Leathem v. Research Foundation of the City University of New York (658 F. Supp. 651, 1987)

KRAM, District Judge.

This action is brought under the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621 et seq., and pendent New York State common law. Plaintiff alleges that defendants discriminated against plaintiff and terminated his employment because of his age, that defendants breached an implied contract of employment, and that defendants wrongfully discharged plaintiff from his employment. The action is presently before the Court on defendants’ motion to dismiss the second and third counts of the complaint, the pendent state claims, for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants’ motion is granted.

FACTS

Plaintiff Theodore G. Leathern (“Leath-ern”) was hired as Administrative Officer by defendant Research Foundation of the City University of New York (the “Foundation”), a non profit educational corporation associated with the City University of New York, in 1969. Leathern did not fill out an employment application or enter into any written employment contract with the Foundation. Leathern was not covered by a collective bargaining agreement; nor was he hired for a specific term, nor under any agreement limiting the Foundation’s right to discharge him for any reason or for no reason at all.

/"'"In 1977, the Foundation published and distributed a memorandum entitled “Inter/nal Guidelines and Procedure Statement” ) (the “Guidelines”), pertaining to central office employees outside the bargaining unit such as plaintiff. As to termination, the Guidelines provide in relevant part:

Prior to termination of an employee for inadequate performance, the employee shall be notified in writing of specific deficiencies, and be given the opportunity to remedy them. The immediate supervision shall indicate specific reasons for dissatisfaction and provide appropriate direction and assistance. If, at the end of two months, deficiencies still exist, the employee may be terminated. If the employee has made a sincere effort to improve performance, consideration shall be given to other jobs for which he or she may be better suited.

In case of neglect of duty, employee shall be provided with a written complaint and be required to immediately eliminate the basis for the complaint. After a second complaint for neglect of duty, no further notice shall be given. Misconduct makes an employee subject to immediate dismissal. Employees who are involuntarily terminated for other than misconduct or neglect of duty will be given prior notice and termination pay as follows....

Decisions regarding involuntary employee termination shall be made only by the Executive Director. The Division chief recommending such action shall inform the employee in advance and the employee shall have an opportunity to discuss the proposed action with both the Division Chief and the Executive Director.

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