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LEES v. CASE-HOYT CORP.
December 23, 1991
MAXINE KILKENNY LEES, PLAINTIFF,
THE CASE-HOYT CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Larimer, District Judge.
This matter is before the court on defendant Case-Hoyt
Corporation's motion for summary judgment. Plaintiff Maxine
Lees filed this action against her former employer, Case-Hoyt,
alleging race and sex discrimination in violation of Title VII
of the Civil Rights Act of 1964. For the reasons stated below,
defendant's motion for summary judgment on the claim of wage
discrimination is denied, and defendant's motion for summary
judgment on the claim of retaliatory harassment is granted.
Plaintiff Maxine Lees, a black female, was hired by the
defendant Case-Hoyt Corporation as a customer service
representative ("CSR") on May 12, 1986, at a yearly salary of
$17,000. During most of her employment, the plaintiff was the
only black CSR working for the defendant. Soon after she was
hired, two serious problems arose. First, the plaintiff began
making numerous complaints to her supervisors that her salary
was low in relation to her experience and compared to the
salaries paid to the other CSRs, all of whom happened to be
white. Although the plaintiff did receive several raises over
the course of her employment, she continually complained that
her salary was too low. Second, in early 1987 the plaintiff
began arriving late to work, and her supervisors reprimanded
her for her tardiness on numerous occasions. Plaintiff
attempted to negotiate a solution, explaining that she had
recently become a single parent and that her two children
created many responsibilities for her in the mornings.
However, no solution was worked out and over the course of her
employment the problem intensified.
On January 12, 1988, the plaintiff filed a complaint with
the New York State Division of Human Rights (the "Division").
Plaintiff alleged wage discrimination on the basis of race and
color and that the defendant was retaliating against her for
complaining about her low salary by harassing her for coming
in late. The Division made a determination of "no probable
cause" on March 28, 1989. In the meanwhile, the plaintiff
continued to be reprimanded for arriving late. Finally, on
April 11, 1988, the defendant suspended plaintiff for two
days. When she returned on April 14, 1988 the plaintiff
After the Division rendered its decision, the Equal
Employment Opportunity Commission ("EEOC") conducted its own
investigation. The EEOC issued a decision that the evidence
did not establish violations of Title VII, on November 13,
1989. Plaintiff subsequently filed this complaint on February
12, 1990, alleging wage discrimination on the basis of race
and sex and retaliatory harassment.
The defendant is moving for summary judgment on two
grounds.*fn1 First, that plaintiff's claim of wage
discrimination on the basis of race is untimely or in the
alternative that it does not state a claim upon which relief
can be granted and that plaintiff has failed to establish a
prima facie case of wage discrimination. Second, that the
plaintiff has failed to establish a prima facie case of
A. Statute of Limitations
In a deferral state, such as New York, a complainant must
file a charge
with the EEOC within 300 days following the alleged
discriminatory event. 42 U.S.C. § 2000e-5(e). However, because
a deferral state is one that has its own agency through which a
complainant can seek relief from discrimination, Title VII also
"provides that no charge may be filed with the EEOC until 60
days have elapsed from initial filing of the charge with an
authorized state or local agency. . . ."*fn2 E.E.O.C. v.
Commercial Office Products Co., 486 U.S. 107, 110-11, 108 S.Ct.
1666, 1668-69, 100 L.Ed.2d 96 (1988). Consequently, in order to
fall within the 300-day limitation period "a complainant must
file a charge with the appropriate state or local agency, or
have the EEOC refer the charge to that agency, within 240 days
of the alleged discriminatory event . . ." Commercial Office
Products Co., 486 U.S. at 111, 108 S.Ct. at 1669 (citing
Mohasco Corp. v. Silver, 447 U.S. 807, 814, n. 16, 100 S.Ct.
2486, 2491, n. 16, 65 L.Ed.2d 532 (1980)).*fn3 In this case
plaintiff filed a complaint with the Division on January 12,
1988, and more than sixty days elapsed before the Division
completed its investigation and rendered a decision. Thus, for
plaintiff's complaint to be timely the alleged discriminatory
event must have occurred during the 240 days before January 12,
The defendant, relying on Labeach v. Nestle Company, Inc.,
658 F. Supp. 676 (S.D.N.Y. 1987), contends that for a claim of
wage discrimination the relevant discriminatory event is the
setting of the salary and consequently, the limitations period
started to run on May 1, 1986, the day plaintiff was told her
starting salary. Under this interpretation plaintiff's filing
on January 12, 1988 would be untimely. However, defendant's
contention is without merit. Although the general rule is that
the Title VII limitations period starts to run "on the date the
plaintiff receives notice of the allegedly discriminatory act,
[and] not the date the decision actually takes effect," Hale v.
N Y State Dep't of Mental Health, 621 F. Supp. 941, 942
(S.D.N.Y. 1985) (citations omitted), when an employee is
adversely affected "pursuant to a continuous practice and
policy of discrimination, the commencement of the statute of
limitations period may be delayed until the last discriminatory
act in furtherance of it." Miller v. International Tel. & Tel.
Corp., 755 F.2d 20, 25 (2nd Cir. 1985), cert. denied,
474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); see also Valentino
v. United States Postal Service, 674 F.2d 56, 65 (D.C. Cir.
1982). "In such circumstances if the charge has been filed no
later than 300 after the last act by the defendant pursuant to
its policy, the plaintiff may recover for earlier acts of
discrimination as well." Association Against Discrimination in
Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 275 (2nd
Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71
L.Ed.2d 847 (1982). Plaintiff contends that the defendant's
practice of paying her less than her white counterparts
constitutes a continuing violation.
It has consistently been held that a claim of wage
discrimination exists not only at the time of setting the
salary but also each time the employee receives unequal pay.
Satz v. ITT Financial Corp., 619 F.2d 738 (8th Cir. 1980)
(practice of paying discriminatory unequal pay occurs not only
when an employer sets pay levels, but as long as the
discriminatory differential continues); Bartelt v. Berlitz
School of Languages of America, 698 F.2d 1003 (9th Cir. 1983),
cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257
(1983) (policy of paying lower wages to female employees on
each payday constitutes a continuing violation); Jenkins v.
Home Insurance Co., 635 F.2d 310 (4th Cir. 1980) (continuing
violation ended only when plaintiff stopped working); Hall v.
Ledex, Inc., 669 F.2d 397 (6th Cir. 1982) (the discrimination
was continuing in nature with each check received); Schulte v.
State of New York, 533 F. Supp. 31 (E.D.N.Y. 1981)
(discriminatory pay practices under the EPA are continuing
violations); Clay v. Quartet Manufacturing Co., 644 F. Supp. 56
(N.D.Ill. 1986) (equal pay claim may continue as long as the
discriminatory pay scale is in force); but cf., Blesedell v.
Mobil Oil Co., 708 F. Supp. 1408 (S.D.N.Y. 1989) (plaintiff not
entitled to recover disparate salary earned prior to limitation
This line of authority is compelling and I believe that it
controls here. A wage scale, whether set out in writing or
not, that decreases the value of the work of an employee
because of her race or gender is precisely the type of policy
and practice that the continuing violation theory encompasses.
While each payment of a discriminatorily low paycheck is a
separate and distinct violation of Title VII, all such
payments are connected by the employer's continuing policy and
practice of paying an employee a lower wage because of their
race or gender. Defendant's argument that any salary
discrepancy that existed during the limitations period can be
attributed only to the initial salary setting decision is
unpersuasive. Defendant's contention and its reliance on
Labeach is premised on the Supreme Court's holding in United
Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52
L.Ed.2d 571 (1977). However, unlike the violation alleged in
Evans, wage discrimination is a violation that persists into
the limitations period and is not merely some effect of a
discriminatory act that occurred some time ago. As long as
plaintiff can support an inference of wage discrimination
during the limitation period her complaint is timely.
Consequently, the defendant's reliance on Labeach is misplaced.
Unlike plaintiff in this case, see infra, the plaintiff in
Labeach failed to produce any facts that suggested that he
suffered wage discrimination during the limitations period.
Labeach, 658 F. Supp. at 688.
Plaintiff filed a complaint with the Division in January
1988, and continued to receive paychecks through April 1988.
Although not stated explicitly it can be inferred that
plaintiff was being paid during the 240 day period before she
filed a complaint with the Division. Plaintiff has produced
evidence to support an inference of wage discrimination during
the limitations period. See, infra, § II.C. Consequently, the
plaintiff's claim of wage discrimination was timely filed with
B. Standard of Review of Title VII Claim on Summary Judgment
It is axiomatic that summary judgment is ordinarily
inappropriate in cases where intent and state of mind are at
issue. Montana v. First Federal Savings & Loan of Rochester,
869 F.2d 100, 103 (2nd Cir. 1989). However, "the salutary
purposes of summary judgment — avoiding protracted, expensive
and harassing trials — apply no less to discrimination cases
than to commercial or other areas of litigation." Dister v.
Continental Group, Inc., 859 F.2d 1108, 1114 (2nd Cir. 1988).
Summary judgment should be granted when "viewing the record in
the light most favorable to the nonmoving party . . . the
evidence offered demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law." Id., at 1114 ...