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June 22, 1982

Floreine J. COLLINS, Plaintiff,
MANUFACTURERS HANOVER TRUST COMPANY and Manufacturers Hanover Trust Company Retirement Plan, Defendants

The opinion of the court was delivered by: HAIGHT


Plaintiff Floreine Collins brings this action to redress alleged discrimination in her employment and pension benefits because of her age and sex. The complaint asserts causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"); the Equal Pay Act, 29 U.S.C. § 206(d)(1) ("EPA"); the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"); the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("Human Rights Law"); and the Administrative Code of the City of New York, § B1-7.0 et seq. ("Administrative Code"). The case is presently before the Court on defendants' motion pursuant to F.R.Civ.P. 12(b)(1), (6) to dismiss the complaint in whole or in part for lack of subject matter jurisdiction and for failure to state a claim.


 The complaint sets forth the following facts, which at this stage of the proceedings are deemed to be true.

 Plaintiff, a woman, was first employed by defendant Manufacturers Hanover Trust Co. ("the bank") in 1958, when she was forty-four years of age, and remained employed by the bank in a variety of positions through the filing of the complaint.

 In 1975, plaintiff became a First Level Supervisor, a position for which there was no job description. Accordingly, plaintiff, her department head, and his assistant prepared such a description, classifying the position as a "Grade 14" quasi-managerial one with a minimum salary of $ 268 per week. Despite this agreed-upon job description, plaintiff was made a Grade 13 employee at a lower salary of $ 230 per week. Her department head explained, and it was later confirmed to plaintiff, that the lower designation and salary were necessary "to maintain a respectable, albeit artificial, differential between her salary and that of her closest male counterpart." Complaint P 14. Moreover, plaintiff's salary was less than that paid to a male employee in her department who held a Grade 12, nonmanagerial job.

 In 1976, a male employee, Michael Stevensen, who had previously been plaintiff's subordinate, was promoted to a second, newly created, First Level Supervisor position. While plaintiff was more experienced than Stevensen, she was not accorded the same opportunities or working conditions as Stevensen, nor, discounting for seniority, did she receive the same salary as Stevensen.

 In 1977, the bank reclassified the position of First Level Supervisor to Grade 14, and plaintiff during her performance review was informed by her supervisors that they expected her to advance two more job grades. Nevertheless, although Stevensen was promoted to a position which laid the groundwork for a promotion to an officer, a bank vice-president advised plaintiff that "she neither could nor would" become an officer. Complaint P 21. Instead, plaintiff was placed in a newly created, non-career path position.

 In 1978, in contravention of the bank's preferred policy of promoting from within, the bank hired one John Audette, who was in his 30s, as manager of plaintiff's department. Plaintiff was 64 at the time. Audette's job duties were substantially similar to those previously performed by plaintiff, and the work performed by each was of comparable value to the bank. Nevertheless, while plaintiff remained a First Level Supervisor, Audette enjoyed the title and perquisites of Manager. These included a salary $ 140 greater than that paid plaintiff, an increased staff and full-time assistant, and promotional opportunities which were in fact realized. In 1979, the bank removed Audette and restored plaintiff to her former duties. She did not, however, receive an increase in salary, a change in title, or other perquisites of managerial status.

 In 1980, when plaintiff was 65, she was promoted to an officer position.

 On December 14, 1978, plaintiff had filed a complaint with the New York City Commission on Human Rights ("NYCCHR" or the "Commission"), charging the bank and one of its assistant vice-presidents with discrimination in promotion due to plaintiff's sex and age. In the complaint, which was on a pre-printed form, plaintiff also asserted a Title VII violation and authorized the Commission "to accept this verified complaint on behalf of the Equal Employment Opportunity Commission ("EEOC"), subject to the statutory limitations contained in Title VII." See NYCCHR Complaint at 2, Exhibit A to defendants' Memorandum of Law. On October 5, 1979, plaintiff amended her NYCCHR complaint to expand its scope. Approximately one month later, on November 26, 1979, plaintiff began actively to press her claims before the EEOC, ostensibly because the bank refused to participate in conciliation proceedings sponsored by the Commission. The following day, plaintiff, who was not represented by counsel at the time, wrote the Commission to request that it waive jurisdiction in favor of the EEOC. The letter states in pertinent part:

"I would appreciate a waiver from the Human Rights Commission releasing their jurisdiction of my complaint of discrimination against Manufacturers Hanover Trust Co. and ask that the Equal Employment Opportunity Commission to now have jurisdiction over my complaint.
"I am not in any way withdrawing my complaint, it will continue under the Equal Employment Opportunity Commission." Exhibit B to defendants' Memorandum of Law.

 In response thereto, on November 30, 1979, the Commission issued a Confirmation of Withdrawal, declaring plaintiff's case closed on the ground that "(t)he complaint has been withdrawn by the complainant." Id. The EEOC issued plaintiff a notice of right to sue on December 22, 1980, and on March 3, 1981, within 90 days thereof, plaintiff filed this suit.

 On the instant motion to dismiss, defendants advance a number of claims. With respect to plaintiff's claims under Title VII and the ADEA, defendants' attack is two-fold. First, they allege that by withdrawing her complaint before the NYCCHR, plaintiff made that proceeding a nullity and thus did not satisfy the deferral requirements found in both statutes. Second, they contend that the requisite administrative charges were not filed with the EEOC in a timely fashion, and that the allegations contained therein were substantially narrower than those asserted in the instant complaint. With respect to plaintiff's claims under the ADEA and the EPA, defendants assert that the action is time-barred. Defendants attack the ERISA claim based on plaintiff's failure to exhaust the internal remedies of the pension plan at issue, and further assert that defendant Manufacturers Hanover Trust Company Retirement Plan (the "MHT Plan") should be dropped as a party. With respect to plaintiff's pendent claims, defendants assert that those brought under the Human Rights Law are barred either by the statute of limitations or by plaintiff's election of remedies, and that those asserted under the Administrative Code are precluded either by plaintiff's failure to obtain a final order from the NYCCHR or by plaintiff's election of remedies. Finally, defendants move to strike plaintiff's prayer for relief, insofar as it seeks compensatory damages under the ADEA. *fn1"

 I address these arguments in turn.

 Deferral Under Title VII and ...

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