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MENDOZA v. SSC&B LINTAS

August 11, 1992

ROBERT E. MENDOZA, Plaintiff,
v.
SSC&B LINTAS, NEW YORK, Defendant.



The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Defendant SSC&B Lintas, New York ("Lintas") moves for summary judgment pursuant to Rule 56, Fed. R. Civ. P. dismissing plaintiff Roberto E. Mendoza's ("Mendoza") national origin discrimination claims under 42 U.S.C. § 1981, asserted in Counts II and V of the complaint, on the grounds that they are barred by the doctrine of res judicata and for an order pursuant to Rule 12(b)(6), Fed. R. Civ. P. dismissing the defamation claim asserted in Count III for failure to state a claim upon which relief can be granted. For the following reasons, the motion is granted.

 The Parties

 Mendoza is an individual born in Mexico who is now a citizen of the United States of America. Both of Mendoza's parents are of Mexican extraction. The complaint does not assert Mendoza's state citizenship or place of residence. Mendoza was employed by Lintas from February 1984 until August 1989 when he was terminated.

 Lintas is a corporation in the business of advertising. Lintas is incorporated and licensed to do business in the State of New York. Lintas has a principle place of business at One Dag Hammerskjold Plaza in New York City. Lintas is the successor in interest to Lintas, New York, an advertising concern which in February 1984 hired Mendoza as a paste-up artist.

 Prior Proceedings

 The complaint was filed on January 29, 1992 (the "Complaint"). The Complaint asserts claims against Lintas under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1991; 42 U.S.C. § 1981 ("§ 1981"); and for defamation and intentional interference with contract. Lintas moved to dismiss the § 1981 and defamation claims pursuant to Rule 12(b)(6), Fed. R. Civ. P. on March 13, 1992. On April 29, 1992, the return date of the motion to dismiss, the court converted the motion with respect to the § 1981 claims to one for summary judgment and enlarged the time for the parties to submit additional relevant documents. Following further submissions by the parties, oral argument was heard on June 3, 1992, at which time the motion was considered fully submitted.

 The Facts

 In this action, Mendoza alleges that Lintas discriminated against him on the basis of his national origin in violation of § 1981 and Title VII (Counts I, III and V). Additionally, Mendoza claims that Lintas's allegedly discriminatory discharge has compelled him to libel himself in applying for employment (Claim II) and that Lintas intentionally interfered with his right to contract with another employer (Counts IV).

 The following facts are undisputed except where otherwise noted.

 In 1984, Mendoza applied for the position of assistant art director ("AAD") with Lintas. He was interviewed by Marianne Millar ("Millar"), Vice President of Creative Services for Lintas, and was ultimately hired by Lintas in February of 1984 as a paste-up artist. Mendoza claims that he was assured that he would be promoted to the position of AAD within one year.

 Mendoza was not promoted within that time period (although he was subsequently promoted to AAD in April 1985, see Jaroslaw Supp. Aff. Ex. 4, at 2), although he claims that other less qualified Caucasian individuals with less seniority, including a Kenneth Evans ("Evans") were. Comp. PP6-7.

 On January 28, 1985, Mendoza filed an administrative complaint with the New York State Division of Human Rights (the "SDHR") alleging that by failing to promote him to the position of AAD, Lintas had discriminated against him on the basis of his Hispanic national origin in violation of Title VII (the "SDHR Complaint"). Comp. Ex. C. The SDHR Complaint specifically cited Evans's promotion on January 5, 1985 as "the most recent promotion" of a Caucasian individual with less seniority. Id. P4. The DHR Complaint was also filed with the Equal Employment Opportunity Commission ("EEOC").

 On October 30, 1987, the DHR issued a "Determination and Order after Investigation" dismissing the DHR Complaint, concluding that "there is "NO PROBABLE CAUSE to believe that [Lintas] has . . . engaged in or is . . . engaging in the unlawful discriminatory practice complained of." Jaroslaw Supp. Aff. Ex. 2, at 1. This finding was explicitly based on the lack of facts sufficient to support the SDHR Complaint's allegations of unlawful discrimination. See id. at 1-2. The order stated that the SDHR had considered the promotion of Evans over Mendoza, and concluded that "after reviewing the work and experience of both candidates, [Lintas] judged the second candidate more suited for the position." See id. On January 5, 1988, the EEOC adopted the SDHR's findings and conclusion of no probable cause and notified Mendoza of his right to sue within 90 days. See id. Ex. 3. Mendoza neither appealed the determinations of either agency nor acted on this right to sue.

 Mendoza alleges that, after he filed the SDHR Complaint, Lintas began to retaliate against him by failing to review him for annual raises, "future career possibilities" or promotion. Comp. P9. The Complaint also alleges that he performed the work of Art Director ("AD") but was paid at the rate of an AAD. Id. P11.

 On May 18, 1988, Mendoza filed a second complaint with the SDHR (the "Second SDHR Complaint"), this time charging that Lintas had discriminated against him on the basis of national origin and as a result of "systematic retaliation" by failing to consider him for or grant him pay raises or promotions for almost two years. See Jaroslaw Supp. Aff. Ex. 4. Appended as exhibits to the Second SDHR Complaint were various Lintas inter-office memoranda praising the work of advertising teams of which Mendoza was a member. See id.

 On June 7, 1988, the SDHR advised Lintas that it was conducting an investigation of the Second SDHR Complaint, and directed that Lintas submit specified documents and information within 15 days. See id. Ex. 5. Lintas's response to this request was received by the SDHR on August 31, 1988. See id. Ex. 6. In its response, Lintas unequivocally denied Mendoza's charges of national origin discrimination and retaliation, addressing the allegations of the Second SDHR Complaint in detail and maintaining that the failure to promote or grant Mendoza pay raises was due to his performance. See id. In support of its position, Lintas submitted an affidavit from Millar, who affirmed, among other things, that the failure to promote Mendoza was an "artistic judgment based on the respective art portfolios of [Mendoza and Evans]." Id. at Millar Aff. (Ex. A) PConclusion). Lintas also supplied the documents and information requested by the SDHR in the June 7, 1988 notice. Id. at Exs. B- E. Additionally, Lintas submitted the affidavits of Marian Monshen ("Monshen"), Senior Vice President and Group Creative Director for Lintas and Michael Shallette ("Shallette"), Executive Vice President and Executive Creative Director for Lintas. Monshen characterized Mendoza's work for her as, among other negative adjectives, "sloppy, incomplete and not thought through," and affirmed that he had problems complying with direct requests and had a high rate of absenteeism. Id. at Monshen Aff. (post-Ex. E) at 2-5. Monshen "completely denied" that Mendoza's national origin influenced her evaluation of his work in any way. Shallette affirmed that Mendoza had not received a raise or promotion because his performance did not merit such awards. Id. at Shallette Aff. (post-Ex. E) at 2. Shallette further specified various shortcomings, such as "as far as creative ideas are concerned, when Mr. Mendoza misses, he misses by a lot," and that "much of the hand-drawn work that he has produced has been barely presentable." Id. at 3.

 In or about August 1989, Mendoza was terminated from his position at Lintas. Comp. P15. According to the Complaint, no reason was given for his termination.

 On September 28, 1989, the SDHR notified Lintas to appear for a conference on October 25, 1989 in connection with the investigation of the Second SDHR Complaint. See id. Ex. 8. This notification also directed Lintas to provide additional documents and information before October 19, 1989. Lintas's time for providing the requested documents and information was ...


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