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February 26, 1990


The opinion of the court was delivered by: Conboy, District Judge:



Neither party has submitted the requisite statements pursuant to Civil Rule 3(g) of the United States District Court for the Southern and Eastern Districts (hereinafter "Local Rules"). Although Local Rule 3(g) provides that the "[f]ailure to submit such a statement constitutes grounds for denial of the motion," we decline to deny the defendant's summary judgment motion on that ground. Accordingly, we have compiled from all of the documents submitted in support of and in opposition to the pending motions the following statement of relevant facts. Where the allegations are in dispute, we have so noted.

Miller was employed by SwissRe from June 1982 until March 1987. He began working as a computer aide, a position which he held until April 1985, when he was then promoted to a Computer Aide Senior. In September 1985, Miller was promoted to Production Coordinator in the Production Control Department (the "Department"), the position he last held with the company. Miller alleges that in October 1985, he was discriminatorily passed over for promotion to the position of Supervisor of Production Control in favor of a white co-worker with less seniority in the company and no experience in the Department. The position of Supervisor, but not that of Production Coordinator, was classified as "exempt" by SwissRe, which meant that it was a managerial-level position with compensation by salary only, rather than by overtime pay for hours worked in excess of forty per week which the non-exempt production coordinators received. In addition, exempt employees received more liberal benefits and vacation time than non-exempt employees and an exempt employee's performance was evaluated differently than that of non-exempt employee.

Miller further alleges he was later subject to harassment and discriminatory treatment by the individual promoted to supervisor. In December 1986, Miller underwent eye surgery and took a disability leave from SwissRe. He was expected back from the leave on February 2, 1987. The facts are in dispute as to whether plaintiff validly extended his leave as plaintiff claims or whether he abandoned his job as defendant claims. In late February 1987, Miller contacted the EEOC about the alleged employment discrimination he encountered at SwissRe. On or around March 18, 1987, plaintiff received a telegram from SwissRe purporting to accept his resignation from his post on the ground that he had abandoned it. Plaintiff claims that, by this telegram, he was terminated in retaliation for filing his complaint with the EEOC. After the EEOC dismissed his complaint, plaintiff filed suit pro se in this Court.

With regard to the pending motions, we will first address the issue of whether, after Patterson, any of the plaintiff's section 1981 claims survive. Since we conclude for the reasons set forth immediately below that part of the plaintiff's section 1981 claim is still cognizable, we will then consider the question of whether his request for a jury trial was timely.


A. Section 1981

Plaintiff's section 1981 claim may be broken down into three components (1) discriminatory harassment, (2) failure to promote and (3) retaliatory discharge. SwissRe moves for summary judgment on all three components. Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Section 1981 of the Civil Rights Act of 1866 provides that "all persons shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981. In Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court recently held that with reference to the right to make contracts free from discrimination, section 1981 does not apply to conduct by the employer which occurs "after the contract relation has been established." Id. at 2373. The Patterson Court held that claims of racial harassment, "reprehensible though it be if true," are not actionable under section 1981 since such harassment constitutes postformation conduct. Id. at 2374. Instead, the Court held that "such conduct is actionable under the more expansive reach of Title VII of the Civil Rights Act of 1964." Id. Thus, since Patterson, it is clear that, as a matter of law, plaintiff cannot proceed under section 1981 with a claim of harassment during the course of employment. See, e.g., Yates v. Western Electric Co., Inc., Civ. No. 88-2280-5, 1989 WL 152222 (D.Kan. November 30, 1989); Obago v. Union of American Hebrew Congregations, No. 89 Civ. 0608, 1989 WL 88665 (S.D.N Y August 3, 1989); Gonzalez v. The Home Insurance Co., No. 85 Civ. 5856, 1989 WL 106467 (S.D.N.Y. July 28, 1989). Accordingly, we grant defendant's motion for summary judgment as to the portion of plaintiff's claim alleging racial harassment by a supervisor during the course of his employment.*fn2

With regard to the racially motivated failure to promote claim, the Patterson Court pointed out, in dicta, that such claims implicate, in certain circumstances, the right to make contracts under section 1981. 109 S.Ct. at 2374, 2377 (must involve the opportunity to enter into a new contract with the employer). The Court set out a standard for determining when a failure to promote claim would be cognizable under section 1981: the promotion must "rise to the level of an opportunity for a new and distinct relationship between the employer and the employee." Id. Examples of a new and distinct relationship include a promotion from associate to partner in a law firm, id. (citing Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); from clerk to supervisor, Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908 (4th Cir. 1989); from employee to officer, Williams v. Chase Manhattan Bank, N.A., 728 F. Supp. 1004 (S.D.N.Y. 1990); from project inspector to supervisory engineer, Luna v. City and County of Denver, 718 F. Supp. 854, 856-57 (D.Colo. 1989); from salesman to manager, Green v. Kinney Shoe Corp., 728 F. Supp. 768 (D.D.C. 1989). It is not enough that a promotion merely provides an increase in pay. See Williams v. National Railroad Passenger Corp., 716 F. Supp. 49, 51 (D.D.C. 1989).

Plaintiff claims that a promotion from Production Coordinator to Supervisor of Production Control would have significantly altered his relationship with his employer. Plaintiff has submitted excerpts from SwissRe's Employment Manual as well as an organizational chart of the SwissRe management to support this proposition. Because we conclude that these exhibits demonstrate that SwissRe considers the Supervisor position a management position with different duties, and because the relationship of the employer with exempt employees differs significantly from the employer's relationship with non-exempt employees, with regard to, inter alia, methods of payment of salary and performance evaluations, we believe that plaintiff, for the purposes of this motion, has satisfied the standard of a "new and distinct relationship." Accordingly, since we believe plaintiff has raised colorable triable issues on the claim of failure to promote, defendant's motion for summary judgment on this ground is denied.

The final component of plaintiff's section 1981 claim is his complaint of retaliatory discharge. Prior to Patterson, it was the law in this circuit, as well as others, that section 1981 provided a cause of action for retaliatory discharge. See Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 42-43 (2d Cir. 1984). Since Patterson, it is questionable whether such a claim is cognizable under section 1981, for a few reasons, only one of which we need address here.*fn3 It is clear that a claim of retaliatory discharge does not implicate the right to "make contracts" aspect of section 1981. Williams v. National R.R. Passenger Corp., 716 F. Supp. 49, 51 (D.D.C. 1989). Accordingly, the only question remaining is whether retaliatory discharge impairs the right to "enforce contracts."

In Patterson, the Supreme Court opined that section 1981 "prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race . . ." and that "[t]he right to enforce contracts does not . . . extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights." 109 S.Ct. at 2373. The Court, citing the dissent in Runyon v. McCrary, 427 U.S. 160, 195 n. 5, 96 S.Ct. 2586, 2606 n. 5, 49 L.Ed.2d 415 (1976), construed ...

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