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MALARKEY v. TEXACO

July 23, 1982

Catherine E. MALARKEY, Plaintiff,
v.
TEXACO, INC., Defendant


Haight, District Judge.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 In this action charging defendant with sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); with age discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"); and with conduct tortious under New York State law, defendant moves pursuant to F.R.Civ.P. 12(b)(1), (6) to dismiss the complaint 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 Catherine Malarkey has been employed since 1964 by defendant Texaco, Inc., initially as an executive secretary to a Texaco vice-president, a grade level 12 position. para. 18. In February 1975, plaintiff became an employment supervisor in the Employment Office, a position that plaintiff was told was a grade 12 position, which she believed was a grade 12 position when she accepted the transfer, and which she presently maintains was a grade 12 position (paras. 9, 16, 17, 19). Nevertheless, one year later, on February 1, 1976, in connection with an offer to plaintiff of a new grade 11 job as secretary to R. C. McCay, another Texaco vice-president, plaintiff was told that her prior position as employment supervisor had in fact also been rated a grade 11 (para. 15). Plaintiff accepted the job transfer because she believed what she was told regarding the grade 11 level of the employment supervisor position, since discovered by her to be untrue (para. 17), and because she was assured by four superiors that in a few months, "if McCay were pleased with her work," she would be promoted to a grade 12 (paras. 15, 20). More than one year later, however, plaintiff was told that her secretarial position would not be upgraded (para. 21). And, despite McCay's promise to give plaintiff added responsibilities in order that her position be upgraded, her job remained the same (para. 22).

 In March 1980, McCay was promoted to senior vice-president and became President of Texaco Europe (para. 23). On March 28, McCay told plaintiff that he would no longer need her as a secretary, and told her of two other grade 11 positions available to her (para. 24). While plaintiff has been in a grade 11 clerical position since (para. 25), a younger woman was appointed secretary to McCay (para. 37). Plaintiff has since been denied other executive secretary positions in favor of younger, more attractive women (paras. 29-40).

 On July 22, 1980, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that defendant was discriminating against her on the basis of age and sex. On June 15, 1981, the EEOC, having determined there was no probable cause to believe that defendant was engaged in the conduct complained of, issued plaintiff a notice of right to sue with respect to the sex discrimination claim, and plaintiff filed the instant complaint on August 21, 1981. The complaint alleges that Texaco promotes women in general, and plaintiff in particular, "on the basis of their physical attractiveness" (para. 29); that "younger women are viewed by management as being more attractive than older women" (para. 31); that plaintiff, while equally if not better qualified than younger women at the company, has not fared as well as them in job opportunities (para. 34); and that this policy constitutes age and sex discrimination in violation of Title VII and the ADEA. The complaint contains in addition a pendent state law claim charging defendant with negligent and reckless infliction of emotional and physical distress. Plaintiff prays for a court-ordered promotion, back pay, liquidated damages, $10 million in compensatory damages, and an equal amount in punitive damages.

 On the instant motion to dismiss, defendant advances a number of claims. First, with respect to the allegations in the complaint arising out of the events in February 1976, when plaintiff was allegedly demoted from a grade 12 employment supervisor to a grade 11 secretary, defendant contends that the administrative charges required by both the ADEA and Title VII as preconditions to suit were not filed with the EEOC in a timely fashion. Second, defendant alleges that the complaint fails to state a Title VII claim, as it does not allege discrimination between men and women, but only between younger, attractive women, and older, less attractive women. Third, defendant attacks the state law claim as the type of "spurious" claim rejected by the New York State courts, as barred under New York's Workers' Compensation Law, and as unsuitable for the exercise of pendent jurisdiction. Finally, defendant, assuming arguendo that the ADEA claim is the only valid claim, moves to strike plaintiff's demand for compensatory damages.

 I address these arguments in turn.

 Timeliness

 Pursuant to subsection 7(d) of the ADEA, 29 U.S.C. § 626(d), a claimant in a deferral state such as New York has 300 days from the act complained of within which to file an administrative charge with the EEOC. *fn1" Subsection 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), the counterpart of § 7(d) of the ADEA, also gives a deferral state claimant 300 days to file an administrative charge. Defendant argues that, because the date of plaintiff's alleged demotion on February 1, 1976 is more than 300 days prior to July 22, 1980, the day she claims to have filed her charge with the EEOC, her administrative charges were untimely. Defendant further argues that any discriminatory acts which occurred prior to September 25, 1979, which is 300 days before July 22, 1980, are time-barred. Plaintiff contends, in response, that the February 1976 incident is not an isolated one, but rather is a part of a continuing violation as to which the limitations period has not run.

 Plaintiff's position must be rejected. That is because, while employees who have been demoted continue to feel the effects of that demotion in terms of reduced salary and job opportunities, as plaintiff alleges is the situation at bar, "the critical question is whether any present violation exists." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977) (emphasis in original); accord, Delaware State College v. Ricks, 449 U.S. 250, 257-58, 101 S. Ct. 498, 503, 66 L. Ed. 2d 431 (1980) ("mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.") In the case at bar, the requisite present violation is not, as plaintiff urges, found either in the conclusory assertion, made in para. 4 of the complaint, that the violation is continuing, or in plaintiff's present assertion that she is in fact complaining of a failure to promote. First, notwithstanding the emphasis in plaintiff's brief placed on failure to promote cases, plaintiff's complaint concerning what transpired in February 1976 is clearly that she was demoted. Plaintiff complains in her complaint, for example, that "defendant had deceived her into a demotion" (para. 17); similar statements appear in plaintiff's affidavit in opposition. The most revealing statement, however, comes at para. 36 of the complaint, in which plaintiff alleges that defendant discriminated against her "when she was transferred back to Executive Secretary, and again on or about March 28, 1980, when plaintiff was not promoted to Executive Secretary to McCay . . . and has continued to date by having plaintiff work . . . as an 'Administrative Assistant.'" A fair reading of that statement, in the context of the complaint taken as a whole, indicates that the continuing failure to promote, if one has occurred at all, has taken place since March 1980, not since February 1976, and that what transpired in February 1976, was a "transfer back" -- a demotion.

 Nor is the requisite continuity found either in plaintiff's statement that, at the time she became McCay's secretary, she was told that she "would be "promoted" to a grade 12 in a few months if McCay were pleased with her work," Complaint para. 15, or in her assertion that "McCay assured plaintiff that he would seek to give her additional responsibilities and challenges in order that she could be upgraded to a grade 12." Id. at P 12. Assuming the truth of these allegations, both statements express hopes, rather than the certainty found in the demotion, and both must be viewed in light of the fact that sometime in early 1977, plaintiff was told the position would not be upgraded. Id. P 21. *fn2" Such speculative promises, made after a clear demotion, do not revive the earlier claim. *fn3"

 Because there is a "reasonable ascertainable date on which the act [the demotion] occurred, that is the day on which the statute began to run," notwithstanding that plaintiff may still feel some effects as a result of the prior discriminatory act. Marshall v. American Motors Corp., 475 F. Supp. 875 (E.D.Mich.1979). See generally Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1075 (D.C.Cir.1981). Put somewhat differently, "a plaintiff may not circumvent the limitations period merely by labelling an act a "continuing" violation. Completed acts such as a termination through discharge or resignation, a job transfer, or discontinuance of a particular job assignment, are not acts of a "continuing" nature." Corbin v. Pan American World Airways, 432 F. Supp. 939, 944 (N.D.Cal.1977) (emphasis added).

 While I conclude that those claims arising out of the demotion of plaintiff in 1976 are time-barred, those prior acts "may constitute relevant and probative background evidence." See United Air Lines, supra, 431 U.S. at 558, 97 S. Ct. at 1889. These actions will, therefore, be allowed as evidence whether plaintiff was subsequently discriminated against because of age or sex. Although the evidence concerns time-barred conduct, "'it is relevant, . . . and may be used . . . to illuminate current practices which, viewed in isolation, may not indicate discriminatory motives.'" ...


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