Opinion
No. 00 Civ. 0738 (JSM).
December 15, 2000.
Martin D. Edel, Miller Wrubel P.C., New York, NY., For Plaintiff.
Bettina B. Plevan, Proskauer Rose LLP., New York, NY., For Defendants.
MEMORANDUM OPINION AND ORDER
Stanley Welland ("Plaintiff"), a former executive of Citicorp Global Technology, Inc., has asserted three causes of action against his former employer and various related persons and entities (collectively "Defendants"): 1) breach of contract; 2) age discrimination; and 3) violation of ERISA. Defendants move to dismiss the second and third causes of action and to dismiss certain of the items claimed as damages from the breach of contract claim. Alternatively, Defendants seek summary judgment as to these matters. The motion with respect to the age discrimination claim is denied without prejudice to the Defendants' right to renew the motion for summary judgment on a proper factual record. The motion to dismiss the ERISA claim is granted without prejudice to the right to replead a violation of § 510 of ERISA, 29 U.S.C. § 1140.
Plaintiff, who was fifty-three years old at the time that he was hired and fifty-six when he was terminated, supports his claim of discrimination by alleging that he was replaced by a younger employee. Defendants have submitted evidence that the person who replaced Plaintiff was fifty-two. While the Defendants have cited a number of cases in which small disparities in age were found not to justify an inference of age discrimination, those case were decided either after trial or after the defendant had offered evidence of a legitimate nondiscriminatory reason for the employee's termination. Defendants' brief states that Plaintiff was fired for cause because he accepted lavish entertainment from vendors, but Defendants have not provided affidavits or a Rule 56.1 statement supporting that claim. Although the Court has little doubt that it would grant summary judgment, even at this early stage in the litigation, if Defendants had offered proof of this claim, as a matter of pleading Plaintiff has established the "minimal" prima facie case. See James v. New York Racing Assoc., No. 00-7040, 2000 WL 1752908, at *3 (2d Cir. Nov. 29, 2000).
With respect to the ERISA claim, Plaintiff's counsel conceded at oral argument that, if he were simply asserting a claim for benefits under ERISA, his claim would have to be dismissed because of a failure to exhaust administrative remedies. Counsel stated, however, that Plaintiff's ERISA claim is limited to a violation of § 510, 29 U.S.C. § 1140, which makes it illegal to terminate an employee "for the purpose of interfering with the attainment of any right to which such participant may become entitled." Defendants agree that the exhaustion requirement does not apply to a § 510 claim, but contend that the complaint does not allege such a violation. The Court agrees that the complaint does not clearly allege that the Defendants' reason for firing Plaintiff was "for the purpose of interfering with the attainment" by Plaintiff of his rights under Defendants' ERISA plans. Because this is a case where the Court has already recognized that there may be an issue under Rule 11, it is appropriate to require Plaintiff to file an amended complaint if he can allege a § 510 violation in good faith.
The remainder of Defendants' arguments do not relate to the causes of action alleged, but rather go to specific items of damages referred to in the complaint. These issues are more appropriately addressed in a motion in limine or a motion for summary judgment made at the close of discovery. Therefore, that part of Defendants' motion is denied without prejudice to the right to renew it at the close of discovery and the application for a stay of the proceedings is denied.
SO ORDERED.