United States District Court, Southern District of New York
January 16, 1990
MILDRED W. WILLIAMS, PLAINTIFF,
CHASE MANHATTAN BANK, N.A., DEFENDANT.
The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Mildred W. Williams ("Williams") moves to file a
second amended complaint ("Second Amended Complaint") pursuant
to Rule 15(a), Fed.R.Civ.P. Defendant Chase Manhattan Bank
("Chase") moves to dismiss the complaint pursuant to Rule
12(b)(6), Fed.R.Civ.P. For the reasons set forth below,
Williams' motion to amend her complaint for a second time is
granted, and defendant's motion to dismiss is granted in part
and denied in part.
Williams is a black female who began employment with Chase,
in January, 1969 as a teller. In 1979 Williams was promoted to
the position of assistant manager ("Assistant Manager").
Williams left Chase on February 4, 1987.
Chase is a New York corporation with its principal offices at
One Chase Manhattan Plaza, New York, New York, and is engaged
through many branch offices in the general field of banking.
Williams filed this federal court action pursuant to the
Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ("1981")
and the New York State Human Rights Law, Executive Law § 296 et
seq. on July 7, 1987. Williams bases these claims on the same
set of facts and events. On January 23, 1989 Williams filed an
Amended Complaint with Chase's consent. On June 22, 1989, Chase
filed this motion to dismiss for failure to state a claim upon
which relief can be granted, Fed.R.Civ.P. 12(b)(6), on June 22,
1989 and on August 17, 1989 Williams filed a Second Amended
Complaint. Oral arguments were heard on these motions on
October 20, 1989 and considered fully submitted as of that
Facts as Pleaded
This lawsuit concerns a series of events alleged to have
taken place over a three-year period beginning 1983 and ending
on February 4, 1987 when Williams left Chase. Williams contends
that while employed in various positions with Chase, because of
her race, she was subjected to discriminatory treatment. This
discrimination included denial of promotions and harassment in
her employment conditions.
Williams became an Assistant Manager in February, 1978; she
managed Branch # 238 as an assistant during 1982 and 1983 for
about fifteen months. Williams alleges that, contrary to
Chase's policy and practice, she was not promoted to the
position of branch manager ("Branch Manager") and that she was
not compensated appropriately for her managerial duties.
In 1983, Williams was interviewed by George Witt for the
position of Second-in-Charge of Branch # 230. Witt allegedly
promised Williams that she would be promoted to assistant
treasurer ("Assistant Treasurer"), a position which would have
made her an officer of the bank at that particular branch.
Following this interview, Williams' supervisors, Agatha Kimmel,
Branch Manager, and Richard Eiter, Zone Manager, harassed,
criticized and ultimately prevented Williams' promised
promotion. Kimmel and Eiter transferred Williams to Branch #
013 in February of 1984.
Thereafter, Williams' new supervisors, Anita D'Angelo and
Frank Mangini allegedly favored white employees over Williams
for promotions. Williams requested a promotion to Assistant
Treasurer at Branch # 013, but she was passed over for three
white males who were allegedly less qualified than Williams.
Williams was also denied a promotion to Assistant Treasurer at
other branch offices to which she applied.
In October, 1986, Williams was disciplined when Branch # 013
lost funds due to a series of forgeries. D'Angelo and another
of Williams' supervisors, William Bergen, informed Williams
that her salary and bonuses would be frozen for over three
years. Williams alleges that this disciplinary action was
baseless and discriminatorily issued. Williams left Chase on
February 4, 1987.
Williams alleges that she has been subjected to
discriminatory treatment in violation of § 1981. To support
these allegations and to provide a cognizable claim, Williams
moves to amend her complaint for a second time to include the
following specific allegations:
13. In 1983, Plaintiff was interviewed by George
Witt for the position of Second-in-charge of
Branch # 230. He promised plaintiff that she would
be promoted to the position of Assistant
Treasurer, which would have made her an officer of
the bank, at said branch.
14. Subsequently, Ms. Williams' supervisors at
Branch # 230, Agatha Kimmel, Branch Manager, and
Richard Eiter, Zone Manager, singled her out for
harassment and criticism, prevented the promised
promotion and transferred her.
19. Although she requested a promotion to the
position of Assistant Treasurer at Branch 13, Mr.
Eiter and Ms. D'Angelo refused, and promoted three
less qualified white males to the position
20. When Mr. Eiter and Ms. D'Angelo refused to
promote her, plaintiff applied for the Assistant
Treasurer position at other Chase branches, but
was not accepted.
Chase maintains that Williams' complaint fails to state a
claim for which relief can be granted under § 1981 as
interpreted by the recent U.S. Supreme Court decision in
Patterson v. McLean Credit Union, 491 U.S. ___, 109 S.Ct. 2363,
105 L.Ed.2d 132 (1989). Additionally, Chase argues that since
Patterson bars Williams' § 1981 claim, this court has no
jurisdiction over Williams' pendent state claims. Finally,
Chase raises the statute of limitations as a bar to this
A. Standards For Rule 15(a) Amended Complaints
Pursuant to Rule 15(a), Fed.R.Civ.P., leave to amend a
complaint "shall be freely given when justice so requires." If
the plaintiff has at least colorable grounds for relief under
the amendment, the amendment should be permitted unless the
plaintiff has acted in bad faith, is guilty of undue delay, or
if permission to amend would unduly prejudice the defendant.
Foman v. Davis, 371 U.S. 178, 179, 83 S.Ct. 227, 228, 9 L.Ed.2d
222 (1962); Ryder Energy Distrib. v. Merrill Lynch Commodities
Inc., 748 F.2d 774, 779 (2d Cir. 1984).
In the present case Chase does not contend that it would be
unduly prejudiced or that Williams seeks to amend in bad faith
to cause undue delay. Moreover, the discussion below indicates
that Williams' Second Amended Complaint provides a colorable
claim under § 1981, and therefore Williams' motion to file a
Second Amended Complaint meets the Rule 15(a) requirements.
B. Statute of Limitations Requirements
According to Chase, Williams' Second Amended Complaint is
futile in that it contains allegations that are barred by the
applicable statute of limitations. Chase failed to raise this
defense in its Answer and may thus have waived its opportunity
to raise the defense. See Wade v. Orange County Sheriff's
Office, 844 F.2d 951, 955 (2d Cir. 1988); Strauss v. Douglas
Aircraft Co., 404 F.2d 1152, 1155 (2d Cir. 1968). Nonetheless,
it would be futile to consider this defense waived when Chase
would be permitted to amend its answer to include the defense
pursuant to the Rule 15 liberal policy favoring a "decision on
the merits, rather than on pleadings or technicalities," Ragin
v. Macklowe, 126 F.R.D. 475, 476 (S.D.N.Y. 1989) (quoting CBS,
Inc. v. Ahern, 108 F.R.D. 14, 18 n. 4 (S.D.N.Y. 1985)). The
statute of limitations defense is considered raised, even
though it is not pleaded, on this motion for dismissal. See
Ippolito-Lutz, Inc. v. Harris, 473 F. Supp. 255, 260 (S.D.N Y
1979), citing Quigley v. Hawthorne Lumber Co., 264 F. Supp. 214,
220 (S.D.N.Y. 1967).
Generally, claims arising under § 1981 are subject to a
three-year statute of limitations. Tuckett v. Police Dept. of
New York, 708 F. Supp. 77, 78 (S.D.N.Y. 1989); Grub v. Broadcast
Music, Inc., 699 F. Supp. 382, 384 (E.D.N.Y. 1987). Where
discriminatory activities are allegedly continuous in nature,
courts may assert jurisdiction over allegations that occurred
before the statute of limitations period as long as some action
occurred during the applicable period. See Cook v. Pan American
World Airlines, Inc., 771 F.2d 635, 646 (2d Cir. 1985), cert.
denied, 474 U.S. 1109, 106 S.Ct. 895, 88 L.Ed.2d 929 citing
Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978), aff'd,
817 F.2d 1030 (2nd Cir. 1987); Guardians Ass'n of the New York City
Police Dept., Inc., 466 F. Supp. 1273, 1280 (S.D.N.Y. 1979),
aff'd, rev'd on other grounds, 633 F.2d 232 (2nd Cir. 1980).
According to Williams, the continuing violations doctrine
applies and that her complaint is therefore not barred by the
statute of limitations. Williams alleges that her denial of a
promotion to Assistant Treasurer occurred after July 7, 1984.
Since Williams filed this action on July 8, 1987 and since she
alleges a series of related discriminatory events including
several denials of the same promotion, her complaint is deemed
one of continuing violations for purposes of statute of
limitations. As such, Williams may reach back before July, 1984
to allegations that may be cognizable under § 1981 as examined
C. The Limits of § 1981 Claims Under Patterson v. McLean
In deciding the merits of a motion pursuant to Rule 12(b)(6),
Fed.R.Civ.P., all material allegations composing the factual
predicate of the action are taken as true, for the court's task
is to "assess the legal feasibility of the complaint, not assay
the weight of the evidence which might be offered in support
thereof." Ryder Energy Distrib., 748 F.2d at 779. Thus, "unless
it appears beyond doubt that the plaintiff can prove no set of
facts in support of [her] claim which would entitle [her] to
relief," a motion for dismissal must be denied. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80
The Supreme Court recently limited § 1981 employment
discrimination claims in the Patterson decision. Although the
full implications of the limits proscribed by the Court are not
yet clear, Chase urges that Patterson bars Williams'
While the Court in Patterson established that racial
harassment in a person's terms and conditions of employment is
not cognizable under § 1981, it carved out a narrow exception
with respect to failure to promote claims of discrimination.
Id. 109 S.Ct. at 2367. The basis of this exception followed
directly from the statutory language, and the Court
distinguished between discrimination in the making of an
employment contract and that in any post-contractual conduct.
The Court noted that "[o]nly where the promotion rises to the
level of an opportunity for a new and distinct relation between
the employee and the employer is such a claim actionable." Id.
at 2376 (citing as analogous, Hishon v. King & Spaulding,
467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (refusal of law
firm to accept associate into partnership in Title VII action.)
District courts presently are interpreting the boundaries of
the Patterson decision, particularly with respect to promotion
claims and what constitutes "new and distinct relations" for
purposes of an actionable claim under § 1981. Although no
bright line test has emerged to determine whether a promotion
alone constitutes a "new and distinct relation," several Courts
have proposed factors to guide in this assessment, including,
qualifications for the promotion, method of calculating salary,
responsibility level and change in status at the company. See
Guy A. Green v. Kinney Shoe Corp., 728 F. Supp. 768, 777 (D.C.
D.C. 1989) (promotion from manager-in-waiting to manager
cognizable on finding that method of evaluation, salary and
responsibilities all would change); Luna v.
City and County of Denver et al., 718 F. Supp. 854, 856-57
(D.C.Col. 1989) (promotion from Project Supervisor I to
Engineer III cognizable since the promotion involved
differences in supervisory responsibility, duties and
qualifications); Mallory v. Booth Refrigeration Supply Co.,
882 F.2d 908, 910 (4th Cir. 1989) (promotion from clerk to
supervisor with consequent pay increase satisfies Patterson
test). Mere increase in pay has failed to fulfill the Patterson
guidelines. See Williams v. National R.R. Passenger Corp.,
716 F. Supp. 49, 50, n. 1 (D.D.C. 1989) (where manager claimed that
salary increase was not sufficient, promotion claim barred by
Chase contends, based upon the Williams Court's reading of
Patterson, that Williams' allegations of discriminatorily
denied promotions fall short of the Patterson test because the
promotions at issue here involve only slight changes as opposed
to a "new and distinct relation." The facts alleged in
Williams' complaint, taken as true, in part indicate otherwise.
Williams contends that she repeatedly was denied a promotion
from Assistant Manager to Assistant Treasurer. The position
involved a change from being an employee to being an officer of
the bank at a given branch. The Patterson Court's reference to
Hishon, 467 U.S. 69, 104 S.Ct. 2229, would indicate that this
type of status change would constitute a "new and distinct
relation." See Patterson, 109 S.Ct. at 2377. Furthermore,
Williams' complaint alleges potential increased supervisory
responsibility and salary modifications, additional factors
militating toward a finding of a "new and distinct"
relationship. See Green v. Kinney Shoe, 728 F. Supp. at 777;
Luna, 718 F. Supp. at 856; Mallory, 882 F.2d at 910.
Williams' allegations concerning a denial of a promotion from
Assistant Manager to Branch Manager, however, are barred by
Patterson. Promotions from one supervisory position to another,
albeit a higher level supervisory position fail to propose a
"new and distinct relation." See Greggs v. Hillman Distrib.
Co., 719 F. Supp. 552, 554-55 (S.D.Tex. 1989); see also
Alexander v. New York Medical College, 721 F. Supp. 587, 588
(S.D.N.Y. 1989) (demotion from one supervisory position to a
lower supervisory position barred by Patterson).
On the facts as pleaded here, a promotion from Assistant
Manager to Branch Manager unlike that from Assistant Manager to
Assistant Treasurer, does not constitute a "new and distinct"
relationship. No change in responsibilities is pleaded. Even
taking the allegations in the complaint as true, this promotion
claim is barred by Patterson and thus dismissed. See Greggs,
719 F. Supp. at 554-55 (plaintiff provided no facts upon which
to base contention that promotion met Patterson, thus
allegations were conclusory); Cf. Green v. Kinney Shoe, 728
F. Supp. at 777 (court concluded that promotion from
manager-in-waiting to manager involved substantial change in
responsibilities because manager-in-waiting position was
essentially a shoe-sales employee).
D. Pendent Jurisdiction Over State Racial Harassment Claims
It is well established that a district court may, in its
discretion, assert pendent jurisdiction over a state claim
arising from the same nucleus of operative fact upon which a
federally sufficient claim is based. See United Mine Workers v.
Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218
(1966); Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989);
Perry v. Manocherian, 675 F. Supp. 1417, 1429 (S.D. N.Y. 1987).
Here, Chase urges the court to refrain from exercising pendent
jurisdiction over Williams' state racial harassment claims
under New York State Human Rights Law, Executive Law §§ 296 et
seq., because the state claim involves different facts and the
proof issues are likely to confuse the jury but provides no
authority for this proposition.
Williams' complaint reveals facts that are intricately woven
into both the federally sufficient promotion claims and the
state racial harassment claims, denial of learning
opportunities and promotion and criticism, all of which
involved two of her supervisors.
While there are different proof issues in these claims, this
result occurs in virtually all civil rights cases and cannot
alone be the basis upon which to deny pendent jurisdiction.
For the reasons set forth above Williams' motion to file a
Second Amended Complaint is granted. Chase's motion to dismiss
is granted with respect to the promotion from Assistant Manager
to Branch Manager claim and denied with respect to the
promotion from Assistant Manager to Assistant Treasurer claims.
It is so ordered.