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January 16, 1980


The opinion of the court was delivered by: CONNER


Defendant Reader's Digest Association, Inc. ("Reader's Digest") has moved for summary judgment against plaintiff Arthur L. Seymore ("Seymore") in this employment discrimination and breach of contract action. Defendant has further moved to dismiss plaintiff's claim under 42 U.S.C. § 1981 as untimely, and to strike plaintiff's demands for a jury trial and for compensatory and punitive damages. For reasons set forth below, defendant's motion for summary judgment is denied as to plaintiff's claims of discrimination in starting salary, working conditions, rejection of his suggestions and ideas, merit review, bonuses, failure to transfer and termination; granted as to plaintiff's claims of discrimination in training, subject to plaintiff's submission of a further offer of proof on this issue; denied as to plaintiff's claims in quantum meruit ; and granted as to plaintiff's implied contract claim. Defendant's motions to dismiss plaintiff's § 1981 claim on statute of limitations grounds and to strike plaintiff's demand for a jury trial are denied.


 The parties do not dispute the following basic facts underlying plaintiff's action. On November 11, 1974 plaintiff, a Black 1974 graduate of the University of Maryland, began work at Reader's Digest as a trainee in the Advertising Production subdivision of the Production Department at a starting salary of $ 10,000. In Advertising Production, Seymore worked on a series of printing projects, some of which involved use of a densitometer, a machine which measures the intensity of color. Seymore learned how to operate a densitometer, and used the machine to measure the faithfulness of Reader's Digest printed pages to the color originals supplied by advertisers, and to measure the effects of several printing quality experiments with various inks, screens and papers.

 Based on his work with the densitometer and with printers and ink suppliers, and while he was working in Advertising Production, Seymore made several suggestions for improving the Reader's Digest printing process: (1) that the densitometer be used to measure the color to be printed by the various types of Reader's Digest presses in advance of a press run, so that each press could be adjusted to reduce the number of instances of unfaithful reproduction of an advertiser's color original (and thereby avoid the necessity of giving advertisers subsequent free advertising space) *fn1" ; (2) that the ink feed systems used in the presses which print Reader's Digest be changed from manual or semi-automatic ink feed to automatic ink feed; (3) that fewer dots of color per inch be used in printing Reader's Digest color pictures (i. e., a change from use of a 120-line screen (120 dots per inch) to a 100-line screen); and (4) that the inks be reformulated. The first two suggestions were rejected by Seymore's superiors as impractical; the second two changes were subsequently made by Reader's Digest. *fn2"

 In February 1976, Seymore was transferred to the Book Production subdivision of the Production Department. During the period immediately following this transfer, Seymore continued to work on certain of the print experiments in which he had been engaged while still in the Advertising Production subdivision. In his new position, Seymore made a further suggestion, that Reader's Digest use the same-sized film for the illustrations on the dust jackets of Reader's Digest Condensed Books as is used for the pictures on the "box wrap" in which Condensed Books are packed. *fn3"

 In May 1976, Seymore sent a memorandum to the President of Reader's Digest, Kent Rhodes, requesting transfer to another department of the corporation due to the "irrational behavior" of Seymore's former supervisor in Advertising Production, Bert N. Caldwell. In the memo, Seymore further urged adoption of his suggestion on installation of an automatic ink feed system to improve the Reader's Digest printing process. Rhodes had lunch with Seymore to discuss the issues raised in the memorandum. At certain points during the weeks immediately following that luncheon meeting, Seymore met with J. Edward Hall, Personnel Director of Reader's Digest, to discuss Seymore's transfer to another department. These discussions were not fruitful. During that time, Seymore composed a further memorandum concerning the Production Department's failure to adopt an automatic ink-feed system. On June 16, Seymore's employment with Reader's Digest was terminated.

 Following his termination, Seymore brought a complaint before the New York State Division of Human Rights charging employment discrimination. The Division determined that there was no probable cause to believe Reader's Digest had discriminated against Seymore, and that determination was upheld by the State Human Rights Appeal Board.

 Contentions of the Parties

 In this lawsuit, plaintiff asserts that he was treated in a discriminatory manner by Reader's Digest with respect to compensation, terms of employment, and discharge, in violation of § 703 of Title VII, 42 U.S.C. § 2000e-2, and of 42 U.S.C. § 1981. In particular, plaintiff contends that (1) he was hired at a discriminatorily low salary; (2) that while he worked in Advertising Production, he was denied the work space, access to office supplies, personalized notecards and stationery and written job description which white employees in that subdivision received; (3) that he received discriminatorily minimal training; (4) that his suggested improvements were treated summarily or rejected for racially-motivated reasons; (5) that he was denied bonuses for his suggestions and general performance, while white employees received such bonuses; (6) that he failed to receive a merit review and raise following his transfer to Book Production, while white employees received such a review after a transfer; (7) that after his transfer he was required to work double time, in a manner not required of whites; and (8) that he was given inaccurate information as to openings in other departments to which he might be transferred and was terminated, contrary to the reasons given to him at the time, when such transfer opportunities could have been made available to him. Plaintiff supports his allegation of discriminatory treatment by citing instances of alleged racial slurs directed at him by Reader's Digest personnel, in particular, the use of the term "black magic" by Production Department Director Richard Dutton and the use of the term "splitting a niggerhead" by the Manager of the Advertising Production subdivision, Bert N. Caldwell. Plaintiff further points to the low overall percentage of Blacks in the Reader's Digest work force, in comparison to the overall and work-age populations of New York City, and to the fact that Seymore was the only Black employee reported in 1976 in the highest Equal Employment Opportunity Commission employment category, Officers and Managers, at Reader's Digest.

 Plaintiff further contends that he is entitled to damages, first under a quantum meruit theory, in that he relied on Reader's Digest's implied promise to pay him bonuses or suggestion awards; second, on the theory that since Reader's Digest wrongfully terminated plaintiff's employment contract, plaintiff may elect to recover on a quantum meruit basis the difference between the value of services rendered and the salary already received; and third, on an implied or quasi-contract theory that, even if plaintiff and Reader's Digest did not impliedly agree on payment of bonuses for plaintiff's suggestions, Reader's Digest was unjustly enriched by receipt of plaintiff's suggestions and ideas.

 Defendant moves to dismiss plaintiff's Title VII, § 1981 and quantum meruit claims on the ground that plaintiff has failed to set forth, either in affidavits or in supplemental discovery material, specific facts showing that there is a genuine issue for trial, as required by Rule 56(e); that as to certain of his employment discrimination allegations, plaintiff has failed to specify in supporting affidavits or discovery material any factual basis sufficient to state a prima facie case, while as to other allegations, plaintiff has failed to come forward with factual support for a claim that the nondiscriminatory business reasons specified by defendant for defendant's actions were in fact pretexts for racial discrimination. Defendant supports this position as to plaintiff's employment discrimination claims with affidavits stating that (1) Seymore received the highest starting salary of any of the white employees whose positions plaintiff has specified as being comparable to his own except for one man with twenty-two years' printing experience, who received a starting salary of $ 15,000; (2) that Seymore was treated just as any trainee would have been treated with respect to working conditions and (3) training opportunities; (4) that Seymore's ideas were dismissed for various sound business reasons; (5) and (6) that Seymore received the same annual raises as all other Reader's Digest employees, was considered for merit raises and bonuses under the same standards as all employees, and that in fact, in 1976, Seymore received the highest percentage merit raise of any Reader's Digest employee in the Advertising or Book Production subdivisions of the Production Department; (7) that while Seymore was asked to work on certain Advertising Production matters after his transfer to Book Production, this was done for reasons of business efficiency to finish up old matters or to expedite handling of one related matter; that Seymore's supervisors expressed to Seymore their concern that he was devoting too much time to his former projects and too little to his work in Book Production; but that Seymore remained overly engrossed with Advertising Production matters, to the detriment of his work in Book Production; and (8) that with respect to Seymore's termination, when Seymore first applied for transfer to other departments of Reader's Digest, no suitable position was available, while Seymore's actions in issuing his memorandum critical of Dutton, the Production Department Director, were sufficient justification for denying further transfer opportunities to Seymore and for Seymore's termination. Defendant's affidavits further state that Dutton's use of the term "black magic" was neither directed at plaintiff nor racially motivated, having occurred only in a memorandum to the personnel office describing the intricacies of the printing process; while Caldwell used the term "splitting a niggerhead" in the context of explaining to Seymore the meaning of the term which had at one time been commonly used in the printing industry to describe the accurate hitting of a guide mark. With respect to plaintiff's quantum meruit claim, defendant argues that plaintiff has failed to show support for his allegations that the parties agreed by implication that Seymore should receive bonuses for his ideas or that his ideas merited compensation in addition to his salary. With respect to plaintiff's implied or quasi-contract claim, defendant contends that plaintiff has failed to show support for his allegation that defendant was unjustly enriched, since two of Seymore's suggestions were not adopted, the third was not original with Seymore but was suggested to Seymore by Dutton, the fourth was neither original with plaintiff nor specific enough to describe the detailed ongoing changes actually implemented, and the fifth concerned a practice actually implemented at Reader's Digest on three separate occasions prior to the time Seymore made the suggestion.


 In general, in order to prevail on a summary judgment motion, the party making the motion must show (1) that there is no genuine issue of material fact to be tried in the case and (2) that the moving party is entitled to a judgment as a matter of law. F.R.Civ.P. 56(c); see Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (burden on moving party to show absence of any genuine issues of material fact); SEC v. Research Automation, 585 F.2d 31 (2d Cir. 1978) (moving party must show both that no triable issues of fact exist and that it is entitled to judgment as a matter of law; while not necessarily precluded, summary judgment likely to be inappropriate when the issues involve intent, or are otherwise "complex and convoluted"); Egelston v. State Univ. College at Genesco, 535 F.2d 752 (2d Cir. 1976) (finding summary judgment inappropriate in Title VII case, while noting "our concern for efficiency must never be permitted to outweigh our concern for individual rights"); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975) (court must resolve all ambiguities and draw all reasonable inferences in favor of party against whom summary judgment is sought; in contract case, summary judgment improper where contract language susceptible of two constructions). Under Rule 56(e), a party opposing a summary judgment motion supported by affidavit or by material obtained during discovery may not rest on the allegations in his pleadings, but must respond by affidavit or other permissible discovery material setting forth specific facts showing that there is a genuine issue for trial. Rule 56(e), F.R.Civ.P.; see SEC v. Research Automation, supra, 585 F.2d at 33 (not sufficient for party opposing summary judgment motion supported by affidavits or other documents to assert a conclusion without "supplying supporting ...

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