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March 6, 1979


The opinion of the court was delivered by: BRIEANT


Defendant partnership, by motion docketed December 1, 1978, seeks summary judgment in its favor pursuant to Rule 56, F.R.Civ.P., and alternatively, to strike the demand for a jury, in this action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.), and the Civil Rights Act of 1866, as amended (42 U.S.C. § 1981).

 Defendant is a distinguished law firm with a long and honored history at the bar in this City. Its liberal credentials are outstanding, and require no recital by this Court. Plaintiff, a black man, asserts that after some 18 years of employment he was fired on a pretext because of his race. Initially, plaintiff also sued Jane Foley, an Office Manager employed by defendant. Ms. Foley died in July 1978, and the action against her was dismissed by the Court with plaintiff's consent.

 Understandably vexed by this attack on their character and integrity, the partners in the defendant law firm (hereinafter for convenience the "Botein firm") have, following the completion of considerable pre-trial discovery, sought summary judgment terminating this litigation without trial. Defendant law firm asserts that there is no genuine issue as to any material fact, that plaintiff was not discriminated against, by race or any other reason, and it is entitled to judgment as a matter of law. Alternatively, defendant suggests that the Title VII claim, the § 1981 claim and the pendent state law claim pleaded are all time barred.

 Initially plaintiff filed charges with the New York State Division of Human Rights, on July 24, 1976, against the Botein firm and Ms. Foley, claiming that his employment with defendant was terminated because of his race. The New York State Division of Human Rights determined on January 20, 1977 that there was no "probable cause" to believe that defendant engaged in the discriminatory practice complained of, and also held that "the record as a whole doesn't support the complainant's allegations that he was terminated because of his race or color."

 This determination, while not controlling in this case, is admissible in evidence at trial or on this motion under Rule 803(8)(C), F.R.Evid. Plaintiff appealed, and the State Division of Human Rights requested a remand solely because plaintiff claimed he had not seen certain papers filed in the proceeding by defendant. The Appeal Board on March 16, 1978 remanded the proceedings to the State Division for further action, and nothing has been done since then.

 On November 10, 1977, defendant was notified by the Equal Employment Opportunity Commission ("EEOC") that the State complaint filed by Theobald constituted an EEOC charge, and that the EEOC, which was then in possession of the entire State Division file on the matter, intended to conduct its own investigation. On November 23, 1977, the EEOC also concluded that there was no reasonable cause to believe that the allegations of discrimination were true, and it dismissed the charges. This determination although not binding is also entitled to some evidentiary value.

 The background facts are not in dispute. Plaintiff was hired by the predecessor partnership of the Botein firm in April 1961 as a multilith operator and assistant file clerk. In 1964 he became a full-time multilith operator, was relieved of all filing responsibilities, and on occasion was assigned to operate the Xerox machine.

 In early 1969, the Honorable Bernard Botein, a distinguished Justice of the New York Supreme Court who had served on the Appellate Division in the First Judicial Department, retired pursuant to statutory mandate, by reason of his age. He joined the law firm. Plaintiff was offered and accepted the position of chauffeur for Judge Botein, who did not drive his own car. Following Judge Botein's death in 1974, the defendant law firm no longer had need of a chauffeur. To preserve plaintiff's employment, the law firm created a position of "Supervisor of Messengers and Mail." In May 1975, finding that this position, which had been created to avoid terminating Theobald's long standing employment with its office, was unnecessary, defendant transferred plaintiff to the file room, eliminating the position. Theobald conceded on his deposition that he refused supervisory responsibilities in the file room, and also that he was not the only black person employed by the Botein firm.

 During his long employment with the defendant's office, plaintiff received promotions, regular yearly increases in salary, and bonuses. By the time he was terminated he was earning $ 251.00 per week, a substantial salary for a file clerk.

 Theobald conceded at his deposition that apart from his discharge, the firm never discriminated against him. Undisputed testimony shows that long before Ms. Foley was hired by the law firm as an office manager, various partners had complained to the managing partner about the operation of the file room, and about plaintiff's activities in particular. Finding it hard to undergo the transition from having been the valued chauffeur of a prominent retired judge practicing law successfully, plaintiff clearly had difficulty readjusting to the tedious work of law office filing. Testimony shows that he spent excessive amounts of time on the telephone, showed a lack of concern for the work of the file room which he seemed to feel was beneath him, and had a negative attitude toward the firm, loafing on the job and spending an inordinate amount of time in conversation in the hall.

 During most of this time, Theobald was moonlighting. He had a full-time night shift job with the City of New York as a guard. On many days he found it necessary to leave his job with the City to go directly to work at Botein's office, stopping only for breakfast. He worked a night shift for the City varying from 11:00 P.M. to 7:00 A.M., or Midnight to 8:00 A.M. If, as charged, his work in the file room was lackadaisical, it could be attributed to fatigue. His moonlighting, however, was concealed from the Botein firm. During most of this time plaintiff's wife was employed as a registered nurse. When fired by defendant, plaintiff continued his job with the City of New York, shifting to days. He was also actively engaged as a landlord of residential property, while working on both jobs. In this latter activity and other matters, plaintiff received free legal representation from the Botein firm.

 Ms. Foley, who was deposed prior to her death, testified that prior to her employment she had been told that the file room was one of the problems she would encounter on assuming the position of office manager. She received complaints from many attorneys, and testified that following her employment, she examined and observed the operations of the file room. She found that the file room was unstructured, files scattered throughout the office, and no record kept of where they could be found. There was a backlog of loose, unfiled and unsorted papers that had not been placed in the appropriate folders. The proper operation of a file room is essential to the conduct of a law office. The loss of a paper or its misfiling in a file of similar name or number can cause untoward difficulties, and may even result in malpractice claims against attorneys or loss of rights by clients.

 Theobald testified, p. 23, that he had no conversations with any partner in the firm after he had been notified that he had been terminated. He did not complain to any of the partners, nor did he complain to Ms. Kelly or Mr. Williams, who were above him in the chain of command for non-professional employees of the defendant law firm. Plaintiff admitted that he was asked by Ms. Foley whether he would be interested in going to school to become a para-legal, or whether he would be interested in doing any work other than filing. The only other conversations plaintiff had with Ms. Foley between the date of her retention as office manager and the date of his termination were conversations concerning the abuse of the telephone in the file room, the practice of eating in the file room, which plaintiff discontinued at her request, and a request that he have jury duty postponed, which request plaintiff complied with reluctantly and after discussion. Plaintiff did not testify to, nor does he present any evidence of any acrimony whatever with Ms. Foley, or with any of the partners or persons in position of authority at the defendant law firm. He presents no hard evidence from which the inference could be drawn that there was any discrimination against him whatsoever, on racial grounds or otherwise. He said he had only one conversation with Ms. Foley about the backlog of work in the file room, and that Ms. Foley had given him 60 days to clear up the file room. He conceded that he never complained ...

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