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dismissing as untimely employee's discrimination claim where employer's failure to give bonus occurred outside 300-day period
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98 Civ. 5278 (RCC)
February 20, 2002
OPINION AND ORDER
Plaintiff Cheryl Griffin ("Griffin") filed this action against her employer, defendant New York City Off-Track Betting Corporation ("OTB"), alleging that OTB denied her a bonus, pay increases and promotions because of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the New York State Human Rights Laws, N Y Exec. Law. § 296, et seq., and the New York City Human Rights Laws, Section 8-107 et seq. OTB moves for summary judgment on the grounds that all but one of the discriminatory acts alleged in the Complaint are time-barred, and that Griffin cannot establish a prima facie case of race discrimination as to the remaining allegation. For the reasons set forth below, OTB's motion is granted in part and denied in part.
I. BACKGROUND
Unless otherwise indicated, the following facts are unchallenged for purposes of this motion. Griffin, an African-American, first obtained employment with OTB as a stenographic secretary in or about September 1979. Def. Rule 56.1 Stmt. ¶¶ 1-2. Griffin was promoted in 1981 to the position of office associate and in 1986 to the position of confidential secretary within the Internal Audit Department of the OTB Finance Division. Id. ¶¶ 3-4. All of the other confidential secretaries in the Finance Division were white. Compl. ¶ 18.
The term "confidential secretary" refers to secretaries who are not members of a union. Id. ¶ 5.
Griffin claims that she suffered several instances of discrimination during her employment as a confidential secretary. First, in or about 1986, Griffin alleges that she failed to receive a $700 bonus for undertaking certain word processing training, although the bonus was awarded to her Caucasian counterparts. Def. Rule 56.1 Stmt. ¶ 12; Compl. ¶¶ 21-23. Griffin also alleges that she was denied promotions in favor of Caucasians secretaries with equal or less experience on three occasions, once in 1989 and twice in 1995. Def. Rule 56.1 Stmt. ¶¶ 13-14; Compl. ¶ 26. According to plaintiff, these promotions involved added job responsibilities and a pay increase. See Transcript of Oral Argument dated September 6, 2001 ("Tr."), at 21. In addition, Griffin claims that in or about 1996 OTB hired a less-experienced Caucasian confidential secretary at a higher salary than that of plaintiff. Def. Rule 56.1 Stmt. ¶ 15; Compl. ¶ 36. Finally, in 1997 OTB allegedly raised the salaries of all Internal Audit Department staff except for plaintiff. Def. Rule 56.1 Stmt. ¶ 16; Compl. ¶ 38.
There was some confusion as to the date of the hiring. The Complaint alleges that it occurred in July of 1997. Compl. ¶ 36. At her deposition, Griffin stated that she believed the proper time frame was 1995. See Def. Rule. 56.1 Stmt. ¶ 15 n. 1. A supplemental declaration submitted by defense counsel indicates that the hiring took place on February 5, 1996. See Supplemental Declaration of Isaac Kaufman dated January 17, 2002 ("Kaufman Supp. Decl."), at ¶ 6.
Griffin claims that she raised her discrimination concerns with senior OTB officials in 1990 and 1995, but that no action was taken to upgrade her salary or position. Compl. ¶¶ 27-31; Declaration of Baimusa Kamara dated February 23, 2001 ("Kamara Decl."), at ¶ 9. Griffin also allegedly complained about pay disparities in 1997 to Doreen Wong, an officer of OTB's Equal Employment Opportunity Department, but again no response was forthcoming. Compl. ¶¶ 34-35; Kamara Decl. ¶ 9. Griffin eventually filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on August 6, 1997. Def. Rule 56.1 Stmt. ¶ 17; Compl. ¶ 3(a). The EEOC issued a right to sue letter on April 27, 1998, and Griffin commenced the instant suit on July 21, 1998. Compl. ¶ 3(b).
II. DISCUSSION
OTB now moves for summary judgment, at the close of discovery, on the basis that all of Griffin's claims save one are time-barred under Title VII. Moreover, OTB argues that the only non-time barred allegation — that Griffin was denied a salary increase in 1997 — must fail of its own merit because Griffin cannot make out a prima facie case of discrimination. Finally, OTB contends that the claims under the New York State and New York City Human Rights Laws must be dismissed for the same reasons.
A. Time-Barred Claims
Title VII "requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action."Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996) (citing 42 U.S.C. § 2000e-5 (e)); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982) (noting that the statutory requirement is analogous to a statute of limitations). Only events occurring within that period are actionable. Van Zant, 80 F.3d at 712.
Because Griffin did not file her EEOC charge until August 6, 1997, any incidents occurring more than 300 days prior to that date i.e. prior to October 10, 1996, do not provide a basis for liability. The bulk of Griffin's suit relates to incidents that occurred well before the cut-off date. Only one allegation falls within the requisite period — Griffin's contention that in 1997 "everyone in the Internal Audit Department except plaintiff received salary increases." Compl. ¶ 38.
The parties appear to agree that the 300-day period, rather than the 180-day period, is applicable here. See Def. Mem. at 3.
Griffin argues that her untimely allegations nonetheless should be deemed actionable under a "continuing violation" theory. Under that doctrine, "a plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations."Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); see also Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993).
The continuing violation exception typically applies where the defendant perpetuates a formal discriminatory practice, such as the repeated use of seniority lists or employment tests. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001). However, a continuing violation also may be found "where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. (citingCornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)). The alleged instances must be sufficiently continuous in time with each other and with the timely act in order to be considered part of a continuing violation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (holding that isolated acts break the continuum of discrimination). Discrete or completed acts, such as failures to receive promotions, generally are not considered to be continuing in nature.Lightfoot, 110 F.3d at 907; see also Crosland v. City of New York, 140 F. Supp.2d 300, 308 (S.D.N.Y. 2001) ("It is well established that transfers, demotions, failures to compensate adequately, and failures to promote are all discrete acts which do not constitute continuing violations.").
Here, the nature and timing of the alleged discriminatory acts — Griffin's failure to receive a bonus in 1986, her failure to obtain promotions (once in 1990 and twice in 1995), and the hiring of a less-experienced secretary at a higher salary in February 1996 — militate against application of the continuing violation doctrine. First, these acts were sufficiently discrete and permanent so as to place Griffin on notice of the alleged discrimination at the time of occurrence. Griffin, however, did not file a charge with the EEOC until August of 1997. Plaintiff has provided no explanation for this delay. To allow Griffin to raise these claims now would render the statute of limitations meaningless. See Govia v. Century 21. Inc., 140 F. Supp.2d 323, 325 (S.D.N.Y. 2001) (declining to apply the continuing violation doctrine where plaintiff was on notice of the repeated failures to promote because it "would subvert the underlying purpose of the time limit, which is to ensure expedition in the filing and handling of claims of discrimination") (internal citations omitted); Nicholas v. Nynex. Inc., 974 F. Supp. 261, 269 (S.D.N.Y. 1997) (declining to invoke "disfavored" continuing violation exception because plaintiffs presumably knew of their failure to receive bonuses and promotions yet "offered no evidence to support the conclusion that a reasonable employee would not have sued earlier").
Griffin complained about unequal treatment to her superiors in 1990 and 1995, but, according to Griffin, no action was taken. See Pl. Mem. at 12; Compl. ¶¶ 27-31. Thus, this is not a situation where plaintiff delayed in filing an EEOC charge because he or she was awaiting the outcome of internal proceedings. Here, approximately two years passed between Griffin's 1995 complaint and her filing with the EEOC.
Moreover, under Second Circuit precedent, the acts are not sufficiently continuous in time with one another or with the timely allegation — a "fatal" deficiency. Quinn, 159 F.3d at 766. In Quinn, the Second Circuit rejected a continuing violation argument because the alleged incidents — several occurring in 1985, two occurring in 1988, one occurring in 1989 and one occurring in 1990 — were sufficiently isolated in time so as to break the asserted continuum of discrimination. Id.; see also Weeks v. New York State (Division of Parole), 273 F.3d 76, 84 (2d Cir. 2001) ("Absent unusual circumstances, a two-year gap [between the timely and untimely allegations] is a discontinuity that defeats use of the continuing violation exception.");Petrosky v. New York State Dept. of Motor Vehicles, 72 F. Supp.2d 39, 50 (N.D.N.Y. 1999) (declining to apply continuing violation doctrine where no more than one or two events were alleged to have occurred in any given year and where there were several time periods ranging to years in length in which no specific discriminatory incident was alleged). There are likewise significant time gaps between the events at issue here, militating against application of the continuing violation exception. Therefore, plaintiff's pre-October 10, 1996 claims must be considered barred by the Title VII statute of limitations.
B. Failure to Obtain a Salary Increase in 1997
1. Summary Judgment Standard
OTB argues that summary judgment should be entered against Griffin as to her one timely allegation, that is, her failure to receive a salary increase in 1997. In order to prevail on a summary judgment motion, the moving party must establish that there are no genuine issues of material fact and that judgment is warranted as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Facts, and all inferences therefrom, must be viewed in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); American Cas. Co. v. Nordic Leasing. Inc., 42 F.3d 725, 728 (2d Cir. 1994). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250.
In discrimination cases, a trial court must be particularly cautious about granting summary judgment where the employer's intent is at issue, because direct proof is often lacking. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). The court, therefore, must look to circumstantial evidence which, if believed, would show discrimination. Id. However, summary judgment may be appropriate where no evidence exists or where only conclusory allegations have been offered to suggest that an employer's motives are improper. Minott v. Port Auth. of New York, 116 F. Supp.2d 513, 518 (S.D.N.Y. 2000).
2. Title VII Framework
Here, OTB contends that plaintiff cannot establish even a prima facie case of discrimination under Title VII arising from her failure to receive the salary increase. Under the burden-shifting analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), Griffin bears the initial burden of showing that: (i) she was a member of a protected class; (ii) she was qualified for the salary increase at issue; (iii) she suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia University, 131 F.3d 305, 311-12 (2d Cir. 1997).
Once the plaintiff meets this burden, the employer must produce evidence that the adverse employment action was taken for a "legitimate, nondiscriminatory reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); McDonnell Douglas, 411 U.S. at 802. The plaintiff then must demonstrate that the proffered reason is simply a pretext for discrimination. McDonnell Douglas, 411 U.S. at 803. While the burden of production shifts throughout the analysis, the burden of proving the employer's discriminatory intent remains with the plaintiff. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
OTB argues that Griffin has put forth no evidence from which to infer discriminatory intent. According to OTB, the 1997 salary adjustments were the result of a departmental reorganization, and plaintiff was one of eight employees — four Caucasians and four African-Americans — who were passed over at that time. Def. Rule 56.1 Stmt. ¶¶ 9-11. OTB thus contends that, given this even split, there is no basis for a reasonable juror to infer racial ammus.
Plaintiff, however, argues that discrimination can be inferred given the prior occasions when she was denied promotions and salary raises in favor of Caucasian secretaries with equal or less experience. See, e.g.,Krieger v. Gold Bond Bldg. Prods., 863 F.2d 1091, 1096-97 (2d Cir. 1988) (noting that discriminatory intent may be proven through evidence of past conduct or incidents). Although these incidents are time-barred and therefore cannot provide an independent basis for liability, they may be utilized as circumstantial evidence of intent. See Fitzgerald, 251 F.3d at 365 ("A statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period.");Govia, 140 F. Supp. 2d at 325 (dismissing certain claims as time-barred but allowing plaintiff to seek discovery regarding those incidents as bearing on the issue of discriminatory intent); Mareno v. Madison Square Garden. L.P., No. 98 Civ. 2719, 2000 WL 1401156, at *2 (S.D.N.Y. Sept. 26, 2000) (noting that "prior behavior, even if outside the limitations period. may be considered in evaluating a decisionmaker's intent at the time of the complained-of conduct").
In addition, although OTB points to the "reorganization" as the reason for the salary adjustments, defendant does not specify why Griffin was denied the increase when the majority of Finance Department employees (28 out of 36) received the raise. At deposition. OTB Senior Vice President Joseph Magnani testified that Griffin did not merit a raise because of her work performance. Pl. Rule 56.1 Stmt. ¶¶ 4-5. However, Griffin points out that her immediate supervisor characterized her work as satisfactory and had recommended that she receive a pay increase. Id.
Taking into account this inconsistency, as well as the past instances in which Griffin allegedly was passed over for promotions and raises in favor of similarly-situated Caucasians, a factual issue exists as to whether OTB's proffered explanation is believable or whether racial discrimination should be inferred. See, e.g., Ramos v. Marriott Int'l. Inc., 134 F. Supp.2d 328, 343 (S.D.N.Y. 2001) ("It is well settled that a plaintiff may establish pretext and thereby successfully oppose summary judgment, by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nondiscriminatory reason for its action.") (internal citations omitted). Because this is a question for the jury, defendant's motion for summary judgment must be denied as to this claim.
C. State Law Claims
OTB argues that Griffin's state law claims must be dismissed on the same basis as the Title VII claims. Def. Mem. at 9. However, unlike the 300-day period under Title VII, the New York State and New York City Human Rights Laws provide for a three-year statute of limitations. N.Y.C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8-502(d); see also Quinn, 159 F.3d at 765 (noting the difference between the Title VII and the New York State statutes of limitations); Van Zant, 80 F.3d at 714 (same). Because Griffin commenced this suit on July 21, 1998, all acts occurring on or after July 21, 1995, would be timely under the state and city discrimination provisions. Therefore, plaintiffs allegations regarding her failure to receive the 1997 pay increase, as well as the 1996 hiring of a less-experienced Caucasian secretary at a higher salary than that of plaintiff, are actionable under those statutes.
Plaintiff also claims that she was passed over for two promotions in 1995 in favor of similarly-situated Caucasian co-workers. There is contradictory evidence as to the timing of these promotions. OTB states that the promotions took effect on July 1, 1995 see Kaufman Supp. Decl. ¶¶ 4-5, while Griffin states that they occurred in August of 1995.See Affidavit of Reena Blinkoff dated September 8, 2001 ("Blinkoff Aff."), at ¶¶ 4-5. With respect to employment discrimination claims, the limitations period generally is measured from the date that the employee learns of the discriminatory conduct. Usala v. Consolidated Edison Co. of N.Y., 141 F. Supp.2d 373, 379 (S.D.N.Y. 2001); see also Cornwell, 23 F.3d at 703 (noting that discrimination claims accrue once the plaintiff "knows or has reason to know of the injury which is the basis of his action") (citations omitted); Fern v. International Bus. Mach. Corp., 204 A.D.2d 907, 908, 612 N.Y.S.2d 492, 493-94 (3d Dep't 1994) (holding that the statute of limitations on a discrimination claim begins to run when the employee learns of the discriminatory act). Therefore, the question as to when Griffin learned of her co-workers' promotions must be resolved by the jury before a final determination can be made as to the applicability of the statute of limitations. See Maslan v. American Airlines, Inc., 885 F. Supp. 90, 93 (S.D.N.Y. 1995) ("Questions of fact that arise in applying a statute of limitations are for the trier of fact.").
III. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment under Title VII is granted with respect to all claims based upon events that occurred prior to October 10, 1996. However, the motion is denied with respect to plaintiffs allegation that she failed to receive a salary increase in 1997 due to racial discrimination. Finally, plaintiff may proceed under the New York State and New York City Human Rights Laws with respect to all claims accruing on or after July 21, 1995.