Law. She alleges that defendant illegally failed to promote her
on the basis of age discrimination. Defendant now moves to
dismiss the state law claim for lack of subject matter
jurisdiction, and for summary judgment and dismissal of the
Complaint in its entirety.
Plaintiff bases her complaint on Merrill Lynch's alleged
promotion of thirteen less-qualified but younger individuals
over a six-year period from March 1981 through April 1987. The
parties do not dispute the dates and occurrences of the
thirteen promotions; accordingly, the facts and circumstances
of these promotions will not be set forth here except as
necessary to the discussion of the instant motions.
Motion to Dismiss 3rd Claim for Lack of Subject Matter
Defendant moves to dismiss plaintiff's New York Executive Law
claim on the basis that the election of remedies doctrine
contained in Section 297(9) of New York Executive Law has been
interpreted to bar state claims if plaintiff has filed her
claim with the New York State Division of Human Rights
("SDHR"). Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541
N.Y.S.2d 780 (1st Dept), app. dismissed, 75 N.Y.2d 764, 551
N.Y.S.2d 903, 551 N.E.2d 104 (1989). In the instant case,
plaintiff filed a charge of age discrimination with the federal
Equal Employment Opportunity Commission (hereinafter "EEOC"),
as required of her under the ADEA. In accordance with EEOC
regulations, see 29 C.F.R. § 1601.13, and a work-sharing
agreement between the EEOC and the SDHR, the EEOC cross-filed
plaintiff's charge with the SDHR but retained jurisdiction over
the charge to conduct an investigation on the merits. Because
the EEOC did not act within 60 days on her charge, Samuel
withdrew her charge from the EEOC, as was her right, and filed
the instant action in federal court. The SDHR subsequently
dismissed her claim, at her request, on the ground of
"administrative convenience." Merrill Lynch challenged that
order as unauthorized and violative of the election of remedies
provisions of Executive Law § 297(9), but was denied relief.
See Merrill Lynch Pierce Fenner & Smith, Inc. v. New York State
Division of Human Rights and Janet A. Samuel, Index No.
25436/89 (Sup.N.Y.Co. June 22, 1990)). Because plaintiff no
longer has a claim before the SDHR, the election of remedies
doctrine contained in Section 297(9) of New York Executive Law
does not bar her state claim, and the Court accordingly denies
defendant's motion to dismiss the Third Claim.
Promotions which Plaintiff No Longer Disputes
The Court grants, as unopposed and for good cause shown, the
motion to dismiss those aspects of plaintiff's claims relating
to the promotions of Janette Samai in 1981; Katie Williams and
Sephton Fraser in 1983; John Killeen in 1985; Debora Coe and
Tania Schlesinger in 1986; and John Randolph, sometime during
the period from 1984 through 1986.
Statute of Limitations: ADEA Claims
Promotions which occurred more than 300 days before plaintiff
filed her administrative charge with the EEOC will ordinarily
be time barred under the ADEA, 29 U.S.C. § 626(d)(2), 633(b);
Miller v. International Tel. & Tel., 755 F.2d 20, 23 (2d Cir.
1985). This plaintiff filed her EEOC complaint on June 16,
1987. Accordingly, any claim based on a discriminatory denial
of a promotion which occurred prior to August 20, 1986, will be
time-barred under the ADEA, unless tolled.
Four of the six remaining alleged incidents of
discrimination, the promotions of Howard, Paramo, Loughran, and
Ferraro, occurred prior to August 20, 1986. However, plaintiff
urges that defendant's course of conduct constitutes a
"continuing violation," and thus that the filing of a complaint
within 300 days after the last instance of such practice
renders timely each of the charges based upon that practice.
Plaintiff's Memorandum in Opposition
to Motion for Summary Judgment, at 11 (citing Kohn v. Royall,
Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y. 1973), appeal
dismissed, 496 F.2d 1094 (2d Cir. 1974); EEOC v. Home Insurance
Co., 553 F. Supp. 704, 711-13 (S.D.N.Y. 1982)). Defendant argues
that the alleged failures to promote were discrete, isolated
incidents and therefore, there is no toll for the four failures
to promote that occurred prior to August 20, 1986.
The Court agrees with defendant that these incidents do not
constitute a "continuing violation." Only "compelling
circumstances" will warrant application of the continuing
violation exception. Blesedell v. Mobil Oil Co., 708 F. Supp. 1408,
1415 (S.D.N.Y. 1989) (quoting LaBeach v. Nestle Co.,
658 F. Supp. 676, 687 (S.D.N.Y. 1987)). As decided by several
district courts in this Circuit, a number of incidents of
failure to promote cannot, as a matter of law, constitute a
"series of related acts." Id. (citing Wingfield v. United
Technologies Corp., 678 F. Supp. 973, 979-820 (D.Conn. 1988)).
In this case, the desired positions themselves, although all
falling under the general category of "supervisory," were
located in different units of the operations area; the
promotion decisions were made by two different individuals: and
the decisions of whom to promote were based on different
criteria, depending on the area involved. Plaintiff 3(g)
Statement, ¶¶ 5, 7, 8, 9, 13; Defendant 3(g) ¶¶ 23, 26, 31, 39,
42, 49. Moreover, plaintiff does not claim that Merrill Lynch
maintains a discriminatory promotion policy or system. To the
contrary, she argues that in not promoting her, Merrill Lynch
failed to comply with its own promotion policies. Plaintiff
3(g) Statement, ¶¶ 8, 11 (citing Merrill Lynch Supervisor's
Manual at pages III-1, IV-1).*fn1 Accordingly, the claims
based on ADEA for the promotions of James Howard and Elena
Paramo, Michael Loughran, and Loretta Ferraro are time-barred.
Time Bar under New York Executive Law § 296.
The statute of limitations under New York Human Rights Law is
three years from the date on which the cause of action accrued.
Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461
N.Y.S.2d 232, 239, 448 N.E.2d 86, 92 (1983); Patrowich v.
Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, 604 (1st Dep't
1984), aff'd, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11
(1984). The accrual date of a claim based on the discriminatory
denial of a promotion is the particular date on which the
position is filled to the exclusion of the plaintiff. Id.
Plaintiff initiated this action on or about April 10, 1989.
Therefore, only those claims based on promotions that occurred
after April 10, 1986, will be permitted to proceed. The Court
holds that the continuing violation doctrine does not apply to
the state claim for the same reasons that it does not apply to
the federal claims. Thus the Section 296 claim is not time
barred insofar as it is based on the Trivedi, DiLandro,
Loughran and Ferraro incidents, but is time-barred as to the
two remaining incidents, those involving Howard and Paramo.
Presence of Genuine Issues of Material Fact
As to the four surviving instances of allegedly
discriminatory promotions,*fn2 i.e., those of Trivedi,
DiLandro, Loughran, and Ferraro, the Court concludes that there
are genuine issues of material fact precluding summary judgment
in defendant's favor, including but not limited to: (1) whether
these individuals were better qualified and/or possessed
greater skills than Samuel; and (2) what were the motives of
defendant's officers in failing to promote
plaintiff. Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress and
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142
(1970) (moving party bears initial burden of demonstrating the
absence of a genuine issue of material fact); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89
L.Ed.2d 538 (1986); Rodriguez v. Board of Education,
620 F.2d 362, 367 (2d Cir. 1980) (summary judgment inappropriate vehicle
for examining motive and intent in employment discrimination
action); Warren v. Quality Care Service Corp., 603 F. Supp. 1174,
1181 (W.D.N.Y. 1985) (summary judgment used only
cautiously in employment discrimination cases, since questions
of discriminatory intent are often impossible to resolve in
advance of trial). As to each of these four individuals,
plaintiff has submitted affidavits and work evaluations raising
a genuine issue of material fact as to defendant's professed
innocent motivation that these individuals were more highly
qualified than Samuel. See Affidavit of Katie L. Williams,
dated October 31, 1990, ¶¶ 8, 9, 10, 11, 13, 14, 15; compare
Employee Performance Appraisal of Janet Samuel, dated 11/25/86
(attached as Exhibit H to Affidavit of Janet Samuel, dated
October 29, 1990 (hereinafter "Samuel Aff."), with Employee
Performance Appraisal of Loretta DiLandro, dated 11/25/86
(attached as Exhibit K to Samuel Aff.); compare Employee
Performance Appraisal of Janet Samuel, dated 2/29/84 (attached
as Exhibit D to Samuel Aff.) with Employee Performance
Appraisal of Loretta Ferraro, dated 1/5/84 (attached as Exhibit
N to Samuel Aff.) and with Employee Performance Appraisal of
Michael Loughran, dated 10/1/84 (attached as Exhibit 0 to
Defendant asks the Court to disregard the testimony of Katie
Williams as "biased" and "subjective." Defendant's Reply Brief
at 20 n. 7. The Court declines to do so at this stage of the
litigation. Credibility determinations are inappropriate on a
summary judgment motion. Fed. R.Civ.P. 56(e); see Investors
Ins. of America v. Dorinco Reinsurance, 917 F.2d 100 (2d Cir.
1990) (weighing of credibility of parties' witnesses
impermissible on motion for summary judgment). Defendant has
not carried its burden of demonstrating the absence of genuine
material factual issues for trial. Accordingly, its motion for
summary judgment is denied.
Plaintiff's claims are dismissed insofar as they are based on
the Samai, Williams, Fraser, Killeen, Coe, Schlesinger,
Randolph, Howard and Paramo incidents; plaintiff's ADEA claims
are dismissed with respect to the Loughran and Ferraro
incidents; in all other respects defendant's motions for
dismissal and summary judgment are DENIED.
The attorneys are to appear for a pre-trial conference on
Friday, May 24, 1991 at 2:00 p.m. in Courtroom 2704.