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MORRIS v. NORTHROP GRUMMAN CORPORATION
February 17, 1999
JOHN MORRIS, MILES G. MERRITT, AND DOLORES MCCALL, PLAINTIFFS,
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
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
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.
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
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.
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
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.
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
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.
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
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
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
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
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
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
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
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
A. The Defendants' Motion to Dismiss the Title VII Claim of Plaintiff
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 ...