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March 28, 1980

HOPE FISHER, Plaintiff, against THE FASHION INSTITUTE OF TECHNOLOGY; GLADYS MARCUS, individually and as Associate Dean of the Department of Liberal Arts; FASHION INSTITUTE OF TECHNOLOGY LOCAL 1460 (FASHION INSTITUTE OF TECHNOLOGY CHAPTER) OF THE UNITED FEDERATION OF COLLEGE TEACHERS; LOCAL 3457 UNITED COLLEGE EMPLOYEES; GEORGE LEVINSON, individually and as the Former Chairman of the Grievance Committee of Local 1460 of the United Federation of College Teachers, and as Chairman of the Grievance Committee of Local 3457 of the United College Employees, Defendants.

The opinion of the court was delivered by: SOFAER

This action was brought under several statutes, but plaintiff abandoned before trial any claim for relief other than that based on Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e, et seq. Plaintiff is a black woman, who claims she was refused promotion by or on account of the racially discriminatory acts of defendants. The defendant Fashion Institute of Technology (FIT) is a publicly-supported community college sponsored by the Board of Education of the City of New York, providing specialized education in the field of fashion and design. Gladys Marcus is Dean of FIT's Department of Liberal Arts. FIT Local 3457 (formerly Local 1460) of the United Federation of College Employees is an employee union at FIT (Tr. 358), and George Levinson was Chairman of the Local's Grievance Committee when plaintiff complained to it concerning FIT's denial of a promotion.

The trial in this case commenced on August 7, 1979 and continued through August 10. Decision was reserved, not because the case is close on the merits, but because the action seemed so patently frivolous that defendants' request for counsel fees warranted careful consideration. On the basis of the entire record and the governing law, judgment is hereby rendered for all defendants, and the parties are ordered to submit information necessary to ascertain the amount of fees and costs incurred by defendants that should be charged to plaintiff or her attorney. The following opinion constitutes the findings and conclusions upon which these judgments are based.

I. The Claim of Racial Discrimination

 Plaintiff began working for FIT in 1967, as part of a federally funded High Horizons program. On or about December 7, 1967, she was placed on the FIT payroll as a clerk-typist, because FIT personnel feared the federal program would terminate and she would lose her job. (Tr. 13, 15) Her work as a clerk typist was apparently satisfactory, and she was promoted in or about September 1970 to Department of Secretary, Liberal Arts Division. Plaintiff worked during that period under defendant Gladys Marcus, the Chairperson of Liberal Arts, who undoubtedly was responsible for plaintiff's promotion. (Tr. 20)

 Plaintiff insists that, from 1970 to 1973, she performed her varied duties as Department Secretary with imagination, initiative, and competence. (Tr. 50-51; 53-61) On June 21, 1973, she wrote a memo asking that her job be "reclassified" (and upgraded) to Administrative Secretary. (PX-1) She claimed she was already doing the work of an Administrative Secretary, that she was "dedicated," and that she believed such a classification was available. (Tr. 21-22, 27-28) Furthermore, she stated at trial that, between 1970 and 1973, she "used to see to it that I met with all the chairpersons at least once a month to find out if there were any criticisms or anything they wished I improved on or anything that was lacking and all my reports I got back were very favorable. Most things were very minute." (Tr. 30) Among the chairpersons she met with "monthly" was Gladys Marcus, and plaintiff recalled no "negative comments addressed to the performance" of her duties. (Tr. 31) She also claimed she could recall no oral criticism of her work by Marcus or any other chairperson between June 1973 and December 1974. (Tr. 32) Indeed, plaintiff testified that she could recall no criticisms of her work by chairpersons "through June of 1976," or in fact to the time of trial. (Tr. 33-34, 67-68)

 Plaintiff's testimony must be weighed, first, in the light of a written memorandum to her from Dean Marcus, dated March 26, 1974. (DX A) It begins by informing plaintiff that a decision had been made "not to fill the position of Administrative Secretary at this time," essentially because plaintiff was presently unqualified for the position and to open it "at this time" would deprive plaintiff "of the opportunity to improve your performance." The letter noted a recommendation to add a clerk-typist to the Department's staff, to make for a more efficient operation and to reopen the subject of Administrative Secretary within one year. The memorandum explicitly criticized the level of plaintiff's work, particularly her typing, productivity, lack of follow-through, and misallocation of her time (DX A):

You were considered for the open position of Administrative Secretary. However the present standard and quality of your work does not merit a promotion to the more demanding position of Administrative Secretary.
The general appearance of your work is often not good enough and the accuracy and speed of the typing is not up to a high standard.
The level of productivity is questionable. Too frequently work is not completed in a reasonable length of time. For several years it has been observed that when faculty members need something done with dispatch and accuracy, they turn to the other typist. Perhaps a better organization of the work is necessary.
It was noted that there is not a consistently dependable follow-through of assigned tasks. It should not be necessary for us to inquire whether or not jobs have been thoroughly completed.
For the most part your relationship with the faculty has been cooperative. You have given your time generously to the students, but not always judiciously. As a result the efficiency of your work has been affected.
Finally it wasn't always evident that as a department secretary you made a good division of working time and allocation of responsibilities.
In view of the above the decision is as stated.

 Plaintiff contends, in effect, that this letter is a lie, an after-the-fact concoction, designed to frustrate her well-deserved promotion. She felt "dehumanized" by it, as though she were "nothing," she said, and she demanded that all the chairpersons actually sign the memorandum. (Tr. 130-32) This they all proceeded to do, and ...

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