United States District Court, Southern District of New York
March 8, 1991
KATHLEEN SCHMITZ, PLAINTIFF,
ST. REGIS PAPER CO., DEFENDANT.
The opinion of the court was delivered by: VINCENT L. Broderick, District Judge.
This action was brought in 1983 pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging
employment discrimination on the basis of sex. Plaintiff had been
dismissed from her position as marketing manager in the bag
packaging division of the St. Regis Paper Company ("St. Regis")
in 1981 for reasons St. Regis stated were economic. I held a full
trial and determined that St. Regis had been guilty of employment
discrimination in the termination of the plaintiff. On June 16,
1986, I directed St. Regis*fn1 to reinstate the plaintiff "to a
position which is comparable to the position from which she was
eliminated." I further specified that plaintiff's new job should
involve "working on forecasting and on new product development
for film products, resolving problems with stretch film and
rewriting the plastics manual."
After I issued this ruling, the parties apparently agreed to
postpone reinstatement pending appeal to the Second Circuit. On
February 5, 1987, the Second Circuit affirmed. 811 F.2d 131. In
the months that followed, defendant offered plaintiff two
positions, one of which plaintiff considered not to be
comparable. With respect to the other position, plaintiff's
counsel requested a full description of the responsibilities.
Defendant furnished the following description:
Position Title Marketing Manager/Assistant To
Vice-President — Order Services
Location Hamilton, Ohio
Reports to the Vice President of Order Services and
assists him in the management of department
Works with all departments in Order Services on
marketing and other related projects as assigned.
Provides marketing and product support for department
managers. Manages specific areas of marketing,
product sales, production planning, systems,
training, customer service, etc.
Works as assigned on specific marketing and other
related projects for Order Services department.
Typical responsibilities would include:
º Support activities related to marketing of printing
and writing and publication paper grades.
º Assist product management group in the preparation
and implementation of marketing plan(s) setting
forth projections for the year relative to impact
on bottom line and tactics to accomplish goal.
º Assists in the process of allocating product line
º Training of newly hired sales people.
º Assist department managers in daily activities
related to customer relations, order entry,
scheduling inventory, management, cost improvement,
º Analyze market and statistical data to identify
trends and to assist in management decisions.
Typical projects would include:
º Implementation and management of new telephone
º Implementation of monthly target performance
º Computerization of various sales and marketing
system functions and communications including sales
º Coordination of project work involving
participative management work teams.
º Coordination of projects involving restructuring of
the Order Services department.
After this information was provided, plaintiff accepted the
position of marketing manager and assistant to the vice-president
of the order services department, located in Hamilton, Ohio.
Plaintiff began work on July 13, 1987 and plaintiff's counsel
a satisfaction of judgment on July 14, 1987.
Plaintiff asserts that within the first couple of months it
became clear that the position was not comparable to her prior
job. In December 1987 and March 1988 plaintiff informally
discussed with her supervisor, Mr. Burton MacArthur, her concerns
with the position. Plaintiff filed an internal complaint in April
of 1989. Thereafter, in March of 1990 the plaintiff filed herein
a motion for contempt.
Now pending before me are plaintiff's motion for contempt and
supplemental relief, and defendant's motion to dismiss
plaintiff's motion for contempt. I deny plaintiff's motion for
contempt and supplemental relief and grant defendant's motion to
dismiss plaintiff's motion for contempt.
I. Plaintiff's claim is barred by the equitable doctrine of
Equity aids only the vigilant, not those who sleep on their
rights. Mikulec v. United States, 705 F.2d 599
, 602 (2d Cir.
1983). The equitable defense of laches evolved out of that maxim
and bars a plaintiff's claim where the plaintiff unreasonably
delays in instituting a suit, if the result of the delay is
prejudicial to the defendant. See Ali A. Tamini v. M/V Jewon,
808 F.2d 978
, 979-980 (2d Cir. 1987); Majorica, S.A. v. R.H.
Macy & Co., Inc., 762 F.2d 7
, 8 (2d Cir. 1985) on remand
699 F. Supp. 105 (S.D.Tex. 1988), aff'd Tamini v. Salen Dry Cargo
AB, 866 F.2d 741
(5th Cir. 1989); Union Bank of India v. Seven
Seas Imports, Inc., 727 F. Supp. 125, 131 (S.D.N.Y. 1989). The
reasonableness of the delay rather than its length is the focus
of the court's inquiry.
Plaintiff unreasonably delayed in filing her motion for
contempt. She had knowledge of the facts affecting her rights
during the first year in which she commenced work at Champion,
and during that period she came to believe that her new duties
were not comparable to her previous employment. She voiced her
concerns about her present duties to Mr. MacArthur in December of
1987, and again in March of 1988. Thereafter, plaintiff waited
until April, 1989 before filing a formal complaint with Champion.
As a result of plaintiff's complaint, Champion hired the law
firm of Frost & Jacobs to investigate her allegations. Deborah
Adams, Esq., a partner and experienced employment lawyer with
Frost & Jacobs, conducted numerous interviews with company
officials, employees and plaintiff. Ms. Adams concluded in June
of 1989 that plaintiff had been placed in a position comparable
to that from which she had previously been eliminated, and that
she had not been subjected to sexual discrimination or
retaliation. After receiving the results of Ms. Adams'
investigation, the plaintiff waited nine months before bringing
her motion for contempt.
Plaintiff's failure to file her motion for contempt in a timely
manner prejudiced defendant in two respects. First, the defendant
has lost potentially valuable evidence. Many of the former St.
Regis employees who could testify as to Plaintiff's prior job
duties do not work for Champion and may be difficult if not
impossible to locate. Furthermore, plaintiff's motion requires
those witnesses who can be located to reconstruct events which
occurred ten or more years ago.
Second, Champion has changed its position with respect to the
plaintiff. The company reinstated plaintiff in good faith to a
position to which she acquiesced and with respect to which she
accepted the benefits. In addition, it has spent three years
working with the plaintiff and devoting its effort toward helping
her attain success in the job.
Plaintiff attempts to explain the three-year delay in filing
her motion for contempt by arguing that the defendant
fraudulently induced the execution of the satisfaction of
judgment. Plaintiff claims that at the time of the execution of
the satisfaction of judgment the defendant represented that the
jobs were comparable. The fraud occurred, plaintiff states,
because the defendant knew at the time the satisfaction of
judgment was executed that the former and present jobs were not
comparable. Plaintiff asserts that the delay in filing the
motion for contempt is excusable because she could not prove
contempt with clear and convincing evidence until the fraud was
uncovered. She posits, moreover, that she took reasonable action
to remedy the situation without the intervention of this court.
The facts do not support plaintiff's argument that discovery of
the alleged fraud substantially delayed her from filing her
motion in a more timely manner. During her first year in the new
position, plaintiff became aware that it was not comparable to
her previous employment. The exhaustion of internal remedies is
not a prerequisite for filing a motion for contempt.
II. Plaintiff has failed to prove contempt.
The standard for contempt is rigorous and mandates that the
plaintiff prove by clear and convincing evidence that:
the order being enforced is `clear and unambiguous,'
the proof of non-compliance is `clear and
convincing,' and the [defendant] had not `been
reasonably diligent and energetic in attempting to
accomplish what was ordered.'
E.E.O.C. v. Local 580, International Association of Bridge,
Structural and Ornamental Ironworkers, Joint
Apprentice-Journeyman Educational Fund Allied Building Metal
Industries, Inc., 925 F.2d 588, 593, 594 (2d Cir. 1991) (quoting
EEOC v. Local 638 Sheet Metal Workers' Int'l Ass'n,
753 F.2d 1172, 1178 (2d Cir. 1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019,
92 L.Ed.2d 344 (1986)). Accord New York State National
Organization for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989),
cert. denied, ___ U.S. ___, 110 S.Ct. 2206, 109 L.Ed.2d 532
(1990). The plaintiff fails to satisfy this burden. Although the
order alleged to have been violated is clear and unambiguous, the
plaintiff has not proven by clear and convincing evidence that
the defendant failed to comply with the order or that the
defendant failed to implement the order in a reasonably diligent
A. The underlying order was unambiguous.
The defendant could not strictly implement the June 1986 order,
which directed that the plaintiff's new job should involve
"working on forecasting and on new product development for film
products, resolving problems with stretch film and rewriting the
plastics manual," because the St. Regis Paper Company had merged
with Champion International Corporation ("Champion") on January
31, 1985. In 1987, at the time of the plaintiff's reinstatement,
the merged company's work force had been drastically cut and
Champion had begun to phase out the marketing department as an
independent department. In addition, Champion had sold the bag
packaging division of St. Regis and disposed of all its brown
paper operations including stretch film.
However, the June 1986 order does constitute a specific and
definite order, capable of being carried out: it required
unambiguously that Champion must reinstate the plaintiff "to a
position which is comparable to the position from which she was
B. Proof of defendant's non-compliance is not clear and
Plaintiff has failed to demonstrate by clear and convincing
evidence that the defendant failed to reinstate plaintiff to a
comparable position from which she was terminated.
When determining whether a position is comparable in employment
discrimination cases, the courts look to see whether the position
offers similar pay, title, job responsibilities, job duties,
promotional opportunities, working conditions and status. Barnes
v. Bosley, 828 F.2d 1253, 1256 (8th Cir. 1987); see also
Spagnuolo v. Whirlpool Corporation, 717 F.2d 114, 117-118 (4th
Cir. 1983). Plaintiff does not address many of these criteria in
her briefing papers. However, plaintiff asserts that her present
position is not comparable to her former position because she was
treated as an assistant rather than as a manager; she had to
educate constantly her co-workers as to her title and management
responsibilities; her direct supervisor was under the impression
that she was little more than a
"gofer" for the vice-president to whom she reported; she was told
not to perform forecasting and marketing duties because those
duties were the responsibility of the sales/marketing department,
not the order and services department. Plaintiff concludes that
the position is a dead end, special projects job. In addition,
plaintiff asserts that a position comparable to her former job
exists and existed at the time of her reinstatement, in the
printing and writing division and in other divisions in Champion.
I find that plaintiff's new position is sufficiently comparable
to her former position. Plaintiff was reinstated to the same job
grade she had had, and in her new position she receives a higher
salary. In her old and new positions plaintiff had managerial
responsibility. At St. Regis plaintiff had been marketing manager
in the brown bag packaging division, and at Champion, she is
marketing manager and assistant to the vice-president in the
order services department.
Plaintiff's current duties sufficiently reflect the type of
project-oriented duties she was responsible for in her former
position. Her former job duties included repositioning stretch
film, determining appropriate prospects, training sales recruits,
handling distribution efforts, handling new growth areas,
supervising others, and managing other research projects. Her
current duties include, or have included, implementing a new
telephone sales system; working on an inter-mill transfer project
in which she analyzed how the company could more efficiently move
products between mills; analyzing how to improve the distribution
centers' efficiency; developing a grade matrix — a computerized
model used by the sales/marketing department to access product
information more easily; planning and actively participating in
district sales meetings; designing a "sales aid" computerized
model which essentially allows the company to catalog information
on customers, thereby allowing a sales/marketing force to access
such information easily. Each of these duties is related to
specific responsibilities enumerated in the job description. Each
falls within the contemplated responsibility of "[a]ssist[ing]
department managers in daily activities related to customer
relations, order entry, scheduling inventory, management cost
improvement, etc." and "[a]nalyz[ing] market and statistical data
to identify trends and to assist in management decisions."
Plaintiff has not adequately contrasted her current and former
job responsibilities and duties, and has, as a consequence,
failed to show by clear and convincing evidence that the current
and former jobs are not comparable.
Plaintiff concededly is not involved in selling or marketing
any particular product, but the job description which plaintiff
reviewed before accepting her present position does not state
that the plaintiff would have responsibility over the marketing
of a particular product. Plaintiff's present position does allow
her to gain exposure to marketing operations and to fulfill an
important marketing duty as a member of a line function in which
she works with inside sales people, manufacturing people,
district sales people and high level employees at Champion's
Plaintiff insists that the positions titled "market manager"
and "product manager" within the printing and writing division of
Champion are the closest to the duties she performed while at St.
Regis, and she claims that these positions were available at the
time she negotiated with Champion for reinstatement to a
comparable position. She also asserts that the court's order
could be complied with if Champion transferred her to a
managerial position within the sales/marketing department or to a
product manager position in another division. She does not,
however, submit evidence to support this assertion. Thus she
fails to explain how the positions of product manager, market
manager, district sales manager, or assistant district sales
manager in Champion are comparable to her former position with
St. Regis. Defendant has submitted evidence which demonstrates
that plaintiff is not qualified for the positions of assistant
district sales manager and district sales manager because she
lacks sales experience, and defendant has
shown that the former St. Regis positions of marketing manager
and product manager do not exist at Champion.
While plaintiff asserts that her current position is a "dead
end" job, she fails to buttress that assertion with evidence.
Defendant has demonstrated that at least three employees who
formerly have held the same position at Champion have received
promotions and advanced.
One of plaintiff's complaints is that she has had to educate
her co-workers and her supervisor as to her job status — a fact
that is not surprising given the dual title and nature of the
position. Plaintiff serves as both a marketing manager and as an
assistant to vice-president of order services.
C. Defendant was reasonably diligent, energetic and successful
in attempting to place plaintiff in a comparable position.
To determine reasonable diligence, courts examine the
defendant's actions and consider whether they are based on a good
faith and reasonable interpretation of the court order. See
Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc.,
689 F.2d 885, 889 (9th Cir. 1982). Courts have also considered, inter
alia, whether the defendant in face of the requirements of a
court order has neglected to marshal its own resources, to assert
its own authority, and to demand needed results from subordinate
individuals and agencies; and whether the defendant has
"displayed an evident sense of non-urgency bordering on
indifference." See Aspira of New York v. Board of Education of
the City of New York, 423 F. Supp. 647, 654 (S.D.N.Y. 1976).
There is no evidence before the court that the Aspira factors
apply to the defendant. Because of the merger of St. Regis and
Champion in January 1985 and subsequent reorganization of the
merged company, no position identical to plaintiff's former
position existed in July of 1987. The defendant searched in good
faith for an available position which would be comparable to
plaintiff's former position, and which would be one for which she
was qualified. On five separate occasions, plaintiff traveled to
the defendant's headquarters to meet with officials about
possible reinstatement positions. Approximately five months after
the Court of Appeals affirmed this court's June 1986 decision,
plaintiff began work in a sufficiently comparable position.