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LO RE v. CHASE MANHATTAN CORP.

March 25, 1977

IRENE S. LO RE, BARBARA SHANE, EILEEN D. ROBBINS, ELIZABETH N. MESSECA, JENNY GREEN LEE, KATHERINE SCHWERING, JO-ANN M. ORDANO, S. MARILYN STEPHENS-SOLOMON, JEAN W. FOSTER and EMILIE BRADY, on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
THE CHASE MANHATTAN CORPORATION, THE CHASE MANHATTAN BANK, N.A., DAVID ROCKEFELLER, as Chairman of the Board of Directors, WILLARD C. BUTCHER, as President, GEORGE A. R ROEDER, JR., as Vice-Chairman, CHARLES F. BARBER, JAMES H. BINGER, JOHN T. CONNOR, J. RICHARDSON DILWORTH, COY G. EKLUND, JAMES L. FERGUSON, RICHARD M. FURLAND, PATRICIA ROBERTS HARRIS, THEODORE M. HESBURGH, C.S.C., WILLIAM R. HEWLETT, J. K. JAMIESON, RALPH LAZARUS, ROBERT D. LILLEY, JOHN MACOMBER, JEREMIAH MILBANK, CHARLES F. MYERS, JR., EDMUND T. PRATT, JR., J. STANFORD SMITH, and JOHN E. SWEARINGEN, as Directors, of THE CHASE MANHATTAN CORPORATION and THE CHASE MANHATTAN BANK, N.A., JOHN H. LOUDON, as Director of THE CHASE MANHATTAN CORPORATION, MICHAEL E. CARLSON, LEONOR F. LOREE, II, and RICHARD R. SHINN, as Directors, and LUKE P. CARBONE, as Second Vice-President, of THE CHASE MANHATTAN BANK, N.A., Defendants



The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

 KEVIN THOMAS DUFFY, D.J.

 This is an action by several women who are, were, or have sought to become employees of defendant Chase Manhattan Corporation (hereinafter "CMC") for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs alleged that CMC has carried on a wide-ranging policy of discrimination aimed at preventing women from achieving managerial, professional, or official positions with defendants and that this policy has been implemented by CMC's numerous subsidiaries and by particular officers of CMC and its primary subsidiary, Chase Manhattan Bank (hereinafter "CMB"). *fn1" Thus, in addition to their individual claims, plaintiffs seek class certification, alleging that defendants maintain a pattern of sex discrimination, which can be summarized as follows: 1) defendants limit females to lowerpaying office and clerical work by discriminatory recruiting and interviewing policies; 2) defendants hire females into sex-segregated jobs and discourage and prevent women from applying for more responsible positions; 3) defendants relegate women to supportive staff positions while assigning males the more responsible jobs involving lending and management; 4) defendants hire women into positions for which they are overqualified and either refuse to promote them to positions for which they are qualified or promote qualified women less rapidly than similarly situated men; 5) defendants discriminate against qualified women in training programs; 6) defendants discriminate along sex lines in the area of pay and fringe benefits; and, 7) defendants harass and retaliate against female employees who object to these discriminatory practices.

 Defendants have moved to dismiss the complaint on three grounds: first, that plaintiffs evaded and frustrated consideration and processing of their charges by the New York State Division of Human Rights (hereinafter the "State Division") and by the Equal Employment Opportunity Commission ("EEOC"); second, that as regards plaintiff Foster, she has not received a "notice-of-right-to-sue" from the EEOC; and, third, that insofar as the complaint alleges that defendants refused to employ plaintiff Lo Re on or about January 11, 1973, such charges were not timely filed.

 Plaintiffs have filed a cross-motion seeking class certification under Fed.R.Civ.P. 23(b)(2) on behalf of all females who are presently employed, have been employed, have sought employment, or who may subsequently seek employment with the corporate defendants. Defendants oppose this motion on the following grounds: (1) plaintiffs have failed to satisfy Fed.R.Civ.P. 23(a)(2) and (3), which require that there be question of law or fact common to the class and that the claims of the named representatives be typical of the class; (2) defendants have not acted on grounds generally applicable to the class within the meaning of Rule 23(b)(2). In the alternative, defendants seek to limit the class action to claims seeking class-wide declaratory and injunctive relief and to limit the class to individuals who have or may suffer from discrimination regarding official, managerial, or professional positions. Further, defendants seek to exclude as time-barred claims that arose more than 180 days prior to the filing of EEOC charges by the class representatives. See 42 U.S.C. § 2000e-5(e).

 For the reasons explained below, I must deny defendants' motion to dismiss, and certify a class consisting of all females who are presently employed, have been employed, have sought employment, or who may subsequently seek employment with the corporate defendants in official, managerial, and/or professional positions *fn2" and who have been, continue to be, or would be adversely affected by the practices alleged. Further, the cut-off date for statute of limitations purposes shall be 300 days prior to August 7, 1973, the date upon which the first of the named representative-plaintiffs' charges were filed with the EEOC.

 I will first consider defendants' motion to dismiss. At the outset, it is necessary to summarize the background of the plaintiffs' charges. Plaintiffs claim that Irene Lo Re was invited by CMB on or about January 5, 1973, to a job interview by means of a letter that erroneously addressed her as a male. On January 11, 1973, Lo Re received a letter addressed to her as "Ms.," which advised her that there were no job openings. Following complaints by Lo Re that the letters evidenced sex discrimination, Lo Re took part in what are alleged to be "pretextual" job interviews. The complaint alleges that in April, 1973, two confidential charges *fn3" were filed with the EEOC. The first charge alleged that the complainant's employment application with CMB was rejected due to her sex. The second charge alleged that on March 28, 1973, CMB refused to employ the complainant in retaliation for her protests of sex discrimination. Both charges sought relief on behalf of the complainant and all other persons similarly situated. *fn4" These charges were referred by the EEOC to the State Division on August 13, 1973. The EEOC subsequently investigated the charges, made a finding of probable cause, and attempted to bring about a settlement. These attempts were unsuccessful and terminated sometime late in 1975. Defendants allege that this was due to the fact that Lo Re made broad demands aimed at precluding any reasonable settlement. Defendants do not contest that at the time the suit was filed on January 13, 1976, plaintiff Lo Re had received the statutorily required "right-to-sue notice." See 42 U.S.C. § 2000e-5(f)(1).

 The complaint alleges that plaintiff Shane was employed as a personnel counselor employed by CMB, that she was denied any opportunity for promotion and was passed over in favor of less qualified males, that less qualified males performing the same work received more pay than she, and that she was harassed and fired because of her opposition to defendants' discriminatory policies. On February 27, 1975, Shane filed a complaint with the EEOC alleging that due to her sex and religious beliefs she was being discriminated against in the terms and conditions of employment, that she had been harassed by superiors, and had been passed over for promotion by less qualified males. *fn5" A similar complaint was filed with the State Division on March 6, 1975. It appears that shortly thereafter, Shane's counsel requested the State Division to stay investigation pending the preparation of an amended complaint. The amended complaint which, according to defendants' affidavit was filed with the State Division on or about April 1, 1975, broadened the original complaint and was brought in the form of a class action proceeding. On May 30, 1975, pursuant to Shane's request, the State Division waived jurisdiction of the amended complaint to the EEOC. On October 30, 1975, Shane, who was now represented by counsel for the plaintiffs in this case, Edith Vladeck, requested that her claim be processed along with those of several other plaintiffs in this case. Shane requested a right-to-sue notice on November 6, 1975. The complaint alleges, and defendants do not contest, that Shane received a right-to-sue notice prior to the initiation of this suit.

 On August 8, 1975, seven confidential charges of discrimination against CMC were filed with the EEOC on behalf of a then unknown number of aggrieved persons; the charges alleged a pattern of discrimination essentially the same as earlier outlined in the summary of the plaintiffs' complaint and were filed on behalf of the aggrieved persons and all similarly situated individuals. On August 8, 1975, pursuant to the request of counsel, which was endorsed by the EEOC District Director, the State Division waived jurisdiction of the charges to the EEOC. On August 12, 1975, the EEOC requested counsel, Edith Vladeck, to submit affidavit forms that would identify the aggrieved individuals. However, the identities of the "aggrieved persons" -- plaintiffs Lee, Messeca, Ordano, Robbins, Schwering, and Stephens-Solomon -- apparently were not revealed to the EEOC until sometime in December 1975. *fn6" On January 13, 1976, these plaintiffs joined in the present suit; by letter dated February 3, 1976, plaintiffs' counsel informed the EEOC that while she would like to cooperate in any way possible with the EEOC, she was not clear what purpose further investigation by the EEOC would serve, as suit had been filed in the district court.

 As regards plaintiff Brady, the complaint alleges that she was denied opportunity for promotion and that although she performed the functions of an assistant manager, was denied the salary or title of such position; the complaint further alleges that Brady was terminated in retaliation for her protests of discrimination. Documents submitted by the defendants indicate that Brady filed a complaint with the State Division on October 7, 1975, which resulted in a finding of no probable cause on February 9, 1976; the EEOC appears to have relied on this finding in its April 5, 1976 determination of no probable cause. *fn7"

 Finally, the complaint charges that plaintiff Foster has been passed over for a position as a bank officer by lesser qualified males and has been transferred into a lower graded position in retaliation for her protests of discrimination. According to plaintiffs' affidavit, Foster filed charges with the EEOC on January 2, 1976 and the State Division waived jurisdiction on January 15. *fn8"

 Defendants Motion to Dismiss

 Defendants' primary claim is that plaintiffs have engaged in a course of conduct designed to prevent the administrative process from resolving the issues raised by the plaintiffs. Further, defendants contend that Congress intended state agencies and the EEOC to play a primary role in the resolution of disputes under Title VII and that plaintiffs who have deliberately sought to evade or obstruct the administrative process should not be permitted to seek relief in federal court. The only direct support for this proposition is found in Budreck v. Crocker National Bank, 407 F. Supp. 635, 12 FEP Cases 594 (N.D.Cal. 1976). See also Scott v. University of Delaware, 385 F. Supp. 937, 943 (D.Delaware 1974) (dicta). *fn9" However, assuming arguendo that in a proper case a court should find jurisdiction lacking where a plaintiff who has otherwise met the jurisdictional requirements of Title VII actively seeks to evade or obstruct the administrative processes, this is not such a case.

 At the outset, it is clear that in order to bring suit under Title VII a plaintiff must first file a timely charge with the EEOC and receive a right-to-sue notice. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Weise v. Syracuse University, 522 F.2d 397, 411-12 (2d Cir. 1975). It is equally clear that prior to the institution of this suit these jurisdictional requirements were met by plaintiffs Lo Re and Shane. Further, although plaintiff Brady did not receive a right-to-sue notice until after she filed suit, administrative proceedings continued and ultimately ...


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