United States District Court, Southern District of New York
March 22, 1991
LUCY E. CARTER, PLAINTIFF,
AT & T COMMUNICATIONS, DEFENDANT.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Plaintiff, a black woman, brings this action alleging
discrimination on the basis of race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
alleging various state law violations including breach of
contract, tortious inference with contract, negligent
infliction of emotional distress and defamation. Defendant has
moved to dismiss the complaint in its entirety or for summary
judgment on all counts pursuant to Fed.R.Civ.P. 56. Plaintiff
cross-moved for an order compelling discovery pursuant to Rule
37*fn1 or, in the alternative, for a continuance of
defendant's motion under Rule 56(f). For the reasons set forth
below, defendant's motion is granted in part, denied in part
and continued in part. Plaintiff is granted a 60-day
continuance in order to conduct limited discovery relating to
her Title VII claim.
It is undisputed that Lucy Carter ("Carter"), a 55-year old
black woman, was first hired by AT & T Communications ("AT &
T") in May 1957 and from 1972 to 1984 held the position of
Group Manager in an AT & T Traffic Service Position System
("TSPS") office in New York City. See Def. Rule 3(g) Stmt. ¶
1-2; Pl. Rule 3(g) Stmt. at 4. It is similarly undisputed that
plaintiff was never formally terminated by AT & T; rather, on
June 7, 1987 plaintiff accepted a new position at New York
Telephone. Id. Although the facts and events beginning in 1984
and culminating in plaintiff's transfer in 1987 are in dispute,
the parties' respective contentions can be easily summarized.
AT & T engages in an annual management appraisal process
through which managers are given annual performance ratings.
Moccia Aff. filed July 20, 1990 ¶ 6. The Office Manager
typically completes the appraisal and recommends a performance
rating which is subject to approval by the District Manager for
that office. Id. For
the year ending on November 30, 1984, Delores Thompson
("Thompson"), plaintiff's Office Manager, recommended a rating
of "G" or "Good" for plaintiff's work. Id. ¶ 7. The District
Manager, Thomas Mullen ("Mullen"), changed plaintiff's rating
from the "G" Thompson had recommended to a "G-", a rating which
is deemed less than satisfactory by AT & T. Id. ¶¶ 7-8 & Exh.
A. Under company policy, a G- rating requires that the employee
be placed on a six-month performance development plan with a
new performance evaluation to be performed after six months.
Plaintiff was placed on such a six-month plan, although the
exact beginning date of that period is unclear from the
In January 1985, Richard Moccia ("Moccia") replaced Delores
Thompson as Office Manager of the TSPS office where plaintiff
worked. Moccia Aff. ¶ 4. In June 1985, near the end of the
six-month performance development period, Moccia conducted a
review of plaintiff's records including the Operator
Observation Records she regularly prepared. Id. ¶ 10. He
alleges that he detected at least 30 incorrect false entries
for the preceding six months by comparing plaintiff's operator
observances with payroll time reports for operators in the
group she managed. Id. ¶ 11. Several of the discrepancies
involved instances where Moccia concluded that Carter had
entered operator observations at a time when either Carter or
the operator was not at work. Id. ¶ 13 & Exh. B. Moccia
interviewed several operators who confirmed to him that no
observations had been made on the dates recorded by plaintiff.
Id. ¶ 12.
Moccia claims that he and Acting District Manager David
McGuffey ("McGuffey") confronted Carter with the discrepancies,
informed her that her actions were in violation of AT & T's
Code of Conduct requiring accurate recordkeeping and gave her
the opportunity to explain which they state she was unable to
do. Id. ¶¶ 15, 17 & Exh. C.
On June 18, 1985, plaintiff was demoted to the position of
Operator, a non-management position at the level where
plaintiff had last performed satisfactorily. Id. ¶¶ 16, 18.
Plaintiff's position as Group Manager was thereafter filled by
a black female. Id. ¶ 20. In June 1985, seven of the nine Group
Managers in the office in which plaintiff worked were black.
Id. ¶ 19. AT & T alleges that plaintiff was an at-will employee
and that under the employee policies in force in 1984-85, cause
was not required to demote supervisory employees. Gonzales Aff.
In opposition to defendant's motion, plaintiff alleges that
in December 1984 Thompson informed her that her performance
appraisal rating for the year would be a G and that Division
Manager Charles Herman thereafter assured plaintiff that the G
rating would not be changed. Carter Aff. ¶¶ 6, 11. Plaintiff
denies that any discrepancies ever existed with respect to her
work. Id. ¶ 13. Plaintiff claims that she was never told that a
further six-month performance appraisal would be performed
after she received the G- rating. Id. ¶ 18. Plaintiff asserts
that unlike white employees, she was not given adequate time to
disprove the discrepancies Moccia had detected, that her
personal log book was "confiscated" while she was on vacation
in June 1985 making it impossible for her to respond to the
accusations and that Moccia refused her request to stay at her
desk after her scheduled work hours in order to review her
records. Id. ¶¶ 14-16, 19. Finally, plaintiff names three AT
& T supervisors who she states told her that no demotion would
occur without just cause. Id. ¶ 26.
On August 22, 1985 plaintiff filed a complaint with the New
York State Division of Human Rights ("DHR") alleging employment
discrimination on the basis of age, race and color. Cutlip
Aff., Exh. A. Plaintiff claims that a "supervisory employee" at
AT & T told her that her only option was to file a complaint
with DHR. Carter Aff.
¶ 29. DHR notified the Equal Employment Opportunity Commission
("EEOC") of Carter's complaint. Cutlip Aff., Exh. B.
On March 9, 1988 DHR held a fact-finding conference in which
Thompson, Moccia, Mullen, McGuffy, Michael R. Dacey, an
attorney for AT & T, and plaintiff participated. Id., Exh. C.
On September 29, 1988 DHR issued a finding of no probable
cause. Id., Exh. E. On September 30, 1988, after reviewing
DHR's findings, EEOC found that plaintiff's demotion "was
unrelated to unlawful discrimination based on age, race and
color" and dismissed her EEOC complaint. Id., Exh. F at 2. On
June 2, 1989 EEOC issued plaintiff a Right-to-Sue letter. Id.,
Exh. G. Plaintiff filed her complaint in this action on
September 5, 1989. AT & T filed its answer on December 15,
The original discovery cutoff date was May 11, 1990. On May
2, 1990 plaintiff in writing requested an extension. On May 8,
1990 the Court granted plaintiff a two-month extension for
discovery, from May 11, 1990 to July 11, 1990, with the
pretrial order due July 24, 1990 and final pretrial conference
to be held July 30, 1990.
Plaintiff conducted limited discovery. Plaintiff's First Set
of Interrogatories and First Request for Production of
Documents was dated July 2, 1990. Carter Aff., Exh. A.*fn3
By letter dated July 10, 1990, plaintiff requested another
extension of discovery. On July 11, 1990 the Court denied
plaintiff's request. On August 3, 1990 after the close of
discovery, AT & T served its responses to plaintiff's July 2
interrogatories and document requests. Carter Aff., Exh. 3.
Defendant objected to Interrogatory Nos. 1, 3-6, 9 and 11 which
requested inter alia the identity of persons involved in giving
plaintiff a G- rating, all guidelines regarding employee
appraisals both within AT & T and in the industry in general,
documents and facts pertaining to administrative or other
hearings regarding the G- rating and all documentation in AT &
T's possession concerning plaintiff not previously provided. In
answer to Interrogatory No. 9, however, AT & T stated:
Defendant will make available for inspection and
copying by plaintiff the "AT & T Communications
Code of Conduct" and "AT & T Communications
Manager's Personnel Guide."
Plaintiff seeks a continuance of defendant's summary judgment
motion in order to permit her to depose AT & T employees
including Moccia and to obtain additional documentary evidence.
The Court heard oral argument on the instant motions on
November 2, 1990 and by Memo Endorsed filed November 5, 1990
denied plaintiff's motion to amend her complaint which was made
after the close of discovery since plaintiff had shown
insufficient reasons other than delay for the motion.
The Court will treat AT & T's motion as one for summary
judgment since the parties have presented matters outside the
pleadings not excluded by the Court. Fed.R.Civ.P. 12(c).
1. Title VII Claim
Faced with a motion for summary judgment, plaintiff in a
Title VII/disparate treatment action must meet the initial
burden of submitting evidence establishing a prima facie case
of discrimination, thereby creating a presumption of
discrimination which, if unrebutted, would require a verdict in
plaintiff's favor. See Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248
, 253-54, 101 S.Ct. 1089, 1093-94, 67
L.Ed.2d 207 (1981). The elements of a prima facie case are that
plaintiff (1) belongs to a racial minority or is a member of a
protected class, (2) was qualified for the job and/or was
satisfying the employer's
normal requirements in his or her work,*fn4
(3) that despite
those qualifications, plaintiff was discharged or terminated in
that position, and (4) that in a typical termination case,
plaintiff was replaced by a non-minority worker.*fn5
McDonnell Douglas Corp. v. Green, 411 U.S. 792
, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973). The Second Circuit,
recognizing that identification of the protected class is
difficult in many cases, held in Meiri v. Dacon, 759 F.2d 989,
996 (2d Cir.), cert. denied, 474 U.S. 829
, 106 S.Ct. 91
L.Ed.2d 74 (1985), that Title VII does not require proof that
plaintiff was replaced by a person outside the protected
While the burden of persuasion remains on plaintiff
throughout a Title VII litigation, Burdine, 450 U.S. at 253,
101 S.Ct. at 1093, once plaintiff has presented her prima facie
case, the burden of production shifts to the employer to
articulate some "legitimate, nondiscriminatory reason for the
employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824.*fn7 If the employer articulates a legitimate,
nondiscriminatory reason in rebuttal, plaintiff must be given
the opportunity either (1) to show directly that "a
discriminatory reason more likely motivated the employer"
(i.e., a "mixed motives" case), Burdine, 450 U.S. at 256, 101
S.Ct. at 1095, or (2) to show indirectly that "the employer's
proffered explanation is unworthy of credence," id., and was in
fact a pretext for intentional discrimination (i.e. a "pretext"
case). See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at
1825.*fn8 A Title VII plaintiff can establish pretext with,
for example, direct evidence showing that the employer had a
subjective intent to discriminate or with indirect evidence
showing that employees of other races with similar employment
records were retained while plaintiff was not. See Kelly v.
American Fed'n of Musicians' & Employers' Pension Welfare Fund,
602 F. Supp. 22, 24-25 (S.D.N.Y.), aff'd, 795 F.2d 79 (2d
Cir. 1985). See also Rodriguez v. Board of Educ., 620 F.2d 362,
367 (2d Cir. 1980) (plaintiff's affidavit rebutting employer's
stated motives sufficient to create issue of fact for trial).
The Supreme Court recently noted that in Title VII actions:
[d]iscovery often will be necessary before the
plaintiff can know whether both legitimate and
illegitimate considerations played a part in the
decision against her.
Price Waterhouse v. Hopkins, 490 U.S. 228
, 247 n. 12, 109 S.Ct.
1775, 1789 n. 12, 104 L.Ed.2d 268 (1989). Plaintiff in this
action has alleged facts which support the first three elements
of a prima facie case under Title VII. She concedes, however,
that she was replaced as Group Manager by a black woman. Def.
Rule 3(g) Stmt. ¶ 12; Pl. Rule 3(g) Stmt. at 4. This deficiency
might entitle the employer to summary judgment if plaintiff was
unable to adduce any other facts in opposition to the motion
which indicated intentional discrimination or pretext. See
Davis v. New York City Health & Hosp. Corp., 640 F. Supp. 155,
159 (E.D.N.Y. 1986).
To make out her claim of intentional discrimination or
pretext, plaintiff asserts in her affidavit that "it was clear
to me through attitudes, actions, and comments made by Mr.
Moccia that he possessed a racial and/or color bias" and that
"said bias was the underlying grounds for my demotion." Carter
Aff. ¶¶ 21-22. Plaintiff also avers that there is an issue of
to whether she was replaced with a black woman "to cover up a
discriminatory demotion." Pl. Rule 3(g) Stmt. ¶ 14. These
allegations are not allegations of fact but are of a conclusory
nature. As a general rule, a party cannot defeat a motion for
summary judgment with conclusory allegations unsupported by
facts. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
By the same token, however, summary judgment shall only be
entered against the non-moving party "after adequate time for
discovery." See Celotex v. Catrett, 477 U.S. 317 at 322, 106
S.Ct. 2548 at 2552, 91 L.Ed.2d 265 (1986). Subdivision (f) of
Rule 56 of the Federal Rules of Civil Procedure,*fn9 allowing
a continuance for discovery, is applied with "a spirit of
liberality" as a safeguard against an improvident or premature
grant of summary judgment. See 10A Wright, Miller & Kane,
Federal Practice & Procedure § 2740 at 532 (1983).
The Hershman affidavit filed September 12, 1990 complies with
the requirements of Rule 56(f) as explained in Burlington Coat
Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926
(2d Cir. 1985). Although Carter, like the plaintiff in
Burlington Coat, waited eight months or more after filing her
complaint to serve her first set of interrogatories and
document requests, see id. at 925, unlike in Burlington, there
is reason in this case to believe that discovery by Carter's
attorneys was insufficient. Cf. id. at 926. Plaintiff's
interrogatories and document requests were not so "unduly
burdensome or expensive," Fed.R.Civ.P. 26(b)(1)(a)(iii), that
AT & T was justified in failing to be more responsive. See Glen
Eden Hosp., Inc. v. Blue Cross & Blue Shield of Michigan, Inc.,
740 F.2d 423, 428 (6th Cir. 1984) (district court abused its
discretion in denying continuance where defendant "had not been
extremely forthcoming in responding to [plaintiff's discovery]
requests"). Further more Carter has specifically identified at
least one AT & T employee she seeks to depose. Accordingly,
plaintiff must have the opportunity to conduct limited
discovery to support her claim of intentional discrimination or
For instance, plaintiff has alleged that white employees were
treated more leniently when similar discrepancies were detected
in their work. Once she has identified the white employees by
name, plaintiff must have the opportunity to inquire of AT & T
management whether they had knowledge of the transgressions and
permitted them to persist. See Garrett v. City & County of San
Francisco, 818 F.2d 1515, 1518-19 (9th Cir. 1987) (error for
district court to deny Title VII plaintiff's request for
discovery on issue of whether similarly situated firefighters
were treated differently on the basis of race). In addition,
plaintiff must have the opportunity to depose Moccia in an
effort to show that his appraisal of her was not conducted in
good faith. Cf. Sam Wong & Son, Inc. v. New York Mercantile
Exch., 735 F.2d 653, 678 (2d Cir. 1984) (permitting discovery
on issue of bad faith in action brought under Commodity
Exchange Act). Finally, plaintiff must have the opportunity to
determine whether there is any basis for believing that AT &
T's motives in selecting a minority replacement were unworthy
of credence, e.g., the minority employee could be shown to be
lacking in qualifications required by the job description.
Plaintiff must also be permitted limited documentary
discovery on the issue of AT & T's standards and procedures
governing employee appraisals and demotions. Cf. Burroughs
Wellcome Co. v. Commercial Union Ins. Co., 632 F. Supp. 1213,
1222-25 (S.D.N.Y. 1986) (granting 60-day continuance to permit
insurer to inspect files of insured's broker).
Accordingly, plaintiff is granted a 60-day continuance of the
motion for summary
judgment on her Title VII claim, commencing on the date of
entry of this opinion, in which to conduct limited discovery on
the issue of intentional discrimination or pretext. Cf. Reeves
v. Continental Equities Corp. of America, 912 F.2d 37, 43 (2d
Cir. 1990) (district court erred in not affording ERISA
plaintiff opportunity to obtain discovery of facts exclusively
within employer's knowledge). Defendant is ordered to produce
Richard Moccia for deposition at a time mutually convenient to
2. Pendent State Claims
Plaintiff's second cause of action in the complaint alleges:
That plaintiff's demotion was discriminatory, was
motivated by racial prejudice, was unjustified,
arbitrary and constituted a wrongful demotion
contrary to law and the public policy of the
Complaint filed Sept. 5, 1989 ¶ 28. This claim in substance
alleges a violation of N.Y. Executive Law § 290 et seq.
(McKinney 1982 & Supp. 1991). See Pl. Mem. of Law filed Sept.
12, 1990 at 10-14. Section 297(9) of the Executive Law,
however, requires an election of remedies:
Any person claiming to be aggrieved . . . shall
have a cause of action in any court of appropriate
jurisdiction . . ., unless such person had filed a
complaint hereunder or with any local commission
on human rights. . . .
N Y Exec. Law § 297(9) (McKinney 1982). Plaintiff's DHR
complaint charging employment discrimination in violation of
Article 15 of the Executive Law acted as an election of an
administrative remedy squarely within the scope of § 297(9).
Accordingly, summary judgment dismissing plaintiff's second
cause of action is granted as a matter of law. See Long v. AT &
T Information Sys., Inc., 733 F. Supp. 188
, 197-99 (S.D.N Y
1990) (collecting cases); Hunnewell v. Manufacturers Hanover
Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986); Koster v.
Chase Manhattan Bank, N.A., 609 F. Supp. 1191, 1196-97 (S.D.N Y
The Court denies defendant's motion for summary judgment on
plaintiff's third through seventh causes of action without
prejudice to renew the motion, on the same papers or otherwise,
upon close of the 60-day limited discovery period.
Defendant's motion for summary judgment dismissing the
complaint is granted with respect to Count 2. Plaintiff is
granted a 60-day continuance, commencing on the date of entry
of the opinion, in order to conduct limited discovery into the
issues raised by defendant's motion for summary judgment on
Count 1. Defendant's motion for summary judgment on Counts 3-7
is denied without prejudice to renew after 60 days.
IT IS SO ORDERED.