UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
July 2, 1986
SONIA V. GRANT, Plaintiff,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Defendant
The opinion of the court was delivered by: SPRIZZO
OPINION AND ORDER
The following Opinion and Order constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.
Plaintiff, Sonia V. Grant, a black female, filed this action, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and 42 U.S.C. § 1981,
against her former employer, the Morgan Guaranty Trust Company of New York ("Morgan"). Ms. Grant has alleged that Morgan discriminated against her on the basis of race and sex in compensation, promotion, assignment, transfer and other terms, conditions and privileges of employment, and that these conditions forced her to resign. See Complaint at para. 1. This resignation is claimed to be a "constructive discharge." See id. at P 16(b). Plaintiff seeks injunctive and declaratory relief, compensatory and punitive damages, and costs, including attorney's fees. See id. at P 17.
On April 20, 1979, plaintiff filed timely complaints with the Equal Employment Opportunity Commission ("EEOC")
and the New York City Commission of Human Rights ("NYCCHR"). On June 25, 1980, plaintiff withdrew her then-pending complaint before the NYCCHR prior to any determination, see Def. Ex. MM, and on April 24, 1981, the EEOC determined that there was "no reasonable cause to believe that the [plaintiff's] allegation is true." See Def. Ex. NN.
The EEOC issued a "Notice of Right to Sue," and, on July 15, 1981, the plaintiff filed her complaint and properly invoked the jurisdiction of this Court pursuant to 42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1343(4).
Plaintiff's motion for class certification, brought pursuant to Fed. R. Civ. P. 23(c), was denied. See Grant v. Morgan Guaranty Trust, 548 F. Supp. 1189, 1193 (S.D.N.Y. 1982). This Court also dismissed all of plaintiff's Title VII claims except those raised before the EEOC, namely, the promotion and "constructive discharge" claims arising from her 1979 resignation. Id. at 1192. While the § 1981 claims were not limited to these two claims, it was held that plaintiff could only raise a claim of race discrimination because sex discrimination is not cognizable under § 1981. See id. at 1192 & n.5; see also Devine v. Lonschein, 621 F. Supp. 894, 896 (S.D.N.Y. 1985).
At the subsequent non-jury trial of this action, plaintiff was required to proceed pro se because of her attorney's refusal to proceed with the trial on her behalf. The Court then elicited whatever testimony plaintiff desired to offer in support of her claims. See Tr. at 5-12.
However, it became apparent that plaintiff's attorney had not properly consulted with plaintiff prior to trial, even though he previously had been granted an extensive adjournment for that purpose, and had been afforded ample notice of the trial date. Therefore, the Court afforded plaintiff an opportunity to submit a post-trial memorandum to synthesize any evidence of discrimination shown at trial, and directed that the record be left open so that plaintiff could offer evidence in addition to that elicited at trial. See id. at 112-13. Plaintiff retained no new counsel, nor did she thereafter file an application to have counsel appointed. However, plaintiff did successfully seek several adjournments so that she could file an adequate post-trial memorandum. That memorandum was filed, and, as is evident from that memorandum and the ensuing discussion set forth herein, plaintiff has ably argued the merits of her claims.
TITLE VII and § 1981 CLAIMS
Plaintiff's Employment History
On June 3, 1969, Sonia Grant was hired as a Transfer Checker in Morgan's Stock Transfer Department. See Pre-Trial Order ("PTO") at paras. 5(2), 5(3).
Her job classification was eventually changed to "Control Clerk I" because of a departmental reorganization -- not because of a promotion. See id. at PP 5(3), 5(4). Ms. Grant remained in this position without a promotion until her resignation in 1979. See id. at P 5(4).
On March 2, 1979, plaintiff submitted a letter of resignation to Morgan's Chairman of the Board, Walter Page. See Def. Ex. JJ. This letter makes no mention of discrimination. See id. Morgan re-evaluated its decision not to promote Ms. Grant, see Tr. at 42-43 (McGlynn), but found that its original decision was appropriate. See Def. Ex. KK (Letter of William Eiseman, Senior Vice President of Morgan, dated March 16, 1979).
During plaintiff's employment, Morgan had a policy of evaluating all employees once a year to determine whether each employee was eligible for a salary increase. These reviews were recorded on "salary review forms." See PTO at para. 5(5); see also Tr. at 40, 55; Def. Ex. B-Y. Various levels of supervisors contributed to the evaluation process. See Tr. at 55. Employees were rated on job knowledge, accuracy, productivity, initiative, assimilation, sense of responsibility towards work and towards others, appearance and courtesy. See Def. Ex. B-Y. Daily records of employees' instances of lateness and absence were also made and maintained. See Def. Ex. UU.
The employees received grades of: (1) "less than satisfactory;" (2) "satisfactory;" (3) "above average;" and (4) "outstanding." See id. Plaintiff never received a grade higher than "satisfactory." See PTO at para. 5(7); see also Def. Ex. B-Y. There is undisputed evidence that plaintiff's overall job performance was rated "unsatisfactory" in three reviews. See PTO at para. 5(8); Def. Ex. C, E, L.
Plaintiff claims that a supervisor had explained to her that the grades of "above average" and "outstanding" were reserved for the evaluations of the supervisors' performance, and that therefore the rating of "satisfactory" was excellent for non-supervisory personnel. See Tr. at 26.
However, Philip Alfieri, a supervisory assistant for Morgan with responsibility for maintaining and reviewing employee performance evaluations, see Tr. at 53, testified that an evaluation of "satisfactory" was the minimum level at which an employee could retain her position. See Tr. at 60. The Court accepts Alfieri's testimony as credible and concludes that the grade of "satisfactory" was the lowest level of acceptable performance and rejects plaintiff's testimony that ratings of "above average" and "outstanding" were given only to supervisory personnel.
Instances of employees' lateness and absence ("L/A") were recorded daily on time sheets. See Def. Ex. UU. These records reveal that plaintiff had a history of excessive lateness and absence. In her ten-year employment with Morgan, without considering that plaintiff took three maternity leaves and worked four days per week at certain times, Sonia Grant was late approximately fifty times and absent another seventy-five times. See Def. Ex. UU. Also, plaintiff's overall L/A record was rated "unsatisfactory" five times. See PTO at para. 5(8).
Plaintiff stated that these L/A records are inaccurate, see Tr. at 30, 102-06, and that she was "there every day and on time." See Tr. at 30. The Court does not find these claims to be credible. First, plaintiff has failed to adduce any evidence to substantiate her contention that Morgan's records were inaccurate. Secondly, it has been stipulated that plaintiff's annual salary increase was deferred for six consecutive years because of her poor L/A and marginal performance records. See PTO at para. 5(9).
In her Post-Trial Memorandum, ("Pl. Post-Trial Memo") plaintiff stated that "all of her illnesses and medical excuses were documented . . . [and] substantiated at all times by [her] doctor. . . ." See Pl. Post-Trial Memo at 48. This statement is not supported by plaintiff's evidence. Plaintiff submitted only one doctor's note, dated December 9, 1978, which merely refers to an extension of her third maternity leave. See Exhibit F to Pl. Post-Trial Memo ("Pl. Ex. F").
Plaintiff's further contention that Morgan never informed her of its L/A policy, see Tr. at 105-106, is rebutted by overwhelming credible evidence that she was informed of this policy. There was credible testimony that all Morgan employees were issued a manual describing the company's attendance policies. See Tr. at 57 (Alfieri).
Several office memoranda stipulated into evidence, see PTO at para. 14, indicate that Ms. Grant was informed seven times by five different supervisors that her job performance and her L/A record were unsatisfactory, and that, if not improved, Ms. Grant would be recommended for dismissal. See Def. Ex. AA-HH. Two of these cautionary incidents were described at trial in the testimony of Philip Alfieri and Florence Yee, an employment interviewer at Morgan whose responsibilities included interviewing employees returning from leave. See Tr. at 58, 77.
Mrs. Yee testified that plaintiff requested a transfer in 1976, upon return from her second maternity leave, because of her attendance at college. See PTO at para. 5(10); Tr. at 80. Mrs. Yee denied the request because of plaintiff's unsatisfactory performance and L/A records and placed plaintiff on "final warning" because of her L/A record. See Tr. at 84; PTO at para. 5(10). Similarly, Mr. Alfieri testified that in 1978 he had spoken to the plaintiff regarding her L/A record. See id. Tr. at 58.
Finally, it has been stipulated that plaintiff's annual salary increase was deferred for six consecutive years, 1971-1976, because of her marginal employment record. See PTO at para. 5(9). At trial, plaintiff admitted that her salary was deferred, but she claimed that it was deferred because of Morgan's policy of discrimination against blacks and women. See Tr. at 31. There is no evidence in the record to substantiate this conclusory allegation. Therefore, the Court concludes that plaintiff's employment record was, at best, only marginally satisfactory and at various times unsatisfactory. The Court further concludes that plaintiff was excessively late and absent, that she knew of Morgan's policies regarding excessive L/A's, and that her salary increases were deferred on these bases.
Ms. Grant testified that in 1974 she was concerned because her name was on a separate time sheet and she was being paid less than the other workers. See Tr. at 17. She claimed that she brought this concern to the attention of Gladys Wavra, an assistant personnel secretary in the Stock Transfer Department. Ms. Grant testified that, in light of her pursuit of a college degree, she asked Mrs. Wavra for a promotion. Id. Plaintiff testified that Mrs. Wavra informed her that the available positions were only for college graduates. Id.
While Mrs. Wavra did not testify, there was other credible testimony adduced at trial to refute plaintiff's claim. Plaintiff testified that when she returned to work and continued pursuing her degree, she noticed that white males without high school diplomas were being promoted above her. See Tr. at 18. Therefore, she claimed, she complained to Mrs. Yee about this situation in 1976, and also requested a promotion. Id. Plaintiff alleged that Mrs. Yee told her that she was not eligible for a promotion without a college degree, and that Mrs. Yee wrote up a warning because of plaintiff's complaint about the promotion of white males. Id. at 19. These claims were likewise refuted by the following evidence, which the Court finds credible.
Although it is undisputed that upon return from her second maternity leave Ms. Grant spoke to Mrs. Yee about a promotion or transfer, Mrs. Yee's version of what occurred was very different. See PTO at para. 5(10); Tr. at 78. Mrs. Yee testified that plaintiff's request was refused for two reasons. First, it was Morgan's policy to reassign an employee returning from leave to his previous position or a similar one if the prior position was unavailable. See Tr. at 82. This policy of placing a returning employee in his former position before the employee could apply for a promotion was corroborated by Mrs. McGlynn, a vice president of Morgan. See Tr. at 37. Secondly, as described more fully supra, Mrs. Yee cited plaintiff's poor job performance and L/A record as grounds for her refusal of plaintiff's request. See Tr. at 80-84; PTO at para. 5(10).
Mrs. Yee also testified that she had never told plaintiff that the available positions were only open to college graduates or that a college degree would entitle her to an automatic promotion. See Tr. at 85. Finally, Mrs. Yee contradicted plaintiff's assertion that plaintiff had complained about the promotion of white males, see id., and also testified that the "final warning" issued to plaintiff was to inform Ms. Grant that the company expected her job performance and her attendance record to improve upon her return to stock transfer duties. See id. at 83-84.
The Court finds Mrs. Yee's testimony to be very credible. It must be noted that Ms. Grant was unable to substantiate her claim that less qualified white males were being promoted above her. Upon inquiry by this Court, plaintiff could not give even the first name of one white male with lesser qualifications who was promoted. See Tr. at 23.
Plaintiff returned to work and after a time was granted her third maternity leave of absence. Upon return from this leave, on February 28, 1979, she met with Robert Cranmer, personnel representative for the Employee Unit, and requested a promotion to a "college-entry position" in the Public Relations, International Banking or Foreign Exchange Departments. See PTO at para. 5 (13); Def. Ex. HH. Plaintiff apparently believed that she was entitled to one of these ephemeral positions because Morgan had a policy of rewarding employees who received a college degree with automatic promotions to "college entry positions," and she had received her B.A. in Economics from Queens College. See Complaint at para. 15(b).
There is, however, substantial credible evidence that no such policy existed, and indeed no job classification of "college level position" existed. Mrs. McGlynn testified that "employees were considered for promotions without having degrees." See Tr. at 40. Mr. Alfieri, Mrs. Yee and Mrs. McGlynn all testified that a college degree did not entitle an employee to an automatic promotion. See id. at 40 (McGlynn), 56 (Alfieri), 91 (Yee). Rather, the credible evidence shows that at Morgan, promotions were designed to recognize superior job performance; education was only one of the several factors which would be considered in the decision whether or not to grant a promotion. See id. at 40, 54, 60, 62; see also Def. Ex. II (Morgan's Personnel Guide for Supervisors). Accordingly, this Court finds that there were no "college level positions" per se, and that Morgan did not have a policy of automatically promoting an employee who received a college degree.
Plaintiff alleged that Mr. Cranmer told her that she would not be promoted, that he would hire an outsider instead, and that if she could not accept this, she should resign. See Tr. at 19. The evidence shows, however, that Mr. Cranmer conferred with Florence Yee and his supervisor, Mrs. McGlynn, on the status of Ms. Grant. See Tr. at 41, 89. "Her request for promotion was denied because her record [was] satisfactory and nothing more." See Def. Ex. HH (Office Memo of Robert Cranmer dated March 1, 1979). Mrs. McGlynn testified that "her record was not as good as others who were promoted." See Tr. at 50. The overwhelming weight of the credible evidence shows that Mr. Cranmer, in fact, offered plaintiff her prior position in accordance with Morgan's policy regarding returning employees. See PTO at para. 5(14); Def. Ex. HH, KK (Letter of Walter Eiseman, Senior Vice President of Morgan, dated March 16, 1979); see also Tr. at 41-42 (McGlynn).
SUMMARY OF FINDINGS AND CONCLUSIONS
Thus, the Court finds that plaintiff's final request for a promotion was denied for three reasons: (1) Morgan's policy of placing a returning employee in her previous position; (2) plaintiff's marginal job performance; and (3) plaintiff's record of excessive L/A's. The Court also finds that plaintiff was properly offered her former position of "Control Clerk I," and that there is no credible evidence of conduct or statements by Cranmer, or anyone else employed by Morgan, which would support plaintiff's claims of discrimination or, for that matter, her constructive discharge claim.
The Court further finds, on all of the evidence, that Morgan did not intentionally discriminate against the plaintiff in any of its decisions to deny her a promotion.
This conclusion is buttressed by credible testimony which tended to show that Morgan successfully promoted a significant number of minorities and women, see Tr. at 45-46, 62,
and that all of those promoted had performance evaluations superior to Ms. Grant's. See id. at 50.
Indeed, it is clear from the evidence referred to above that plaintiff failed even to make out a prima facie case.
Ms. Grant successfully satisfied only the first prima facie element, namely, that she is a member of a protected class. The critical shortfall was that plaintiff failed to establish that she was qualified for an available position.
Plaintiff's claim of discrimination stemmed from her erroneous belief that it was Morgan's policy to automatically promote employees who earned a college degree to a "college level position." See Complaint at para. 15(b). However, plaintiff failed to substantiate her claim that there was such a policy and also failed to prove that any such position in fact existed. Moreover, the defendant adduced substantial evidence that no such policy or position existed, and the Court finds defendant's evidence to be credible on this issue. In the absence of such a policy, plaintiff's claim of discriminatory treatment must fail, since she offered no other evidence to show that she was otherwise qualified for a promotion. See Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 134 (7th Cir. 1985); see also Meiri v. Dacon, 607 F. Supp. 22, 23 (S.D.N.Y. 1984), aff'd, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985).
However, even assuming arguendo that plaintiff had made out a prima facie case, an examination of defendant's rebuttal evidence leads to the inescapable conclusion that the decision not to promote the plaintiff was not motivated by race or gender. There is overwhelming evidence that Morgan's reasons for not promoting plaintiff were her marginally satisfactory job performance and her history of excessive lateness and absence. Ms. Grant's employment record provided the defendant with a "legitimate, non-discriminatory reason" for the denial of her requested promotion. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Plaintiff's claim that the job evaluations submitted by the defendant are "almost totally subjective," see Pl. Post-Trial Memo at 45, must be rejected. Although the Second Circuit has recognized that "an employer may not use wholly subjective and unarticulated standards to judge employee performance for the purposes of promotion," see Knight v. Nassau County Civil Serv. Comm'n., 649 F.2d 157, 161 (2d Cir.), cert. denied, 454 U.S. 818, 70 L. Ed. 2d 87, 102 S. Ct. 97 (1981), it has admonished that the "courts must refrain from intruding into an employer's policy apparatus or second-guessing a business's decision-making process. . . ." See Meiri, supra, 759 F.2d at 995.
The standards used by Morgan were not "wholly subjective." First of all, even plaintiff concedes that two of the categories used by Morgan to rate employees, accuracy and productivity, can be evaluated objectively. See Pl. Post-Trial Memo at 46. It cannot be said that an employer that evaluates its employees on job knowledge, accuracy and productivity is acting arbitrarily. Indeed, these may very well be the most concrete criteria upon which to base a promotion decision, because they specifically relate to an employee's past performance and his qualifications for a promotion, and therefore are objective criteria. See Sweeney v. Research Found. of State Univ. of New York, 711 F.2d 1179, 1185 (2d Cir. 1983). Any basis for plaintiff's non-promotion was corroborated by her appalling lateness and absence record.
Finally, defendant's decision was in accordance with its policy of placing an employee returning from leave in her former position before that employee is eligible for a promotion. Such a policy does not violate Title VII, provided that policy is applied equally. See Gilchrist v. Bolger, 733 F.2d 1551, 1553-54 (11th Cir. 1984). Plaintiff failed to adduce any evidence that this policy was not equally or uniformly applied. Indeed, the defendant adduced very credible evidence that this policy was, in fact, equally applied. See Tr. at 82 (Yee).
Plaintiff also complains that Morgan treated frequent absences, justified or not, as grounds for precluding a transfer or a promotion, see Tr. at 48, 100, and that Morgan treated a lateness of one minute as a full lateness. See Pl. Post-Trial Memo at 48.
However, Morgan is free to institute any attendance policy so long as it is applied equally to all employees. See Gilchrist, supra, 733 F.2d at 1553-54. Plaintiff utterly failed to adduce any competent proof that Morgan's attendance policies were not applied equally. This Court will not second-guess Morgan's business judgment with respect to its attendance policies where there is no evidence that these policies were used to discriminate against blacks or women. See Meiri, supra, 759 F.2d at 995. The Court concludes that plaintiff has failed to show that Morgan's L/A policy was a pretext for discrimination.
Plaintiff's final attack on Morgan focuses upon Morgan's failure to post job openings.
Plaintiff claims the failure to post job openings is prima facie evidence of discrimination. See Pl. Post-Trial Memo at 42-43. In support of this proposition, plaintiff cites Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 34 L. Ed. 2d 246, 93 S. Ct. 319 (1972). In Brown, the Fourth Circuit panel stated that "the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate . . . the racial bias pictured by the statistical pattern of the company's work force." See Brown, supra, 457 F.2d at 1383.
The Fourth Circuit subsequently explained its holding in Brown, stating that the absence of job posting "does not necessarily make a prima facie case of discrimination, although in a proper case [it] may be considered evidence thereof." See Roman v. ESB, Inc., 550 F.2d 1343, 1354 (4th Cir. 1976). In the context of this case, the failure to post job notices, even if proven, is insufficient to substantiate a claim of intentional discrimination where there has been no showing of how the absence of posting resulted in discrimination against the plaintiff, and especially where, as here, plaintiff has not proffered any evidence, statistical or otherwise, sufficient to raise an inference of discrimination. See Hudson v. Int'l Business Mach., 22 Fair. Empl. Prac. Cas. 950, 952 (S.D.N.Y. 1979), aff'd, 620 F.2d 351 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S. Ct. 794, 66 L. Ed. 2d 611 (1980).
CONSTRUCTIVE DISCHARGE CLAIM
Plaintiff alleges that her resignation was prompted by defendant's discriminatory denial of her request for a promotion and therefore it constituted a "constructive discharge." See Complaint at para. 16(b). Plaintiff also claims that this "constructive discharge" was intended to deprive her of her pension rights before they had vested. See id. at P 16(c). Since this Court has concluded that Morgan's conduct in this case was not discriminatory, and, indeed, has already noted that plaintiff's letter of resignation makes no mention of any discrimination by Morgan, see Def. Ex. JJ, the same unsubstantiated allegations of discrimination necessarily fail to establish a "constructive discharge." Therefore, the Court finds that plaintiff's resignation was voluntary. See Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457, 461 (5th Cir. 1978).
Assuming arguendo that Ms. Grant had established discrimination, her constructive discharge claim would still fail because a showing of discrimination in the "absence of aggravating factors" cannot be the basis of a finding of "constructive discharge." See Stephney v. Hospital for Joint Diseases, 48 Fair Empl. Prac. Cas. (BNA) 775, No. 83-6123 (LBS), slip op. at 4-6 (S.D.N.Y. Dec. 4, 1985). A constructive discharge exists "when the employer . . . 'deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation.'" See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Young v. Southwestern Savings and Loan Ass'n., 509 F.2d 140, 144 (5th Cir. 1975)). Also, "'the trier of fact must be satisfied that the . . . working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id. (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). The Court is not satisfied that plaintiff has made such a showing in this case.
Courts have refused to find a constructive discharge based on discrimination alone, without the finding of "aggravating factors." See, e.g., Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1173-74 (D.C. Cir. 1981); Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980). In particular, courts have found that a discriminatory denial of a promotion, without more, cannot amount to a constructive discharge. See, e.g., Bristow v. Daily Press, Inc., 770 F.2d 1251, 1256 n.4 (4th Cir. 1985), cert. denied, 475 U.S. 1082, 106 S. Ct. 1461, 89 L. Ed. 2d 718 (1986); Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir. 1982).
While plaintiff expressed disappointment in Morgan's decision, see Tr. at 15, mere disappointment cannot make working conditions so intolerable that a reasonable person would resign. See Bourque, supra, 617 F.2d at 65. This conclusion is consistent with the underlying policies of Title VII, which "will be best served if, wherever possible, unlawful discrimination is attacked within the context of existing employment relationships." See id. at 66.
Giving her claim the generous interpretation accorded in pro se actions, cf. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), plaintiff's allegation also may be interpreted as a claim that she suffered humiliation because of Morgan's decision. See Pl. Post-Trial Memo at 2 (action brought "to regain a sense of dignity and achieve vindication"). Plaintiff, however, has not substantiated this claim with evidence. Plaintiff failed to produce any credible evidence of verbal abuse or transfer to a substantially inferior position. See Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985) (citing Goss v. Exxon Office Systems Co., 747 F.2d 885, 888-89 (3d Cir. 1984)); see also Rosado, supra, 562 F.2d at 119-20 & n.4.
Finally, the reasonableness of plaintiff's decision to resign must be questioned where, as here, Morgan offered plaintiff her former position both before and after her resignation, and there were administrative and judicial remedies available to determine whether there had been discrimination against plaintiff. Cf. Bourque, supra, 617 F.2d at 66. Therefore, this Court finds that plaintiff was not constructively discharged.
Plaintiff's allegation that the constructive discharge was designed to deprive her of her pension rights is incredible for two reasons. First, there is no evidence to substantiate the claim that Morgan desired to deny plaintiff's pension rights. Secondly, if plaintiff had returned to Morgan's employ -- and she had ample opportunity to do so -- it is reasonable to presume that no pension rights would have been forfeited.
In light of the foregoing discussion, it is evident that plaintiff has failed to carry her ultimate burden of proving that Morgan's decision not to promote her was illegally motivated by considerations of race or gender. See Burdine, supra, 450 U.S. at 256. Indeed, plaintiff has provided this Court with nothing more than conclusory assertions that Morgan denied her equal opportunity.
Therefore, plaintiff's Title VII promotion claim must be dismissed, see Fisher v. Fashion Institute of Technology, 491 F. Supp. 879, 883 (S.D.N.Y. 1980). Her § 1981 claim must be dismissed as well. See Knight, supra, 649 F.2d at 161-62. Plaintiff has also failed to prove her claim of constructive discharge. Accordingly, the Clerk of the Court is directed to enter judgment for the defendant on all remaining claims.
It is SO ORDERED.
July 2, 1986