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TUCK v. MCGRAW-HILL

September 16, 1976

Lynne TUCK, Plaintiff,
v.
McGRAW-HILL, INC., Defendant


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Plaintiff, Lynne Weiser Tuck, formerly a reporter ("senior writer") for defendant McGraw-Hill, Inc.'s publication, Medical World News (" MWN "), is suing defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq., claiming that defendant discriminated against her on the grounds of sex in the application of its "close relative rule" which prevented her transfer from the Washington, D.C. office of MWN to the New York City office of said publication, where her husband, Jay Nelson Tuck ("Tuck") was employed as a "national correspondent."

 Plaintiff's employment with defendant ended on March 14, 1971. On April 7, 1971 plaintiff filed a complaint against defendant with the New York State Division of Human Rights ("State Division"). On July 29, 1971, she filed a charge with the Equal Employment Opportunity Commission ("EEOC"). On June 18, 1973, after a four-day hearing, the Commissioner of the State Division dismissed plaintiff's charge, finding that the termination was not discriminatory on the basis of sex. On April 18, 1974, this determination was upheld by the New York State Human Rights Appeal Board. On April 15, 1974, plaintiff received a notice of right to sue from the EEOC. This action was instituted on July 8, 1974.

 By order dated November 26, 1974, the Court granted summary judgment dismissing plaintiff's first claim on the ground that there was no jurisdiction in this Court under Title VII because the EEOC charge, then alleged to have been filed on March 3, 1972, had not been filed within 300 days of the last allegedly discriminatory act; dismissing plaintiff's second claim asserted under section 1981 of Title 42 of the United States Code because there was no allegation of racial discrimination; and dismissing plaintiff's third claim asserted under the First and Ninth Amendments to the Constitution since there was no allegation of discrimination by the government. Upon plaintiff's presentation of documentation that the EEOC charge was timely filed, judgment dismissing her first claim was vacated by order of this Court filed March 3, 1975.

 The action was tried to the Court without a jury. At the end of the trial, defendant moved to dismiss the complaint, contending that on the facts and the law plaintiff has not shown any right to relief under Title VII. Fed.R.Civ.P. 41(b).

 At trial, plaintiff testified on her own behalf, and plaintiff and defendant each called several witnesses. *fn1"

 THE FACTS

 On the basis of plaintiff's evidence introduced at trial and the stipulations in the parties' pre-trial order, the following appears.

 Defendant, now and at all times relevant to this action, publishes 40 to 50 publications, one of which is MWN, a weekly news magazine for doctors. The editorial and executive board of MWN in 1969 through 1971 consisted of Dale Bauer, publisher; Howard Cohn, executive editor; John Connors (and later Ulys Yates), managing editor; and Dorsey Woodson, Washington, D.C. bureau chief and plaintiff's immediate supervisor.

 Plaintiff, who had been a writer for other magazines, *fn2" was first hired at MWN in July 1969 as a senior writer, and was assigned to the Washington, D.C. bureau. On October 25 or 26, 1970, plaintiff informed her Washington, D.C. bureau chief, Dorsey Woodson, that she desired a transfer to the New York bureau of MWN because she was marrying Tuck, who then was the "national correspondent" for MWN and was employed in the New York bureau. Tuck, who had been a journalist for 20 years prior to commencement of his employment with MWN in 1966, held in 1969 and 1970 the highest ranking position open for a reporter at MWN. Woodson called defendant's corporate headquarters in New York City and was advised that there was a company rule prohibiting the employment of "close relatives" in the same "operating unit", such as the same publication or department (the "Rule"). Specifically, the Rule provides:

 
"A. -- RECRUITMENT, SELECTION, AND PLACEMENT
 
IX. -- EMPLOYMENT OF RELATIVES
 
" WHAT IS THE BASIC POLICY? To permit and encourage the employment of relatives of employees subject to the following conditions: (1) No employee may work under the immediate supervision of a "close relative." (2) Two or more employees who are "close relatives" may not work in ...

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