149 F.3d 148 (2nd Cir. 1998), 96-9707, Austin v. Ford Models, Inc.

Docket Nº:Docket No. 96-9707.
Citation:149 F.3d 148
Party Name:Gwendolyn O. AUSTIN, Plaintiff-Appellant, v. FORD MODELS, INC., a New York Corp., its chairpersons and officers, Marion T. Smith, individually, John Doe, individually, and Jane Doe, individually, Defendants-Appellees.
Case Date:July 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 148

149 F.3d 148 (2nd Cir. 1998)

Gwendolyn O. AUSTIN, Plaintiff-Appellant,


FORD MODELS, INC., a New York Corp., its chairpersons and

officers, Marion T. Smith, individually, John Doe,

individually, and Jane Doe,

individually, Defendants-Appellees.

Docket No. 96-9707.

United States Court of Appeals, Second Circuit

July 16, 1998

        Argued Nov. 24, 1997.

Page 149

[Copyrighted Material Omitted]

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        Gwendolyn O. Austin, Pro Se, Newark, New Jersey.

        Mary C. Mone (Christopher H. Jones, Hollyer, Brady, Smith, Troxell, Barrett, Rockett, Hines & Mone, LLP, on the brief), New York City, for Defendant-Appellee.

        Before: OAKES, WALKER, Circuit Judges, and BRIEANT, District Judge. [*]

        JOHN M. WALKER, JR., Circuit Judge:

        Gwendolyn O. Austin, pro se, appeals from the November 27, 1996 judgment of the United States District Court for the Southern District of New York (Kevin Thomas Duffy, District Judge ) (1) dismissing, pursuant to Fed.R.Civ.P. 12(b)(6), Austin's first amended complaint alleging employment discrimination on the basis of race and sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and employment discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (2) dismissing as abandoned Austin's claims of libel, slander, and "thwarting" of an Equal Employment Opportunity Commission ("EEOC") investigation; and (3) denying Austin's motion for leave to file a second amended complaint.

        We hold that the district court erred in dismissing Austin's claim of race (but not sex and age) discrimination in the payment of overtime and her claims of race and age (but not sex) discrimination in the allocation of staffing assistance. In light of the above, we also vacate the dismissal of Austin's claims of discriminatory discharge on the basis of race and age (but not sex).

        Accordingly, we affirm in part, vacate in part, and remand to the district court for further proceedings.


        The following facts are culled exclusively from Austin's pleadings, interpreted in the light most favorable to Austin. In September

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1987, defendant-appellee Ford Models, Inc. ("Ford"), a model agency, hired Austin, a black woman born in 1940, as a credit collection manager. Although Austin had no formal job description, her duties included verifying credit on new accounts, posting cash receipts, collecting outstanding balances, reconciling disputed accounts, mailing invoices, and handling bankruptcy claims. Austin was under the direct supervision of Michael Polesky, a white man who was Ford's Vice President and Treasurer.

        In 1992, a dispute arose between Austin and her supervisors over Austin's work load and salary. In June 1992, Ford transferred Austin's assistant, who had worked exclusively for Austin, to another department. As a result, Austin alleges that she had to perform unnecessary clerical work involving extra hours without additional monetary compensation, while other, non-black, employees were receiving overtime pay for their extra work. When Austin made proposals to streamline her work and thereby reduce her working hours, Ford rejected them. Instead, Polesky offered Austin the choice between receiving a 15% pay raise or having an assistant but taking a pay reduction. Austin chose the raise. Austin alleges, however, that other employees, none of whom were black, had assistants but were not asked to take a reduction in salary. In December 1993, Ford gave Austin an additional five percent raise. From July 1992 to January 1994, despite Austin's continued protests over "clerical overload" and uncompensated overtime, her job functions remained essentially unchanged. Austin characterized what happened thereafter as follows:

[i]n late January, 1994 I stopped working the extra hours, since I was not being compensated nor was I receiving any cooperation from management with respect to adjustments in my workload. As a result of Jerry Ford, Co-Chairman and Mr. Polesky's failure to make the necessary adjustments in my workload, the cash flow in the company suffered and a crisis developed. Consequently, top management became involved in making the collection calls. At this point I concluded that I was going to be scapegoated for the crisis in the department and management was going to get rid of me.

        In May 1994, Ford terminated Austin.

        In June 1994, Austin filed a timely charge of discrimination with the EEOC. She alleged race, sex, and age discrimination on the basis of the "unreasonable workload" she was given, the "extra hours" Ford forced her to work "without compensation," and her termination. In an affidavit filed with her EEOC complaint, Austin stated that most of her job responsibilities had been transferred to a 25 year-old white male, and that within a year and a half prior to her discharge, Ford had terminated three white female employees over 40 years of age, one of whom was replaced by a younger white man.

        In July 1994, Ford issued a letter and supporting information to the EEOC responding to Austin's charges of discrimination. Ford claimed that Austin was an "at-will employee" who had been fired because she "stopped doing her job in a competent manner and the accounts receivable function substantially deteriorated." Ford also took the position that its "employees at Ms. Austin's level do not receive 'overtime' pay but are expected to perform their duties even if additional hours are sometimes required." Finally, Ford pointed out that it had 61 New York employees, of whom 45 were female, 16 were racial minorities (including three black employees), and 24 were over the age of 40.

        In February 1995, the EEOC ruled that Ford had not violated either Title VII or the ADEA and concluded that Austin's discharge was "due, largely, to 'politics.' " Later in 1995, Austin brought this lawsuit naming Ford and various of Ford's top executives, including Co-President Marion T. Smith, as defendants. Austin attached several exhibits to her amended complaint, including the materials that she and Ford had submitted to the EEOC. The amended complaint alleged that defendants (1) violated Title VII; (2) violated the ADEA; (3) committed libel and slander by making false defamatory statements in response papers to the EEOC; and (4) "thwarted" the EEOC's investigation by deliberately "omi[tting] [ ] material facts" relevant to Austin's complaint in their response to the EEOC. As a result, Austin sought

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reinstatement, compensatory and punitive damages, and other relief.

        In July 1995, defendants moved to dismiss Austin's amended complaint on the basis, inter alia, that Austin could not state a claim for unlawful discrimination in her termination because her EEOC affidavit admitted that she had been terminated for poor performance. Austin cross-moved for leave to file a second amended complaint. The proposed complaint omitted Smith and the other individual defendants, did not include the EEOC affidavit with the critical admissions, and omitted the libel, slander, and "thwarting" causes of action. The proposed complaint did assert that Ford engaged in race, sex, and age discrimination in violation of Title VII and the ADEA by failing to provide Austin with overtime compensation, assigning her an unreasonable work load, and terminating her. Austin also sought to add a claim that Ford engaged in unlawful discriminatory practices in violation of section 296 of the New York Executive Law. See N.Y. Exec. Law § 296 (McKinney 1997).

        The district court granted defendants' motion to dismiss and denied Austin's motion for leave to file a second amended complaint. See Austin v. Ford Models, Inc., No. 95-CV-3731 (November 26, 1996). That court held that "a fair reading of [Austin's affidavit filed with her EEOC complaint] is that the corporation let Ms. Austin go for good and sufficient business reasons." The district court therefore dismissed all of Austin's Title VII and ADEA claims of discriminatory discharge. Id. at 2.

        Addressing the proposed second amended complaint, the district court deemed Austin's libel and slander claims as well as her claim against Smith abandoned because they were not included. The district court did not address Austin's claims of discrimination in the allocation of overtime pay and staffing, nor the proposed second amended complaint's omission of either the other individual defendants or the "thwarting" cause of action. Finally, in light of its dismissal of all of Austin's federal claims, the district court declined to exercise supplemental jurisdiction over Austin's proposed claim under section 296 of the New York Executive Law. Austin now appeals.


       I. Standard of Review

        In reviewing the district court's dismissal of Austin's complaint pursuant to Fed.R.Civ.P. 12(b)(6), we are "required to accept the material facts alleged in the complaint as true," and will vacate the dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Easton v. Sundram, 947 F.2d 1011, 1014-1015 (2d Cir.1991) (quotation marks omitted). Our review is de novo, see Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996), and we consider attachments to the pleadings as included therein. See Fed.R.Civ.P. 10(c); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991).

       II. Disparate Treatment in the Terms and Conditions of Austin's Employment

        Ford's allegedly discriminatory actions occurred after Austin turned forty, bringing her within the age category protected by the ADEA. See Johnson v. Mayor of Baltimore, 472 U.S. 353, 355, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985) (ADEA protects employees or...

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