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July 9, 1990


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


This employment discrimination action was filed in October 1989 by four former employees of defendant, Mitsubishi Bank Ltd. ("Mitsubishi" or the "bank"), pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The complaint, filed on behalf of plaintiffs and a similarly situated class of "non-oriental" or "non-Japanese" employees of the bank, seeks redress from discrimination by the defendant on the grounds of race, descent, ancestry, ethnic and national origin and characteristics in promotion and in the terms and conditions of their respective employment. Plaintiffs also seek relief under the New York State Human Rights Law, Executive Law § 296. Plaintiffs have not sought leave to consolidate this complaint with another pending action alleging violations of 42 U.S.C. § 1981 based on substantially similar factual allegations.

This matter is now before the Court on defendant's motion to dismiss both the title VII and Human Rights Law claims. For the foregoing reasons, defendant's motion is denied.

Plaintiffs, Oneida Adames, Nancy G. Farinola, Mirsada Krlic, and Lisa Poggi, are four former employees of Mitsubishi Bank. They allege that Mitsubishi has a pattern and practice of denying promotion, training, transfers, and various employment benefits to non-oriental and non-Japanese employees. Plaintiffs further allege that non-oriental and non-Japanese employees are subject to more exacting job performance standards and were and are subject to a racially hostile working environment. Two of the four named plaintiffs, Krlic and Poggi, allege that they have complied with the statutory notice and filing requirements necessary to maintain a Title VII lawsuit.

Poggi's Initial Charge

Plaintiff Poggi was hired by defendant Mitsubishi on September 4, 1984, and resigned her employment effective December 3, 1985. Poggi filed a charge of discrimination against Mitsubishi with the Equal Employment Opportunity Commission ("EEOC") on December 3, 1985. Poggi charged that she believed she had been "discriminated against because of my sex/female and national origin/American." In her charge, Poggi stated that, although she was hired as a research analyst, she was only allowed to perform secretarial duties. According to Poggi, another "American: female resigned from the Bank in 1985 for similar reasons." Poggi complained that an oriental female employee, who was also hired as a Research Analyst, was allowed to perform the functions of a research analyst and had recently been promoted to Assistant Manager.

Poggi's EEOC charge was referred to the New York State Department of Human Rights ("SDHR") for processing, including investigation and potential conciliation. Mitsubishi was notified of this referral in December 1985. By letter dated January 2, 1986, the SDHR urged the bank to pursue conciliation and settlement with respect to Poggi's claim and offered assistance toward this end. The bank was also requested, if it was not interested in exploring conciliation, to produce documentation and to submit a position statement addressing Poggi's allegations. The SDHR's request for a position statement and other information focused on Poggi's individual complaint of discrimination and did not refer to the possibility of widespread discriminatory practices. The bank responded to these requests in February 1986.

On September 16, 1986, Poggi was interviewed by a member of the staff of the SDHR. According to an inter-office memorandum summarizing the interview, Poggi stated that during her employment at the bank, "she observed that all White Americans male and female were assigned to tasks that did not train them for executive positions," while two Asians performed the duties of junior officer. Poggi further reported that "all the Asians performed responsible functions," and that she believed that management denied giving her and the other White Americans specific duties because they were not Japanese. There is no evidence that this report was ever conveyed to defendant until after plaintiffs filed the section 1981 case in March 1988, when the report was made available through the discovery process.

Poggi's Amended Charge

On or about May 17, 1988, Poggi filed an "amendment" to her original December 3, 1985 EEOC charge. Poggi amended paragraph III of her original charge to include race and color, in addition to sex and national origin, as the bases for the alleged discrimination. Poggi also added a new paragraph IV:

  "IV. Since the date of my termination from
  employment and continuing to the date hereof, the
  Respondent has denied promotional opportunities
  and equal terms and conditions of employment to
  other non-oriental and non-Japanese employees,
  including Oneida Adames, Mirsada Krlic and Nancy
    I allege that the Respondent's mistreatment of
  its non-oriental and non-Japanese employees
  constitutes a pattern and practice and,
  accordingly, I hereby amend my Charge against the
  Respondent to allege discrimination on the bases
  of race and ethnic origin characteristics on
  behalf of all Bank employees similarly situated."

In July 1988, both parties stipulated to have the SDHR suspend its investigation into Poggi's two discrimination charges due to the pendency of the federal civil rights action brought by Poggi and three former employees under section 1981. The stipulation preserved the bank's right to object to Poggi's amended claim as time-barred as well as Poggi's right to request the EEOC to issue a notice of right to sue with respect to the original or amended charge.

In a letter dated September 9, 1988, the SDHR informed counsel that the requested stay was granted and that there would be no further investigation. The SDHR further stated that the addition of race, color, and national origin claims in Poggi's amended complaint was proper because it added charges related to the original complaint. However, the SDHR informed the parties that the paragraph of the amended complaint that described events occurring since the filing of the original complaint was not proper: "In this situation, the complainant should have filed a separate complaint. We have kept the amendment but will not pursue improper allegations."

In March 1989, the SDHR informed the parties that, since only claims of discrimination on the basis of age were entitled to an automatic stay, the investigation into the Poggi matter would continue after all.

Krlic's Charge

Plaintiff Krlic was hired by Mitsubishi on August 4, 1986. On October 1, 1987, Krlic notified the bank in writing that she was resigning her position effective October 14, 1987. On August 2, 1988, Krlic filed a claim of discrimination with the EEOC, which apparently referred it to the SDHR.*fn1 The charge states that, although Krlic was hired as a credit analyst, she was compelled to do the work of a lower-level administrative assistant. Krlic claimed that despite her qualifications she was consistently denied any opportunity for promotion, as well as job perquisites, and that her performance evaluation prevented promotion. Because of such treatment, Krlic was forced to resign.

Plaintiff further alleged that "the Bank had engaged in a similar pattern and practice of mistreatment denying promotion opportunities, perquisites, and comparable performance evaluation to other non-Japanese and non-oriental employees. There also exists at the bank a racially deprecatory work environment against non-Japanese and non-oriental employees." Claiming that such practices were widespread throughout the bank's U.S. offices, Krlic filed her charge on behalf of all other similarly situated bank employees of non-oriental and non-Japanese descent, ancestry, and ethnic characteristics. The charge also made reference to Poggi's original and amended EEOC complaints.

The title VII action was commenced by plaintiffs on October 6, 1989. Both plaintiffs Krlic and Poggi requested the EEOC to issue notices of right to sue before their agency charges were fully processed and before any findings had been made by the SDHR or EEOC. Plaintiffs also requested a dismissal of the proceedings before the SDHR for administrative convenience in order to join their state law claims as pendent claims to the title VII complaint.

On December 26, 1989, the SDHR issued orders of dismissal for the claims of both Poggi and Krlic. These orders stated that the complaints had been dismissed on the grounds of administrative convenience in that the matters were presently being litigated in federal court, where all the issues concerning the questions of national origin, sex, race, and color discrimination could be resolved. The orders expressly pointed out that in this situation the plaintiffs ...

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