United States District Court, S.D. New YorkApr 16, 2002
99 Civ. 10146 (LAK) (S.D.N.Y. Apr. 16, 2002)

99 Civ. 10146 (LAK)

April 16, 2002


LEWIS A. KAPLAN, United States District Judge.

In Voels v. State of New York, 180 F. Supp.2d 508 (S.D.N.Y. 2002), familiarity with which is assumed, the Court granted in part and denied in part defendants' motion for summary judgment dismissing the complaint after considering a careful and detailed report and recommendation of Magistrate Judge James C. Francis. The parties subsequently have advised the Court that they are having difficulty preparing the joint pretrial order because they disagree as to whether the Court's ruling limits plaintiff's failure to promote allegation to the failure to promote him in 1988 or, instead, leaves him free to pursue claims of subsequent failures.

The complaint in this case alleges failure to promote, disparate treatment and retaliation. Plaintiff specifically stated in paragraph 5 that, to the best of his recollection, "the alleged discriminatory acts occurred on 3/88 and 10/89." He added in the following paragraph that the defendants still (i.e., as of the date of the filing of the complaint, which was in September 1999) were committing these acts against him. Paragraph 8 set forth in plaintiff's words that the facts of his case were that he was passed over for promotion in March 1988 "because [he is] a male of German national origin and not of Italian national origin." There is nothing in his statement of claim suggesting any failure to promote other than that in March 1988.

Defendants moved for summary judgment dismissing the complaint in or about December 2000. Not surprisingly, their papers focused, insofar as they related to the matter of promotion, on the events of 1988. So too did plaintiff's, see Pl. 56.1 St. ¶¶ 55-111, and the report and recommendation, which made clear Judge Francis' understanding that sole focus of the failure to promote claim, whether viewed in terms of retaliation or disparate treatment, was the failure to promote plaintiff to EDP Systems Auditor I in early 1988. E.g., Report and recommendation, at 4-5, 12-13, 18, 20-24. And while plaintiff objected to the report and recommendation, his objections did not suggest that Judge Francis had erred in confining his analysis to the early 1988 denial of promotion to the EDP Systems Auditor I position. (DI 18) Accordingly, this Court dealt with the failure to promote claim on the basis that this was the only point at issue.

Plaintiff now argues that he was denied promotions on a number of other occasions in 1989, 1990, 1991 and 1992 and that he should be permitted to go forward on those claims. He assigns two bases for this assertion: viz. that (a) his original State Division of Human Rights ("SDHR") Complaint, dated May 24, 1988, which was an exhibit to his complaint in this Court, contained the language "March 1988 and continuing," and (b) his complaint here stated that "the alleged discriminatory acts occurred on: 3/88 and 10/89." Neither of these contentions is meritorious.

To begin with, the language quoted from the SDHR complaint is taken out of context quite egregiously. That complaint charged that plaintiff was denied promotion "[o]n or about March 1988, that plaintiff "[c]onsequently [sic — subsequently?] have been harassed by Patrick McGuiness," and that he had been retaliated against for opposing discriminatory practices. Given the quite specific and unique reference to a denial of promotion in March 1988 and the more general claims of harassment and retaliation, the logical reading of the SDHR complaint is that plaintiff was complaining of a failure to promote in March 1988 and of other discrimination and retaliation. Surely there was no reason to construe it as asserting failures to promote subsequent to March 1988, particularly in view of the fact that it was dated May 24, 1988 — prior to the newly alleged denials of promotion in 1989-92.

Even if the initial SDHR complaint were broad enough to comprehend alleged denials of promotion in the 1989-1992 period, its attachment to the complaint in this action would not have sufficed to inject those issues into the case in view of the specificity of the complaint here. This complaint charges a discriminatory failure to promote only in March 1988. Cpt. ¶ 8. The reference to discriminatory acts in 10/89, when read in the context of the entire complaint, plainly is to plaintiff's claim that he was transferred in October 1989 to a new work location in Queens in retaliation for his having filed the first SDHR complaint. Id. Hence, even if plaintiff had complained of other failures to promote in his first SDHR complaint, the specificity of the complaint in this Court was consistent only with the view that plaintiff here sought relief only with respect to the March 1988 incident.

This is confirmed, though no confirmation is needed, by reference to plaintiff's second SDHR complaint, dated November 22, 1989, which specifically complains of the October 1989 relocation.

In sum, then, the defendants properly have construed the Court's ruling on the motion for summary judgment. The failure to promote claim now before the Court is plaintiff's contention that he was wrongfully denied promotion in March 1988 to the EDP Systems Auditor I position.

The Court of course is mindful of the fact that plaintiff is proceeding pro se and therefore is entitled to a good degree of latitude. But plaintiff is an articulate and obviously very intelligent individual. The record is as clear as clear could be. The attempt to construe the record as embracing other claims of improperly denied promotions is utterly without merit — it is an attempt to amend the complaint to inject entirely new claims more than two years after the commencement of the action and after the defendants, the Magistrate Judge and the undersigned have devoted very substantial efforts to this matter on the premise that the case was confined to the matters initially complained of. In the event plaintiff wishes to seek such an expansion of the case, the appropriate vehicle for doing so is to move for leave to amend, in which context the Court would be free to consider such matters as the length of and reasons for the delay in asserting these new claims and the prejudice, if any, that amendment might cause.

The parties shall file the fully executed pretrial order by April 23, 2002.