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BARNELL v. PAINE WEBBER JACKSON & CURTIS INC.

January 19, 1984

MARILYN BARNELL, Plaintiff,
v.
PAINE WEBBER JACKSON & CURTIS INCORPORATED, and STEVEN KRAUS, Defendants



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

 SHIRLEY WOHL KRAM, U.S.D.J.

 The above-captioned action came before this Court upon plaintiff's renewed motion for appointment of counsel and upon defendant Paine Webber Jackson & Curtis, Inc.'s motion for a separate trial on the issue of the timeliness of plaintiff's complaint to the Equal Employment Opportunity Commission ("EEOC"). For the reasons stated below, both motions are hereby granted.

 - BACKGROUND -

 Plaintiff was employed by defendant as a stockbroker from November, 1972, until some time in 1979. The exact date that plaintiff was discharged by defendant is in dispute: plaintiff claims she was fired at the earliest on June 6, 1979; defendant claims that she was fired on March 29, 1979.

 On April 17, 1980, plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") alleging that defendant discriminated against her in her employment on the basis of sex and discriminatorily discharged her. She authorized the NYSDHR to accept her complaint on behalf of the EEOC as well. On December 31, 1981, the EEOC issued plaintiff a "right-to-sue" notice, and this litigation ensued.

 On June 29, 1982, defendant moved for summary judgment on the grounds that plaintiff's complaint to the EEOC was untimely. Although this Court found that plaintiff's complaint to the EEOC was not filed within the applicable limitations period, defendant's motion was denied by Memorandum Decision dated May 9, 1983, on the ground that plaintiff's alleged mental incapacity around the time of her discharge may be cause for tolling the limitations period. Defendant now moves to have that issue tried separately.

 On August 13, 1982, plaintiff moved for appointment of counsel. Plaintiff's motion was denied by the May 9 Memorandum Decision without prejudice to her right to renew within forty-five days, on the grounds that plaintiff had made an insufficient showing of her financial inability to afford private counsel and her efforts aimed at securing private representation. Plaintiff has now renewed her motion.

 - DISCUSSION -

 Severance.

 Rule 42(b) of the Federal Rules of Civil Procedure authorizes this Court "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, [to] order a separate trial . . . of any separate issue." As indicated in this Court's May 9 decision, this case is one issue away from a grant of summary judgment for the defendant. Plaintiff did not file a timely charge with the EEOC; however, timely filing, "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). Since plaintiff argued that her time to file should be equitably tolled because of her mental incapacity, summary judgment was inappropriate. Nonetheless, a determination adverse to plaintiff on her equitable tolling argument will make this a proper case for dismissal. Furthermore, plaintiff bears the burden of proof on this issue. See Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982) ("The plaintiff then bears the burden of proving that the conditions precedent [e.g., timely filing], which the defendant has specifically joined in issue, have been satisfied.").

 The preparation for and trial of this issue alone will require far less expenditure of the litigants' and the Court's resources than preparation for and trial of the merits of this claim. Moreover, since the trial of this issue may obviate the need for any further proceedings herein, a significant saving of time and money may follow from a separate trial on this issue. Severance under Rule 42(b) is an appropriate tool with which the Court can expedite resolution of statute of limitations issues. See Braun v. Berenson, 432 F.2d 538 (5th Cir. 1970), Seaboard Terminals Corp. v. Standard Oil Co., 30 F. Supp. 671 (S.D.N.Y. 1939). The Court, therefore, chooses to exercise its discretion and grant defendant's motion for a separate trial on the issue of the timeliness of plaintiff's complaint to the EEOC in the interests of expedition and economy.

 Counsel.

 Plaintiff has renewed her request for appointment of counsel in this Title VII action. The Court has the authority to appoint counsel if requested by a Title VII pro se plaintiff, pursuant to 42 U.S.C. § 2000e-5(f). Section 2000e-5(f)(1) provides, in relevant part, as follows: "Upon application by the complainant and in such circumstances as ...


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