine's discrimination claim. He asked Dr. Levine to send an English translation of the letter to him. Following this conversation, di Vaio advised Dr. Levine's supervisors in Stuttgart and Zurich, and RDA's General Counsel Michael Brizel, that he would send Dr. Levine a letter in which he would say that he looked forward to receiving the translation of the termination letter that Levine promised you were going to send, and that he would promise to look into Levine's case with great attention to verify the discrimination claim. The letter that was eventually sent to Dr. Levine from di Vaio stated in relevant part: "I can promise that I will look into your case with great attention should you provide to me any evidence that supports a claim of discrimination and, should you provide such evidence, I will come back to you as soon as possible." Lev. Dec., Exh. 7.

Dr. Levine contends that he and his attorney, Nathan Lewin, Esq., both sent letters on November 20, 2003 to Mr. di Vaio, and that Atty. Lewin sent a second letter on November 24, all expressing the belief that Mr. di Vaio was engaged in further consideration of Plaintiff's claims, and expressing hope that Reader's Digest would conclude its relationship with Dr. Levine on a harmonious note. On November 26, 2003, RDA's General Counsel Michael Brizel sent a letter to Atty. Lewin replying to the Nov. 20 and 24th letters sent to Mr. di Vaio. The Court understands from the argument that the note from General Counsel Brizel did not suggest that the decision to ...

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