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MORRIS v. NORTHROP GRUMMAN CORPORATION

February 17, 1999

JOHN MORRIS, MILES G. MERRITT, AND DOLORES MCCALL, PLAINTIFFS,
v.
NORTHROP GRUMMAN CORPORATION, GRUMMAN AEROSPACE CORPORATION, ANDREW BALLOW, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, ANTHONY JESSEN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, JAMES GABRESKI, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, PAUL SIEGEL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WILLIAM TRILLO, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, LILLIAN DUBOIS, IN HER OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

      MEMORANDUM OF DECISION AND ORDER

Approximately three and a half years after the complaint was filed in this case, and after what can only be referred to as a contentious period of discovery including the filing of 251 docket entries, the Court is now prepared to rule on the seven pending motions submitted by the defendants.

On August 14, 1995, John Morris ("Morris"), Miles Merritt ("Merritt"), and Dolores McCall ("McCall") (collectively, the "plaintiffs"), filed their complaint against Northrop Grumman Corporation ("Northrop"), Grumman Aerospace Corporation ("Grumman Aerospace" or "Grumman"), Andrew Ballow ("Ballow"), Anthony Jessen ("Jessen"), James Gabreski ("Gabreski"), Paul Siegel ("Paul Siegel"), William Trillo ("Trillo"), and Lillian Dubois ("Dubois") (collectively, the "defendants").

This lawsuit arises from the plaintiffs' claims of employment discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., the New York Human Rights Law (the "Human Rights Law"), N Y Exec. Law § 296, and common law. The plaintiffs allege that the defendants "negligently, wantonly, recklessly, knowingly and purposefully . . . sought to deprive [them] of employment, position, title and pay through a pattern of discrimination, retaliation, misrepresentation, misinformation, fraud, harassment, character assassination, abuse and manipulation of laws, rules and regulations." (Am. Compl. ¶ 2.) The plaintiffs claim that this unlawful activity was undertaken knowingly with the intent to punish, silence, isolate, remove, and retaliate against them in violation of their constitutional, statutory and common law rights.

Presently before the Court are seven separately filed motions by the defendants. First, the defendants move pursuant to Rule, 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ.P.") ("Rule 12(b)(6)") to dismiss the Title VII claim of the plaintiff Miles G. Merritt's ("Merritt") on the basis that it is time-barred. Second, the defendants move pursuant to Rule 56 of the Fed. R. Civ.P. ("Rule 56") and Local Civil Rule 56.1 ("Local Rule 56") for an Order striking certain portions of affidavits filed in conjunction with the plaintiffs' opposition to the defendants motions for summary judgment. Third, the defendants move pursuant to Rule 56 for summary judgment dismissing the claims of Merritt. Fourth, the defendants move pursuant to Rule 56 for summary judgment dismissing the claims of Morris. Fifth, the defendants move pursuant to Rule 56 for summary judgment dismissing the claims of McCall. Sixth, the defendants move to strike the economic damage allegations of McCall. And seventh, the defendants move to sever and/or for separate trials pursuant to Rules 20, 21, and 42 of the Fed. R. Civ.P.

I. BACKGROUND

Many of the facts alleged in the plaintiffs' second amended complaint are outlined in the March 21, 1998 Memorandum of Decision and Order by this Court. While familiarity with the Court's prior opinion is presumed, a brief recitation of the facts alleged by the plaintiffs follows.

All three plaintiffs are African-Americans. Morris and Merritt are male, while McCall is a female. At the time the complaint was filed, the ages of Morris, Merritt, and McCall were 45, 51, and 48, respectively.

The defendant Northrop, is the successor corporation to the Grumman Corporation. The defendant, Grumman Aerospace is a wholly-owned subsidiary of Northrop Grumman. The defendant Ballow, is a Caucasian male employed by both Northrop and Grumman Aerospace as a Director of Material Operations. The defendant Jessen, is a Caucasian male employed by Northrop and Grumman Aerospace as a Director of Material Distribution. The defendant Gabreski, is a Caucasian male employed by Northrop and Grumman Aerospace as a Traffic Manager in the Traffic and Shipping Department of Material Distribution in the Material Operations Division. The defendant Siegel, is a Caucasian male employed by Northrop and Grumman Aerospace as a Director of Business Office Facilities Engineering. The defendant Trillo, is a Caucasian male employed by Northrop and Grumman Aerospace as a Manager in the Facilities Engineering Department. The defendant DuBois, an African-American female is employed by Northrop and Grumman Aerospace as the EEO director in the their EEO office and is responsible for the administration of their equal employment opportunity and affirmative action plans.

A. Miles Merritt

Merritt was hired by Grumman in August 1962 as a Saw Operator and Warehouseman in the Receiving Stores Department. In 1967, Merritt was promoted to a Staff Assistant in the Receiving and Stores Department. Subsequently, Merritt obtained a Bachelor of Arts degree in Economics and, in 1976, was promoted to the position of Facilities Analyst in the Material Handling Systems Department. Thereafter, Merritt was promoted to the position of Senior Facilities Analyst.

In 1977, Merritt applied for the open position of Manager of Receiving and Warehousing. The position was ultimately given to a Caucasian who Merritt asserts had less education. In 1986, Merritt applied for the open position of Manager of Receiving in the Receiving and Stores Department and participated in the interview process. Although Merritt believed he was eminently qualified for the position, as he claimed to have written most of the Department's procedures, he was not awarded the job. Rather, the position went to the defendant Jessen.

As a result of this incident, Merritt filed a charge of discrimination with the company's Human Resources office. No action was ever taken in response to this charge. According to Merritt, in 1988 or 1989, he was then transferred to the Shipping Department in retaliation for filing the charge.

From 1988 to 1993, Merritt claims to have received "excellent appraisals." During this period, Merritt consistently sought promotions for positions which were ultimately filled, he claims, by less qualified, less senior Caucasian applicants, including employees who were originally trained by Merritt.

In July 1993, Merritt was instructed by the defendant Gabreski to train Jack Schnurr ("Schnurr") so that Schnurr could take over his job duties. Merritt trained Schnurr as instructed, believing that he would be terminated if he failed to comply. In February 1994, Merritt's duties were transferred to Schnurr. Merritt was given "kitting" duties in the Distribution Department which required manual labor. He was allegedly advised that although his job title would remain the same, he might have to take a cut in pay and eventually, his title would be reduced.

On March 20, 1994, Merritt filed a charge of discrimination based on race, color, and age with the EEOC. Sometime in March 1995, Merritt was offered and accepted the position of Subcontract Property Controller. On March 12, 1995, the EEOC issued to Merritt a right to sue letter.

B. John Morris

Morris was originally hired in January 1978 as a Traffic Analyst in the Traffic Department in the Warehouse and Distribution Directorate of Grumman Aerospace. At that time, he had a Bachelor of Science Degree in Business Administration. In 1980, Morris obtained a diploma from the Academy of Advanced Traffic located in Manhattan. According to Morris, throughout his employment he received numerous compliments regarding his work both from his superiors and from companies doing business with his employer. Despite these accolades, he claims to have been repeatedly denied promotions, and title and skill code changes which would make him eligible for a wider variety of jobs, in favor of younger Caucasian employees with less formal training, education, and seniority.

While Morris asserts that at the time he was hired, he received training in a number of traffic-related fields, he claims that he was consistently denied training in the areas of International Shipping and Household Goods, as well as managerial training. In 1982, Harry Milne ("Milne"), a Caucasian employee who is seven years Morris' junior, received this training and was promoted to the position of Assistant Traffic Manager. Neither Ballow, Jessen, nor Gabreski participated in the selection of Milne. At the time of Milne's promotion, Thomas Lashinsky ("Lashinsky") was the manager of the Traffic Department. Lashinsky supervised both Milne and Morris for the four years prior to the 1982 promotion selection.

Subsequently, Milne decided to leave Grumman and it is alleged that he recommended Morris as his successor. Morris allegedly raised the issue of his promotion with both Robert Byrnes ("Byrnes"), the Director of Warehouse and Distribution overseeing the Traffic Department, and Lashinsky, the Traffic Manager of the Traffic Department. Morris was advised by both that the position would not be filled.

Morris continued to seek educational and departmental training in order to advance his career. Defendant Gabreski, who was hired as a Senior Traffic Analyst in 1982, was promoted to Assistant Traffic Manager in 1988. In 1990, Gabreski was then made Acting Traffic Manager with no posting of the position, an alleged violation of company policy. Prior to receiving these promotions, Morris alleges that Gabreski was given the same training requested by, and intentionally denied to Morris.

After Gabreski's second promotion, Morris again sought the position of Assistant Traffic Manager. Morris spoke with the defendant Jessen, the Director of Material Distribution, who oversees the Traffic Department and is the direct supervisor of the Traffic Manager, and Tom Jones ("Jones"), the Supervisor of the Traffic Department. Jones told Morris to speak with Gabreski, who in turn allegedly advised Morris that there would be no more promotions, title changes, or skill code changes.

In 1993, Morris spoke with the defendant Ballow, the Director of Material Operations who was Jessen's superior, regarding promotions. The meeting allegedly took place in October 1993. At that meeting, Ballow allegedly informed Morris that the company was not making any more promotions in the Traffic Department. Nevertheless, on or about January 26, 1994, Mike Charpen, a 29 year-old Caucasian male, was promoted to the position of Traffic Supervisor without the position being posted. The official announcement was allegedly made on a day when Morris was absent from work.

Shortly thereafter, Morris spoke with the defendant DuBois, the company's EEO director, and attempted to file a formal discrimination complaint. However, DuBois allegedly refused to accept the complaint and insisted that any such charge be filed with the Human Resources office. In February 1994, Morris filed his complaint with the Human Resources office.

According to Morris, the Human Resources office allegedly investigated the matter and concluded that the Material Operations Management had "acted improperly" in promoting Charpen rather than Morris. It further concluded that the EEO office had also acted improperly. Ballow, Jessen, and Gabreski were then allegedly instructed to rectify the situation. However, rather than promote Morris, the position of Traffic Supervisor was eliminated pursuant to a "reorganization of the Traffic and Shipping Department." Nevertheless, after the position was abolished, Charpen allegedly remained in the same office and performed the same duties. In April 1994, after his internal complaint was filed, Morris received his first and only negative review in sixteen years. On May 6, 1994, Morris filed discrimination charges based on race, color, and age, with the New York State Human Rights Commission — the charge was also cross-filed with the Equal Employment Opportunity Commission ("EEOC"). On September 26, 1994, Morris was given a 60-day notice of termination. It is alleged that no other employee in the Traffic Department received a similar notice.

On November 21, 1994, Morris was transferred to the Commercial Aircraft Division from which employees were being terminated. It is alleged that no other employee in the Traffic Department was reassigned. Notwithstanding this reassignment, Morris remained in the Traffic Department as a Traffic Analyst with the same duties as he had previously.

On November 28, 1994, Morris received a memorandum rescinding the 60-day notice of September 26, 1994 and a second memorandum terminating his employment as of March 30, 1995. This deadline was later extended to June 30, 1995. On March 27, 1995, the New York Human Rights Commission issued a finding of probable cause as to Morris' discrimination charges.

On June 23, 1995, Morris was advised that the Traffic Department would relocate to Melbourne, Florida in March 1996. As a result, he was told that his employment would be terminated in late 1995, with 60 days notice. Morris was not offered the opportunity to relocate to Florida or to any other position with the defendants. On the other hand, the defendant Gabreski was given the opportunity to relocate. Morris was never actually terminated by Grumman.

On August 2, 1995, the EEOC issued to Morris a right to sue letter. As of the filing of the Amended Complaint, Morris was still employed as a Traffic Analyst.

C. Dolores McCall

In 1992, McCall began to question her failure to be promoted and to receive salary increases. Although McCall claims to have consistently sought promotions, she asserts that she was repeatedly passed over in favor of younger Caucasian employees with less seniority and less qualifications.

In 1981 the defendants allegedly asked McCall to participate in a rotating job program in the Facilities Engineering Department, in which an individual would choose three business areas and then receive six months training in the selected areas. At the end of the rotation, each participant would choose one field with the guarantee of eventual promotion into that field. McCall agreed to participate. However, although she completed the program, she never received a promotion, and whenever she inquired as to her advancement, she alleges that she was simply told to wait.

In 1983, McCall received a Bachelor of Science degree in Marketing Management. In June 1988, McCall was selected to apply for one of several Building Manager positions. Although McCall was on a list of those selected for the promotion, she, unlike the others on the list, was never actually promoted. McCall allegedly inquired of her superiors, including the defendant Trillo, Manager of the Facilities Engineering Department since 1989, and the defendant Siegel, the Director of the Facilities Engineering Department, as to when she would be promoted. On each occasion, she was told to wait. According to McCall, Trillo and Siegel eventually responded to her inquiries "with laughter and scorn." McCall never received the promotion.

Since 1989, Trillo also allegedly promised McCall a promotion and a skill code change, based on her "excellent work performance" and her "excellent attendance record." However, McCall never received this promotion or skill code change. From 1989 until the time of her termination, McCall alleges to have received lower salary increases, based on percentage, than each of the other employees in the Facilities Engineering Department. When McCall complained to Trillo and Siegel seeking an explanation and a remedy, they allegedly refused to listen or take any action.

On May 5, 1993, Trillo and Siegel advised McCall that she would be terminated on May 21, 1993. As a result, McCall attempted to file a discrimination charge with DuBois at the company's EEO office. However, it is alleged that DuBois refused to accept the complaint and directed McCall to the company's Human Resources office.

On June 3, 1993, McCall was terminated by Siegel. At the time of her discharge, McCall was 46 years old and had the most seniority in her department. She was also the only African-American employee in her department. No other employee in that department was terminated.

On January 10, 1994, McCall filed a charge of race, color, age, and gender discrimination with the New York State Division of Human Rights (the "DHR") through the Nassau County Commission for Human Rights. The charges were cross-filed with the EEOC. On December 13, 1994, the DHR issued a finding of probable cause. On August 9, 1995, the EEOC issued a right to sue letter to McCall.

D. Relevant Procedural History

II. DISCUSSION

  A. The Defendants' Motion to Dismiss the Title VII Claim of Plaintiff
     Merritt

1. Rule 12(b)(6) Standard

On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court should consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial. notice may be taken." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also International Audiotext Network, Inc. v. AT&T Co., 62 F.3d 69, 72 (2d Cir. 1995); Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

It is not the Court's function to weigh the evidence that might be presented at a trial; the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the factual allegations of the complaint as true, see Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Leeds, 85 F.3d at 53; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1098 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989).

The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and that "[a]ll pleadings shall be so construed as to do substantial justice," Fed.R.Civ.P. 8(f).

The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal under Rule 12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, 416 U.S. at 236, 94 S.Ct. 1683).

It is within this framework that the Court addresses that ...


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