The opinion of the court was delivered by: SWEET
This action, brought by Juanita Lewis ("Lewis") against New York Telephone ("NYT"), alleges various acts of race discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), the Civil Rights Act of 1866 (42 U.S.C. § 1981), and various state common law rights. NYT has brought a motion for summary judgment which is granted with respect to all but one element of the Title VII claim and all the state claims, but is denied with respect to the § 1981 claim.
On or about February 25, 1982 Lewis filed a complaint with the Equal Employment Opportunity Commission's ("EEOC") New York office alleging that NYT discriminating against Lewis by accusing her both of stealing files from a NYT office where she was employed and of cheating on a promotion test. The EEOC assigned the complaint docket number 021-82-2769. Consistent with the provision of Title VII, the New York State Division of Human Rights ("SDHR") had exclusive jurisdiction to investigate the case, but upon the request of Lewis SDHR waived its jurisdiction so that the EEOC could pursue its own investigation.
On August 9, 1983, after investigating Lewis' complaint, the EEOC concluded that there was no reasonable cause to believe that the allegations were true, and the charge against NYT was dismissed. Further, on August 9, 1983, Lewis was issued a "Notice of Right to Sue" on complaint 021-82-2769.
On May 23, 1983, Lewis filed a second complaint with the EEOC alleging that she had been discriminated against by being denied promotional opportunities as a result of her race. The EEOC assigned case number 021-83-2734 to this complaint. On July 28, 1983 this charge was resolved by the execution of a Negotiated Settlement Agreement, signed by the EEOC, NYT and Lewis, who was represented by counsel. The primary substantive paragraphs of the agreement state:
1. In exchange for the promises made by New York Telephone Company contained in paragraph (2) of this agreement, Juanita Lewis agrees not to institute a law suit under Title VII of the Civil Rights Act of 1964 based on Charge Number 021-83-2734 filed with the Equal Employment Opportunity Commission, and the Equal Employment Opportunity Commission agrees not to use this charge as the jurisdictional basis for a civil action under Section 706(f)(1) of Title VII.
2. In exchange for the promises of Juanita Lewis and the Equal Employment Opportunity Commission contained in paragraph (1) of this agreement, New York Telephone Company agrees:
A. That Juanita Lewis has access and will continue to have access to the New York Telephone Company Employees Assistance Bureau for consideration of any complaint that she may have.
B. That Juanita Lewis will not be penalized in any future terms and conditions of her employment because she filed the instant charge.
3. This agreement constitutes the complete understanding between the respondent, charging party and the Equal Employment Opportunity Commission. No other promises or agreements shall be binding unless signed by these parties.
4. It is understood that this agreement does not constitute an admission by the respondent of any violation of Title VII of the Civil Rights Act.
Because the charge was settled, the EEOC did not issue Lewis a Notice of Right to Sue. Subsequent to the execution of the negotiated settlement, Lewis complained that NYT had breached the agreement by not promoting her. The EEOC investigated this complaint and found it meritless.
On September 28, 1983 Lewis filed the complaint in this action. Lewis states two distinct wrongs upon which she bases her federal causes of action. First, she alleges that dispite 19 years of employment during which she performed competently and as a result of which she obtained in late 1981 a "satisfactory plus" rating, NYT refused to promote Lewis because she was black. Second, Lewis alleges that NYT subjected her to discriminatory harassment by unjustly accusing her of the theft of personnel records and cheating on a promotion test when Lewis successfully obtained a passing score on that test. Lewis claims that these actions by NYT constitute violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200e et seq. and the Civil Rigths Act of 1866, 42 U.S.C. § 1981.
Lewis also has brought four pendent state claims. The first alleges a breach of contract on the part of NYT as a result of NYT's failure to promote Lewis subsequent to the July 28 agreement. The second alleges a breach of NYT's convenant of good faith and fair dealing by not successfully assisting Lewis in her efforts to obtain a promotion. The third alleges that NYT induced Lewis to enter into the July 28, 1983 agreement by informing her that she would have access to NYT's Employee Assistance Bureau and that this access would result in a promotion. Lewis claims that NYT has breached its agreement, apparently by failing to promote Lewis. Lewis' fourth and final statement claim alleges that NYT maliciously and willfully failed to promote Lewis and thereby caused her to suffer humiliation, mental and emotional anguish and physical distress. Lewis consequently claims damages for the intentional infliction of emotional distress.
In her complaint Lewis alleges that on November 10, 1981 she informed her supervisor, Ms. Vivian Tate, of her intention to file an Upgrade and Transfer request for the Trunk Assignor Position. At the time she had an overall performance rating of "satisfactory plus." Lewis thereafter filed seven upgrade and transfer requests for promotion. Each request was "either deemed a renewal requiring additional clerical steps, or was deemed expired because of defendant's questionable employment practice grounded on race and sex discrimination of limiting the duration of an employee's request for promotion to one year, thus requiring me to continually reapplying for a position which had vacancies and for which I was qualified." Lewis Aff. at P4. On January 29, 1982 Lewis alleges that in furtherance of NYT's intentional discrimination against Lewis as a result of her race she was falsely accused of cheating on a promotion test and stealing personnel records.
The deposition of Mr. Brian Lenahan, District Staff Manager of NYT at the time of the incidents ...