59 F.R.D. 515 (S.D.N.Y. 1973), 72 Civ. 2705, Kohn v. Royall, Koegel & Wells

Docket Nº:72 Civ. 2705.
Citation:59 F.R.D. 515
Opinion Judge:LASKER, District Judge.
Party Name:Margaret KOHN, Individually and on behalf of all other persons similarly situated, Plaintiff, v. ROYALL, KOEGEL & WELLS, Defendant.
Attorney:Harriet Rabb, Carol Bellamy, George Cooper, New York City, for plaintiff. Royall, Koegel & Wells, pro se; Norman Ostrow, Paul M. Hopkins, New York City, of counsel.
Case Date:March 05, 1973
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 515

59 F.R.D. 515 (S.D.N.Y. 1973)

Margaret KOHN, Individually and on behalf of all other persons similarly situated, Plaintiff,

v.

ROYALL, KOEGEL & WELLS, Defendant.

No. 72 Civ. 2705.

United States District Court, S.D. New York.

March 5, 1973

Page 516

Action wherein plaintiff alleged discrimination in employment. On motion of defendant to dismiss complaint and on motion of plaintiff to maintain action as a class action, the District Court, Lasker, J., held that complaint alleging discrimination in employment was not untimely, even though it was not filed within 210 days from date of act complained of, where plaintiff alleged that refusal of employment resulted from an ongoing pattern and practice of discrimination and sought to represent entire class of persons allegedly discriminated against, so that her individual grievance merely provided springboard from which to investigate defendant's alleged continuing violation with respect to class as a whole. It was further held that action could properly proceed as a class action on behalf of all women qualified for legal positions with defendant who had been or would be denied employment because of their sex where requirements of rule with respect to class actions were satisfied.

Motion to dismiss denied; motion for class action determination granted.

Page 517

Harriet Rabb, Carol Bellamy, George Cooper, New York City, for plaintiff.

Royall, Koegel & Wells, pro se; Norman Ostrow, Paul M. Hopkins, New York City, of counsel.

LASKER, District Judge.

During her second year in law school, plaintiff, Margaret Kohn, applied to Royall, Koegel & Wells, a large New York law firm, for a summer job. The latter interviewed her at the law school on November 17, 1970, but did not invite her to the firm for further interviews and did not extend her an offer of employment. On May 27, 1971, Kohn filed a complaint with the New York City Commission on Human Rights alleging that the firm's failure to hire her resulted from sex discrimination. On November 19, 1971, she filed a complaint with the Federal Equal Employment Opportunities Commission (‘ EEOC’ or ‘ Commission’ ). Kohn finally brought suit in this court on June 26, 1972.

The firm has moved to dismiss or, in the alternative, for summary judgment dismissing the complaint on the ground that this court lacks jurisdiction because Kohn's complaint with the EEOC was not timely. Kohn moves for a class action determination.

I. MOTION TO DISMISS.

Section 706(d) of Title VII of the 1964 Civil Rights Act, 78 Stat. 259, as amended, 42 U.S.C. § 2000e-5(e), required, as a jurisdictional prerequisite to federal suits alleging job discrimination, the filing of a complaint with the EEOC within a specified period of time. Since New York City has a commission which handles charges of discriminatory employment practices, the statutory time limit which is applicable to this case1 is 210 days from the act complained of.2 Since Kohn filed her EEOC complaint on November 19, 1971, it would normally be timely only if the act complained of occurred no earlier than April of that year.

Kohn argues that her EEOC complaint was timely for the following reasons: 1) The occurrence which is the basis of her complaint happened in April, 1971, or later; and 2) her complaint alleges a continuing violation.

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The first ground is clearly without merit. During her interview by the firm on November 17, 1970, Kohn was informed that, if the firm was interested in her application, it would notify her by letter within the following week. (Affidavit of John B. Loughran.) Furthermore, Robert A. Lindgren, a member of the firm, has submitted an affidavit documenting the practice commonly followed by large New York firms of conducting interviews and extending offers for the following summer by the 15th of December. (Affidavit in support of motion to dismiss.) It is extremely likely that, as would most well informed law students, Kohn concluded from the firm's failure to contact here by the end of the year they did not intend to extend her an offer. At any rate, her common sense must have intimated that fact to her well before the following April. Accordingly, unless the basis of Kohn's complaint is a continuing violation, rather than an isolated act, it must be dismissed as untimely filed.

We agree with defendant that, ordinarily, refusal to hire is not a continuing violation. Molybdenum Corp. v. EEOC, 457 F.2d 935 (10th Cir. 1972). However, where, as here, the complaining party alleges that the refusal of employment results from an ongoing pattern and practice of discrimination and seeks to represent the entire class of persons allegedly discriminated against, his or her individual grievance provides merely the springboard from which to investigate the employer's alleged continuing violation with respect to the class as a whole. The refusal to hire, which is isolated as to the individual, forms one item in an ongoing series of violations with respect to the class, the many elements of which are linked by their common source— employer discrimination. Defining continuing violation in this fashion does not thwart the purpose of the 210 day statute of limitations that the EEOC should have an opportunity to investigate and seek voluntary compliance and ‘ should only be required to investigate fresh discriminatory acts.’ Hecht v. Cooperative for American Relief Everywhere, Inc., 351 F.Supp. 305, 310 (S.D.N.Y.1972). The discriminatory pattern of which plaintiff complains is by definition ‘ fresh,’ since it is alleged to be continuing to this very day. This result is not a perversion of the class action device permitting an individual to revive a time barred claim by asserting the grievances of others.3 Rather, it is a way of defining the jurisdiction-conferring concept of continuing violation4 so as to carry out the underlying purposes of the Act.

Title VII contemplates the elimination of the major social ill of job discrimination through suits by individuals

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acting as private ‘ attorneys general’ .5Jenkins v. United Gas Corp., 400 F.2d 28, 31-32 (5th Cir. 1968); cf. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). This method of enforcement makes an individual grievance the spearhead of an attack of larger proportions, since the individual claimant takes on the mantle of the state in seeking to rectify wrongs against himself and others.6 Accordingly, an individual's claim, when it results from a pervasive discriminatory attitude, cannot be considered in isolation. As was held in Watson v. Limbach Co., 333 F.Supp. 754 (S.D.Ohio 1971), a case which is exactly on point, the statute requires ‘ at least an opportunity for plaintiff to prove that the alleged discrimination is of a continuous and ongoing variety.’ Id. at 766-767. See also Jamison v. Olga Coal Co., 335 F.Supp. 454, 458-459 (S.D.W.Va.1971); 7Culpepper v. Reynolds Metal Co., 296 F.Supp. 1232, 1235-1236 (N.D.Ga.1968), rev'd on other grounds, 421 F.2d 888 (5th Cir. 1970). 8

We recognize that the notion of continuing violation contains some danger of abuse. To prevent its being used to inflate the importance of frivolous or unrepresentative claims, an individual plaintiff who alleges a continuing violation against a class of persons should be required to have a clearly demonstrable stake in the class position, whether or not the case is brought as a class action.9 Kohn has met this requirement.

Accordingly, defendant's motion to dismiss or for summary judgment dismissing the complaint is denied.

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II. MOTION FOR A CLASS ACTION DETERMINATION.

Kohn seeks a determination that the suit may proceed as a class action on behalf of ‘ all women qualified for legal positions at Royall, Koegel and Wells who have been or would be denied employment because of their sex.’ (Complaint, III, 3.) Since the requirements of Rule 23(a) and (b)(2) (Fed.R.Civ.P.) are satisfied, the motion is granted.

A. Numerosity ( Rule 23(a)(1) ) .

Kohn claims that the putative class contains approximately 500 women who are recent graduates of or are currently enrolled in the nation's leading law schools or are members of the bar admitted to practice in the New York area.

The firm maintains that this definition is too broad and that, properly defined, the class is not too numerous to permit joinder. In support of this proposition, it advances several arguments.

First, the firm contends that since it extends offers to only 2.6% of all applicants, if the entire proposed class actually applied, only 13 of its members could complain of failure to receive an offer. A corollary to this argument is that only rejected women applicants who can be shown to have been superior to the males hired in their place are proper members of the class.

The argument misses the point. The intended effect of Title VII is to give each applicant an equal opportunity to be hired. To the extent that an employer discriminates on the basis of a...

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