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KEUM CHOI v. CHEMICAL BANK

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


September 30, 1996

KEUM S. CHOI, Plaintiff, against CHEMICAL BANK, Defendant.

The opinion of the court was delivered by: BATTS

MEMORANDUM and ORDER

 DEBORAH A. BATTS, United States District Judge.

 Keum Choi brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, against his employer Chemical Bank ("Chemical" or "the Bank"). Chemical has moved to dismiss this action pursuant to 28 U.S.C. § 1958(d), and Rules 4(m), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure. In the alternative, Chemical moves to dismiss particular claims on the grounds that they are time-barred under § 2000e-5(e) of Title VII.

 I. BACKGROUND

 A. Plaintiff's Discrimination Complaint

 Chemical hired Keum Choi ("Plaintiff") on February 7, 1971, *fn1" as a Tax Specialist. (Yoeh Aff. Exs. A, N.) On December 10, 1990, Plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") alleging that Chemical discriminated against him on the basis of his race (Asian) and national origin (Korean). (Yoeh Aff. Ex. A.) At the same time, Plaintiff filed a Complaint with the Equal Employment Opportunity Commission ("EEOC"). (Id. ; Charge No. 16G-91-0686.) In his NYSDHR complaint, Plaintiff alleged that on October 29, 1990, he asked the vice president of his department for a promotion and salary increase but was denied because of his race and national origin. (Id.) The vice president's stated reason for not granting the promotion was Plaintiff's language barrier. (Id.)

 On September 24, 1991, Carlos Miranda, a NYSDHR investigator, conducted a fact-finding conference. (Yoeh Aff. P 4.) At the Conference, Plaintiff was represented by his counsel, Alice Eichen-Winslow. (Id.) Several Chemical employees also attended. (Id.) After an investigation, NYSDHR issued a Determination and Order dismissing Plaintiff's claim, finding no probable cause to believe that Chemical had engaged in the unlawful discriminatory practice Plaintiff alleged. (Yoeh Aff. Ex. B.) The investigation revealed that Chemical had promoted a person of Asian and Korean descent to the position for which Plaintiff had applied. (Id.) The investigation also revealed that Plaintiff had earlier been advised that his communication skills needed improvement. (Id.) The EEOC concurred with the NYSDHR decision and issued a right-to-sue letter on March 25, 1993. (Yoeh Aff. Ex. C.)

 B. Application for Court Appointed Counsel

 On June 22, 1993, Plaintiff commenced this action by filing a Summons and Complaint. (Yoeh Aff. Ex. N.) At that time, Plaintiff paid the $ 120.00 filing fee and filed an In Forma Pauperis application seeking court appointed counsel. The Honorable Lawrence M. McKenna, U.S.D.J., denied the application without prejudice by memorandum endorsement filed June 30, 1994. (Yoeh Aff. Ex. D.) Plaintiff then proceeded pro se until roughly October 12, 1995, when he retained counsel. (Pl.'s Mem. Law at 3; *fn2" Yoeh Reply Aff. P 3.)

 In his application for appointment of counsel, Plaintiff stated that he had not received money from business or self-employment, pension or annuities, or any other enumerated source within the past year. Plaintiff did not respond to a question asking for the name of the applicant's last employer and the amount of salary. Plaintiff listed a car worth $ 1,200.00 as his only valuable asset, and listed two bank accounts with a total balance of $ 1,450.00. (Yoeh Aff. Ex. D.)

 In fact, on June 21, 1993, the date of his application, Plaintiff was employed by Chemical Bank, earning $ 30,050.00 annually. (McQuade Aff. P 3.) At that time, Plaintiff had a balance of $ 46,070.00 in a ChemPlus Checking Account; $ 20,253.00 in a Chemical Money Market IRA Account; and approximately $ 27,000.00 in a Chemical Savings Incentive Plan (401K). (Yoeh Aff. Exs. F-H.) Department of Motor Vehicle records show that Plaintiff had four vehicles registered in his name at the time of his application, (Id. Ex. I), and a Westlaw "Info America" database search revealed that Plaintiff and his wife own a piece of property in Monroe County, Pennsylvania. (Id. Ex. K.) In addition, Plaintiff represented on a Chemical Quick Home Secured Application dated May 11, 1993, that he owned a house at 32 Revere Avenue, Emerson, New Jersey, and earned "80G" from his laundromat business (Id. Ex. L.)

 C. The Complaint Before This Court

 On four separate occasions, Plaintiff requested that the Court extend the time for him to serve the Summons and Complaint upon the Bank, on the grounds that he was suffering from a serious illness. (Yoeh Aff. Exs. O-R.) The court's final extension required service on Chemical by June 16, 1995. (Id. Ex. O; Pl.'s Mem. Law at 3.) Plaintiff served the Bank on June 16, 1995, with the Summons and a new Complaint under the same caption. This new Complaint included additional charges of discrimination not included in the original Complaint filed with the Clerk of the Court. (Id.) Plaintiff claims that he filed this second, new Complaint with the Court on June 16, 1995. (Pl.'s Mem. Law at 3, 8.) There is no record of anything being filed with the Court on that date; however, Plaintiff filed an affidavit of service with the Court on June 21, 1995, with the Summons and new Complaint attached.

 In addition to the original allegations, the new Complaint alleges that, "throughout the course of Plaintiff's employment with Defendant, Plaintiff has been offered little or no opportunities for advancement with respect to his title, responsibility and/or salary, despite an exemplary performance and attendance record throughout the course of his employment and the availability of several openings in Defendant's company and Plaintiff's eligibility for same." (Yoeh Aff. Ex. U P 5.) The new Complaint also alleges that "Plaintiff believes that Defendant is still committing these discriminatory acts against him and will continue to do same unless action is taken by the court herein." (Id. P 11.) Plaintiff also requests punitive and compensatory damages, and a jury trial. (Id. at 3.)

 II. DISCUSSION

 Chemical seeks dismissal of Plaintiff's action in its entirety pursuant to: (1) 28 U.S.C. § 1915(d), on the ground that Plaintiff made material misrepresentations to the Court concerning his finances on his In Forma Pauperis application for the appointment of counsel; (2) Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure, on the ground that Plaintiff failed to comply with the Court's order to serve the Bank with the Complaint by June 16, 1995; and (3) Rule 4(m) of the Federal Rules of Civil Procedure, on the ground that Plaintiff failed to show good cause why he did not serve the Complaint within the 120-day window required by Rule 4(m). In the alternative, Chemical seeks dismissal of paragraphs five and eleven of the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that the claims therein are time barred under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(e) ("Title VII") and because Plaintiff has not exhausted his administrative remedies. In addition, Chemical moves to dismiss Plaintiff's request for compensatory and punitive damages, and his request for a jury trial, on the ground that Plaintiff's claims allege conduct that occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991.

 A. Plaintiff's Misrepresentations of Poverty

 Title 28, Section 1915(d) of the United States Code provides, in relevant part, that "the court may request an attorney to represent [a] person [who is unable to pay the cost of filing an action and who is] unable to employ counsel and may dismiss the case if the allegation of poverty is untrue." 28 U.S.C. § 1915(d). *fn3" Dismissal of a case with prejudice, in the context of Section 1915, is a harsh sanction that should be resorted to only in extreme cases. Christensen v. Bristol-Myers Co., 1990 U.S. Dist. LEXIS 541, No. 86 Civ. 0183, 1990 WL 6554, at *2 (S.D.N.Y. Jan. 22, 1990); Acevedo v. Reid, 653 F. Supp. 347, 348 (S.D.N.Y. 1986). The court has discretionary authority to dismiss a complaint, if, after granting leave to proceed In Forma Pauperis, it later determines that the affidavit of poverty is false. Allen v. Avon Prods., Inc., 1988 U.S. Dist. LEXIS 1378, No. 81 Civ. 6895, 1988 WL 18841, at *4 (S.D.N.Y. Feb. 22, 1988); Christensen, 1990 U.S. Dist. LEXIS 541, 1990 WL 6554 at *1. A complaint should not be dismissed unless the court first finds that Plaintiff acted in bad faith and intentionally misrepresented his financial status. Christensen, 1990 U.S. Dist. LEXIS 541, 1990 WL 6554 at *2 (citing Harris v. Cuyler, 664 F.2d 388 (3d Cir. 1981)). Even after so finding, however, dismissal is within the discretion of the court based on all of the circumstances. Id.

 In this case, the alleged misrepresentations include Plaintiff's failure to disclose income from a laundromat business, his salary at Chemical, real estate, three automobiles, and approximately $ 93,000.00 in three different Chemical accounts. (Yoeh Aff. Exs. E-K.) The financial aptitude and experience of Plaintiff suggests that the misrepresentations on his application were intentional. *fn4" Christensen, 1990 U.S. Dist. LEXIS 541, 1990 WL 6554 at *2.

  Nevertheless, the court in Christensen found that outright dismissal would be too harsh a remedy despite a finding that the plaintiff intentionally misrepresented her assets. Id. at *2-*3. The Christensen court did, however, revoke the plaintiff's In Forma Pauperis status. Id. In this case, Plaintiff paid his $ 120.00 filing fee and thus was not proceeding In Forma Pauperis. See 28 U.S.C. § 1915(a). Further, Plaintiff's application for court-appointed counsel was denied by Judge McKenna and the Plaintiff proceeded with this action pro se. Hence, neither the Court nor Chemical has been prejudiced by Plaintiff's application. Despite Plaintiff's substantial and reprehensible misrepresentations on his application, the Court, pursuant to its discretion under section 1915(d), declines to dismiss the action on that ground.

 B. Allegations of Failure to Serve in a Timely Manner and Improper Service

 Chemical also seeks dismissal pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, arguing that Plaintiff did not serve the Summons and Complaint within the 120-day period provided therein and failed to show good cause for the delay. Rule 4(m) sets the time for service of the Summons and Complaint at 120 days from the time of filing and provides that failure to comply will result in dismissal absent a showing of good cause for non-compliance. *fn5" The 120-day period may be extended pursuant to Fed. R. Civ. P. 6(b), *fn6" which is the general provision of the Federal Rules allowing a Court, in its discretion, to extend a deadline. Acot v. New York Med. College, 153 F.R.D. 517 (S.D.N.Y. 1993); 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1137, at 392 (2d ed. 1987).

 A district court has wide discretion to grant an enlargement of time, Yonofsky v. Wernick, 362 F. Supp. 1005, 1014 (S.D.N.Y. 1973), with or without motion, if the request is made within the expiration period or as extended by previous order. 4 Wright & Miller, supra, § 1165. In this case, Plaintiff explicitly asked for an extension of time in which to serve the Summons and Complaint, and the Court granted each extension by memorandum endorsement. Supporting documentation from Plaintiff's attending physicians accompanied each request. Sufficient justification was provided, and the Court did not abuse its discretion in granting these extensions. Upon the final request dated April 21, 1995, the Court required service by June 16, 1995, or dismissal of the action. Plaintiff complied with the April Order. Rule 6(b)(1) does not require that a request be made by motion, and the regular practice in this district is to rule on such requests by memorandum endorsement. See Fed. R. Civ. P. 6(b)(1) (with or without motion or notice).

 Chemical also contends that service was improper because Plaintiff served a new Complaint, as opposed to the original Complaint that had been filed with the Clerk on June 22, 1993. Plaintiff submitted a copy of the new Complaint attached to his Affidavit of Service, which was filed with the Court on June 21, 1995. The Affidavit of Service reflects that Plaintiff effected service on Chemical on the deadline, June 16, 1995. The second Complaint reasserts the allegations in the original Complaint, and adds an allegation of ongoing discrimination.

 Plaintiff was a pro se litigant at the time of service. While the right to proceed pro se does not exempt a party from compliance with relevant rules of procedural and substantive law, that right should not be impaired by harsh application of technical rules. Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983). A pro se plaintiff, particularly one bringing a civil rights action, should be afforded an opportunity "fairly freely" to amend his Complaint. Holmes v. Goldin, 615 F.2d 83, 84 (2d Cir. 1980). A plaintiff is free to amend the complaint once as a matter of course, any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). The Court is satisfied that Plaintiff properly amended his original Complaint.

 Chemical contends that the new Complaint was never filed with the Court and the original Complaint was never served, rendering service improper. In this case, it is unclear who stapled the second Complaint to the back of the proof of service, but if it had not been stapled, it would have been filed separately. *fn7" Furthermore, where an original Complaint is superseded by an amended Complaint, it is inappropriate to serve the original Complaint. *fn8" See, e.g., Nordic Bank PLC v. Trend Group, Ltd., 619 F. Supp. 542, 564 (S.D.N.Y. 1985). Although the Court is satisfied that Plaintiff properly served his second Complaint, Plaintiff shall file it with the Clerk of the Court, captioned as an "Amended Complaint," within ten days of the date of this Order.

 C. Subject Matter Jurisdiction over Ongoing Discrimination Claims

 Title VII has exhaustion and time requirements, discussed below, which divest a court of subject matter jurisdiction if not satisfied. 42 U.S.C. § 2000e-5(e); Butts v. City of N.Y. Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Plaintiff's second Complaint includes two counts alleging ongoing discrimination from the time of his hiring in 1971, to the filing of the Complaint in 1995. Plaintiff, by asserting ongoing discrimination claims, has added claims for which the 300-day filing period expired prior to the filing of his EEOC charge as well as claims that have not been exhausted because the acts occurred only after the filing of his EEOC charge. The Court will analyze these two categories of claims below to determine whether any of them may be maintained. *fn9"

 1. Discriminatory Conduct Occurring Before February 13, 1990

 A plaintiff in New York has 300 days in which to file a charge with the EEOC. 42 U.S.C. § 2000e-5(e); Butts, 990 F.2d at 1401. If a plaintiff fails to file a timely charge with the EEOC, then the claim is time-barred. 42 U.S.C. § 2000e-5(e); Butts, 990 F.2d at 1401. The 300-day EEOC filing limitations period can be tolled by evidence of a continuing violation, waiver, estoppel, or equitable tolling, thus allowing a district court to consider incidents occurring outside of the 300-day window. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994), aff'd, 50 F.3d 3 (2d Cir. 1995). "Under [the] continuing violation doctrine, where the defendant has 'engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation. In such circumstances, if the charge has been filed no later than 300 days after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well.'" Dukes v. Steinman, Boynton, Gronquist & Birdsall, 1994 U.S. Dist. LEXIS 10394, No. 93 Civ. 7044, 1994 WL 406090, at *2 (S.D.N.Y. July 29, 1994) (quoting Association Against Discrimination in Emp., Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981), cert. denied, 455 U.S. 988, 71 L. Ed. 2d 847, 102 S. Ct. 1611 (1982)). In this case, Plaintiff's Amended Complaint alleges ongoing discrimination. (Compl. PP 5, 11.) If Plaintiff's claims fall into the continuing violation exception, this Court may hear claims about incidents occurring between 1971, when Plaintiff began his employment, and February 13, 1990 (300 days before the EEOC charge was filed).

 Plaintiff's continuing violation claim, however, does not fall into this exception. "The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory lists, . . . or discriminatory employment tests." Carrasco, 858 F. Supp. at 31 (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994)) (emphasis in Carrasco). When the EEOC charge alleges only discrete incidents of non-promotion, as does Plaintiff's here, the continuing violation exception does not apply. See Carrasco, 858 F. Supp. at 31-32; Dukes, 1994 U.S. Dist. LEXIS 10394, 1994 WL 406090, at *3; see also West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995) ("The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern."). Accordingly, the continuing violation exception does not apply on these facts to toll the 300-day filing limitation.

 Plaintiff has not argued that the 300-day limitations period should be tolled based on waiver, estoppel or equitable tolling, and the Court has seen no evidence to suggest that these doctrines could apply. Accordingly, all claims based on acts of discrimination, memorialized in P 5, occurring before February 13, 1990 are time-barred, and will be dismissed.

 2. Discriminatory Conduct Subsequent to the EEOC Charge

 Because "[a] district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge", Butts, 990 F.2d at 1401, to allow Plaintiff's claims based on conduct subsequent to the EEOC charge to proceed, the court must find those subsequently occurring claims reasonably related to the conduct alleged to the EEOC charge. *fn10"

 Plaintiff's EEOC charge alleged that Chemical discriminated against him by not promoting him on October 29, 1990. In the Amended Complaint, Plaintiff alleges that Chemical did not give him sufficient opportunities to advance throughout the course of his employment, including subsequent to the filing of his EEOC charge. (Compl. PP 5, 11.) If the Plaintiff can show that the alleged discrimination occurring subsequent to the filing of the EEOC charge is reasonably related to his failure-to-promote claim, then the Court has subject matter jurisdiction over those claims, arising after the filing of the charge on December 10, 1990. Butts, 990 F.2d at 1401.

 The Second Circuit has recognized claims as reasonably related in three instances: where the later claim (1) would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, (2) alleges "retaliation by an employer against an employee for filing an EEOC charge", or (3) alleges "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.

 The first type of "reasonably related" claim is "essentially an allowance of loose pleading." Id. at 1402 (quoting Smith v. American Pres. Lines, Ltd., 571 F.2d 102, 107 n.2 (2d Cir. 1978)). Because many complainants do not have counsel when they file their EEOC charges, a stringent pleading rule might trap unwary grievants into an overly narrow theory of their cases. See Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979) ("we look not merely to the four corners of the often inarticulately framed . . . charge"), rev'd on other grounds, 447 U.S. 807, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). Moreover, since the EEOC charge merely serves to alert the EEOC to the discrimination from which Plaintiff is allegedly suffering, so that the agency can investigate and attempt a conciliation, see 42 U.S.C. § 2000e-5(b), neither the agency nor defendants are prejudiced by this "loose pleading" standard. See Butts, 990 F.2d at 1402. Thus, if Plaintiff's claims of discrimination, subsequent to the filing of the EEOC charge, would reasonably be expected to fall within the scope of the EEOC investigation, this Court may properly consider them. Id. at 1402.

 However, EEOC allegations that lack factual specificity may not serve as jurisdictional predicates for claims of subsequent discrimination in a federal complaint. Id. at 1403. This is so because "vague, general allegations" stymie the EEOC's procedures. The EEOC cannot be expected to investigate mere generalizations of misconduct, nor can defendants adequately respond to them. Id. ("Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boiler plate and Title VII's investigatory and mediation goals would be defeated.").

 In the EEOC charge, Plaintiff alleged a single incident of discrimination and described the circumstances surrounding his October 29, 1990 request for a promotion. (Yoeh Aff. Ex. A.) A reasonable EEOC investigation would begin with the October 29, 1990 incident and proceed accordingly. The NYSDHR Determination and Order makes clear that NYSDHR only investigated the October 29, 1990 failure to promote. The NYSDHR Determination states "the investigation did, however, reveal that the person promoted [sic] to the position for which the complainant applied, is Asian and Korean the same race and national origin as the complainant." (Yoeh Aff. Ex. B P 3.) Given the Plaintiff's specific allegation, a reasonable investigation would not have proceeded any further. The investigation also revealed that the incident in question was "the only promotion for which the complainant applied, within one year of filing his complaint." (Id. P 5.) *fn11" Plaintiff alerted the EEOC to a discrete incident of discrimination and this Court is unwilling to find that subsequent failure to promote incidents would fall within the scope of the investigation surrounding the October 29, 1990 incident. *fn12"

  Because Plaintiff's continuing violation allegations are not reasonably related to his EEOC charge, the Court lacks jurisdiction to hear any such claims based on post-charge conduct.

 D. Plaintiff's Demand for Compensatory Damages, Punitive Damages, and a Jury Trial

 The Civil Rights Act of 1991 does not apply retroactively to discriminatory acts occurring prior to November 21, 1991. Peele v. New York City Dep't of Social Services/Human Resources Admin., 1995 U.S. Dist. LEXIS 18226, No. 92 Civ. 3765, 1995 WL 728478 (S.D.N.Y. Dec. 8, 1995) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994)). Plaintiff concedes that he has no right to demand compensatory damages, punitive damages, or a jury trial, for incidents occurring prior to November 21, 1991. However, he requests that the Civil Rights Act of 1991 be applied to his claims of ongoing discrimination after this date. As discussed above, this Court does not have jurisdiction over the ongoing discrimination claims, and thus the Civil rights Act of 1991 cannot be applied to them.

 III. CONCLUSION

 Defendant's motion is granted in part and denied in part. Defendant's motion to dismiss the Complaint in its entirety for filing a false In Forma Pauperis Application and failure to serve the Defendant properly, is DENIED. Plaintiff's claims of ongoing discrimination alleged in paragraphs five and eleven of the Amended Complaint are hereby DISMISSED.

 Defendant's motion to strike Plaintiff's request for compensatory damages, punitive damages, and a jury trial is GRANTED.

 Plaintiff is ordered to file a copy of the second Complaint with the Clerk of the Court, captioned "Amended Complaint," within 10 days of the date of this Memorandum and Order.

 The parties are to appear for a pre-trial conference on November 15, 1996, at 10:00 a.m.

 SO ORDERED.

 DATED: New York, New York

 September 30, 1996

 DEBORAH A. BATTS

 U.S.D.J.


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