Counsel before filing this action as allegedly is required by Section 8-502(c) of the Administrative Code, and (b) seeks relief for actions which preceded September 16, 1991, the effective date of the NYCHRL. The arguments are without merit.
Section 8-502(c) of the Administrative Code requires persons bringing actions based upon Title 8 first to serve a copy of the complaint upon the Commissioner of Human Rights and the Corporation Counsel. As this Court previously has noted,
judges in this district have reached different conclusions as to whether the failure to do so, as defendant claims here, is fatal to a plaintiff's claim. This Court, however, is persuaded that it is not.
The issue is one of state law. In Bernstein v. 1995 Associates, 217 A.D.2d 512, 630 N.Y.S.2d 68 (1st Dept. 1995), the Appellate Division, First Department, held that the giving of notice to the Commissioner and the Corporation Counsel is not "a condition precedent to maintaining a valid cause of action under Title 8 of the Administrative Code." 217 A.D.2d at 515, 630 N.Y.S.2d at 71. Rather, the court characterized it as "a device by which the City Commission... and the Corporation Counsel would be apprised of any actions commenced under Title 8" and reversed the trial court's dismissal based on the failure to give notice. 217 A.D.2d at 516, 630 N.Y.S.2d at 72. Absent compelling indications that Bernstein would not be followed by the New York Court of Appeals, and there are none, this Court is obliged to give it great weight in determining the law of New York. Bernstein is consistent also with a number of decisions in this Court. E.g., Kim v. Dial Service International, Inc., 1997 U.S. Dist. LEXIS 66, No. 96 Civ. 3327 (DLC), 1997 WL 5902, at *7 (S.D.N.Y. Jan. 8, 1997); Luongo v. Nationwide Mutual Insurance Co., 1996 U.S. Dist. LEXIS 11186, No. 95 Civ. 3190 (MBM), at *3 (S.D.N.Y. Aug. 7, 1996); Persaud v. S. Axelrod Co., 1996 U.S. Dist. LEXIS 160, No. 95 Civ. 7849 (RPP), 1996 WL 11197, at *6 n.1 (S.D.N.Y. 1996). Accordingly, this Court holds that the giving of notice under Section 8-502(c) is not a condition precedent to the maintenance of an action under Title 8 of the New York City Administrative Code. In any case, defendant has failed to preserve the point, as it did not move for judgment as a matter of law on this ground at trial. Lambert v. Genesee Hospital, 10 F.3d 46, 53-54 (2d Cir. 1993).
Defendant's contention that the NYCHRL claim, to the extent it rests on events prior to September 16, 1991, should be dismissed is puzzling. The point was not raised in the pretrial order or at trial. In view of the plain language of FED. R. CIV. P. 12(h)(2), it has been waived and may not be asserted by post-trial motion. E.g., Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1989) (failure to state claim waived if not raised by end of trial); 5A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1392, at 763 (1990). In any case, there would be little or nothing to the argument. While plaintiff testified to some age related comments and to the loss of a raise prior to September 1991, the raise thus lost never was quantified. The crux of the case was plaintiff's demotion and pay cut, effective June 30, 1992, and her subsequent termination.
Defendant contends that there was insufficient evidence to prove age discrimination or retaliation.
Viewing the evidence in the light most favorable to the plaintiff, the jury was entitled to find the following:
In 1987, Mr. Naraoka, president of Catch Ball, told plaintiff that she should be satisfied with her annual raise because her salary was high for someone as old as she. Subsequently, Naraoka told her on a number of occasions that plaintiff was old and that he preferred a younger person in her position. (Tr. 96)
In 1988, plaintiff received a raise lower than that of a younger employee. Upon questioning it, she was told by Naraoka that she was old and that it therefore did not matter what he paid her. (Id. 98-99)
In a July 1991 memorandum, Naraoka advised plaintiff that he wanted her to work until age 62, that he wanted to replace her as vice president of Catch Ball, and that he desired her support. (Id. 100)
In June 1992, Naraoka removed plaintiff as vice president and cut her pay. (Id. 108) In 1993, plaintiff met with Naraoka, who told her that if plaintiff were in Japan, she would retire or do "clerk work" after the age of 55. When plaintiff protested that this was the United States, Naraoka reiterated his view. (Id. 114)
In April 1994, Naraoka flatly asked plaintiff when she would leave. (Id. 115) When she responded that she wanted to work as long as she was healthy and the company profitable, perhaps until age 67 or 68, Naraoka told her that he did not want an old person hanging around, that she was not to stay past the age of 62, and that he wanted her to resign. (Id. 116) Plaintiff said that she would not resign and that Naraoka would have to fire her. Naraoka responded that he would not fire her but wanted her to quit. (Id.) In June 1994, the defendant began altering plaintiff's job responsibilities by shifting more and more of her duties to a younger employee, a process that accelerated when plaintiff filed an EEOC complaint in November 1994 (Id. 117)
On June 27, 1995, plaintiff reached age 62. In September 1995, the EEOC issued a right to sue letter to plaintiff. Shortly thereafter, plaintiff became the target of claims, which the jury was entitled to find were untrue, that she had been abusive and disrespectful in the office. She received no annual raise in 1995. (Id. 123) Finally, in early 1996, plaintiff was terminated. (Id. 133)
This evidence went substantially uncontroverted at trial. The only witness called by defendant was Sally Lee, the co-worker at Catch Ball who gradually succeeded to plaintiff's responsibilities. Ms. Lee was in no position to dispute the various statements attributed by plaintiff to Naraoka, and the jury was not obliged to believe the little she did say.
In these circumstances, the jury was more than amply justified in finding both age discrimination and retaliation. Indeed, the defendant's contrary argument is frivolous.
Defendant's motion for judgment as a matter of law is denied in all respects.
Dated: February 18, 1997
Lewis A. Kaplan
United States District Judge