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GRANT v. MORGAN GUAR. TRUST CO.

July 2, 1986

SONIA V. GRANT, Plaintiff,
v.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Defendant



The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

 SPRIZZO, D.J.:

 The following Opinion and Order constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 BACKGROUND

 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., *fn1" and 42 U.S.C. § 1981, *fn2" 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") *fn3" 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. *fn4" 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. *fn5" 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.

 I.

 TITLE VII and § 1981 CLAIMS

 FACTS

 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). *fn6" 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. *fn7" 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 ...


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