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MCPARTLAND v. ABC

August 2, 1985

PATRICIA K. McPARTLAND, Plaintiff, against AMERICAN BROADCASTING COMPANIES, INC., Defendant


The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

America Broadcasting Companies, Inc. ("ABC") hired plaintiff on September 11, 1973, as a research supervisor for its radio network. When the Director of Research, plaintiff's supervisor, resigned, thirteen candidates, including plaintiff, were considered for the position. The position was filled on July 5, 1977, with a male candidate. Plaintiff likewise applied for and was not selected when the position of Manager of Pricing and Estimate, Television, was filled with a male candidate on November 7, 1977.

 On April 12, 1978, plaintiff filed a sex discrimination charge with the Equal Employment Opportunity Commission ("EEOC") (hereinafter referred to as "Charge No. 1"). She alleged ABC denied her a promotion, a transfer and an appropriate title for the work she performed. On April 25, 1978, the EEOC deferred the case to the New York City Commission on Human Rights ("CCHR"). On July 10, 1978, plaintiff filed a six discrimination complaint against ABC with the CCHR. She alleged that ABC denied her advancement and promotion opportunities, a transfer to the television research department, appropriate title, the opportunity to attend management training seminars and sales planning meetings, salary increases, and that ABC treated her in a humiliating and demeaning fashion.

 Plaintiff's application for the position of Director of Research and Sales, WABC-TV, was denied in September 1978, when the position was filled by a male candidate. Plaintiff's November 1978 application for the position of Director of the Contemporary Network, Radio Network, was similarly unsuccessful when a male candidate was hired on November 20, 1978. On August 24, 1979, the CCHR issued a "no probable cause" notice.

 On September 24, 1979, plaintiff was placed on 30-days probation because her performance was inadequate and unsatisfactory. On October 9, 1979, plaintiff filed a charge with the EEOC (hereinafter referred to as "Charge No. 2"), which accused ABC of harassment and alleged that 30-days probation was imposed in retaliation for her filing charges with the EEOC and the CCHR. On March 30, 1980, plaintiff amended Charge No. 2 to clarify and reaffirm the retaliation allegation (hereinafter referred to as "Change No. 3"). On January 16, 1981, ABC fired plaintiff due to incompetency, unsatisfactory performance, disorganization, failure to follow instructions and alienation of fellow workers.

 ABC's annual employee performance evaluations are scored on a scale of "1" to "5", with "5" constituting a superior performance and "1" denoting a marginal performance. A "2" rating represents a "fair" performance. For the years 1977, 1979 and 1980 plaintiff received a "2" rating for her annual evaluation. In 1978, plaintiff received a performance rating of "4", meaning very good.

 On February 5, 1982, plaintiff amended EEOC Charge No. 3 to include a new allegation of discriminatory discharge (hereinafter referred to as "Charge No. 4"). On January 27, 1982, the EEOC dismissed Charge No. 1 issued a Right to Sue Notice. On October 22, 1982, at plaintiff's request, the EEOC issued a Right to Sue Notice with regard to Charge Nos. 2, 3 and 4. The EEOC discontinued any further processing of the charges.

 On January 14, 1983, plaintiff commenced this action. Her complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., and all applicable Executive Orders, and requests equitable relief and money damages. She also alleges jurisdiction based on 42 U.S.C. § 2000 et seq.; § 717(a) of Title VII, 42 U.S.C. § 2000e-16; 28 U.S.C. §§ 1331, 1343(4), 2201 and 2202; 42 U.S.C. §§ 1983, 1985(3) and 1988; United States Constitution Amendments I, V and XIV; and New York Constitution Article I, § 1. Plaintiff's discrimination and retaliation claims are consistent with those alleged in her EEOC charges, except she further alleges discrimination on the basis of age.

 Defendant has moved for an order granting partial summary judgment and dismissing plaintiff's claims arising under the various statutory and constitutional provisions set forth above. In addition defendant has moved to dismiss plaintiff's claims for blacklisting, reinstatement, back pay and compensatory and punitive damages.

 Preliminary Discussion

 Throughout this action plaintiff has asked the Court to consider her claims in the context of two particular legal theories. It is important to address these theories at the outset. First, she asks the Court to consider that she is proceeding in this action pro se. Second, plaintiff argues that her case upon a theory of continuing discrimination.

 Complaints are to be construed liberally and pro se complaints deserve even greater latitude in construction. See, e.g., United States v. Zibilich, 542 F.2d 259, 260 (5th Cir. 1976). Consistent with her pro se status, plaintiff asks the Court to grant her special consideration with regard to the procedural technicalities of the relevant law. See, e.g., Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

 I am well aware that "lay complainant's charges are to be construed broadly and in a liberal manner in order to effect the remedial and humanitarian underpinnings of Title VII," EEOC v. Western Publishing Co., 502 F.2d 599, 603 (8th Cir. 1974). I also note, however, that plaintiff was represented by counsel from April 1978 through June 1982. I will take both circumstances into consideration in deciding the instant motion.

 Defendant argues that certain of plaintiff's claims are time-barred. Plaintiff responds that her claim should be considered timely because she is a victim of continuing discrimination. In Zipes v. Trans World Airlines, 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982), the Supreme Court stated that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 393 (footnote omitted). In the event a discrete act of discrimination does not form the basis for a discrimination charge, the doctrine of continuing discrimination may exempt a plaintiff from the strict time requirements of Title VII. The reasoh (sic) for this is "to provide a remedy for past actions which operate to discriminate against the complainant at the present time." Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975). No doubt ABC's decision to terminate plaintiff's employment continues to affect her, however, the critical question is not whether ABC's past actions have current consequences. "[T]he emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." United Air Lines v. Evans, 431 U.S. 553, 558 (1977) (emphasis supplied).

 To demonstrate a continuing violation a plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period." Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (1979)). See, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 337 (10th Cir. 1975) ("Generally, the statistics presented . . . show blacks and Spanish-Americans to be concentrated . . . where they tend not to be promoted"); Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 983 (D.C. Cir. 1973) (Defendant "maintain[s] a practice of refusing to hire blacks. . ."); Corbin v. Pan Am World Airways, Inc., 432 F. Supp. 939, 944 (N.D. Cal. 1977) ("Plaintiff's claims of a repeated failure to promote and a denial of equal pay involve ongoing aspects of [a current] employer-employee relationship"). Completed acts, such as termination through discharge or resignation, Olson v. Rembrandt Printing Co., 511 F.2d at 1234; a job transfer, Younger v. Glamorgan Pipe & Foundry Co., 310 F. Supp. 195, 197 (W.D. Va. 1969); or discontinuance of a particular job assignment, Gordon v. Baker Protective Services, Inc., 358 F. Supp. 867, 869 (N.D. Ill. 1973), are not acts of a "continuing" nature.

 A plaintiff may not circumvent Title VII's stringent time limits merely by characterizing a completed act of discrimination as a "continuing violation," such as plaintiff has alleged. Delaware State College v. Ricks, 449 U.S. 250 257,66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). Conclusory allegations of discrimination are insufficient to satisfy the requirements of Fed. R. Civ. P. 56(e) that the party opposing summary judgment must set forth specific facts demonstrating that a genuine issue of material fact exists. See L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1 (2d Cir. 1985); Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985); Quarles v. General Motors Corp. (Motors Holding Division), 758 F.2d 839 (2d Cir. 1985), Barnett v. Howaldt, 757 F.2d 23, 26 (2d Cir. 1985); JSP Agency, Inc. V. American Sugar Refining Co., 752 F.2d 56, 59 (2d Cir. 1985). The determination as to whether or not a continuing violation exists must be made on a case-by-case basis. Delaware State College, 449 U.S. at 258 n.9. While "compelling circumstances" may be sufficient to warrant a finding of "continuing" discrimination, Richard v. McDonnell Douglas Corp., 469 F.2d 1249, 1253 (8th Cir. 1972), such compelling circumstances do not exist in this case. *fn1"

 Age Discrimination:

 Defendant claims that the court lacks jurisdiction of plaintiff's age discrimination claim because she failed to file an age discrimination charge with the EEOC. The filing of a timely charge of age discrimination with the EEOC is a condition precedent to the filing of an Age Discrimination in Employment Act (ADEA") suit in federal court. 29 U.S.C. § 626(d). See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979); O'Malley v. GTE Service Corp., 758 F.2d 818 (2d Cir. 1985).

 The purposes of the notice requirements set forth by § 626(d) are to put the Secretary of Labor on notice of possible violations of the ADEA so that claims can be investigated and to put an alleged discriminator on notice that a complaint has been filed against it. Burgett v. Cudahy Co., 361 F. Supp. 617, 621 (D. Kan. 1973). Although plaintiff contends that the EEOC was notified of this allegation in writing, there is no affidavit or other documentary proof of this. In none of plaintiff's EEOC or CCHR charges and complaints against ABC has ...


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