Butts v. City of New York Dept. of Housing Preservation and Development

• Decision Date: 24 March 1993
• Docket Number: No. 672,D,672
• Citation: 990 F.2d 1397
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 579, 61 Empl. Prac. Dec. P 42,146, 61 USLW 2643 Geneva BUTTS, Plaintiff-Appellant, v. The CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Defendant-Appellee. ocket 92-7850.
• Court: U.S. Court of Appeals — Second Circuit

Page 1397

990 F.2d 1397

61 Fair Empl.Prac.Cas. (BNA) 579,

61 Empl. Prac. Dec. P 42,146, 61 USLW 2643

Geneva BUTTS, Plaintiff-Appellant, v. The CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Defendant-Appellee.

No. 672, Docket 92-7850.

United States Court of Appeals Second Circuit.

Argued Dec. 8, 1992.

Decided March 24, 1993.

Eric Schnapper (Julius L. Chambers, NAACP Legal Defense and Educational Fund, Inc., C. Vernon Mason, New York City, of counsel), for plaintiff-appellant.

Alan G. Krams (Fay Leoussis, O. Peter Sherwood, New York City Corp. Counsel, of counsel), for defendant-appellee.

Before: MESKILL, Chief Judge, MAHONEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Plaintiff Geneva Butts appeals from an order of the United States District Court for the Southern District of New York (Louis J. Freeh, Judge ), dated July 7, 1992, dismissing in its entirety Plaintiff's employment discrimination action brought against the City of New York Department of Housing Preservation and Development (the "City") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, and state common law. Plaintiff, an African-American woman, alleges that the City denied her promotions and discriminated against her in the terms and conditions of her employment based on her race and sex.

The district court dismissed Plaintiff's complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Her various Title VII claims were dismissed on the grounds that they were either time-barred or had not been raised in her discrimination charge with the Equal Employment Opportunity Commission (the "EEOC"). The district court, relying on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d (1989), dismissed Plaintiff's § 1981 terms and conditions claims, since We affirm the district court's decision that the Civil Rights Act of 1991 does not apply retroactively to Plaintiff's § 1981 claims, and, thus, its dismissal of Plaintiff's § 1981 claims for discrimination in the terms and conditions of her employment. However, since we believe Plaintiff's complaint states a cause of action under Patterson as to her timely § 1981 promotion claims, we reverse their dismissal. We also reverse the dismissal of the two Title VII claims alleging that Butts was excluded from department reorganization meetings based on her race and sex, but affirm the dismissal of the remainder of her Title VII claims.

                under Patterson, a § 1981 cause of action will lie for discrimination in refusing to enter a contract but not for discrimination in contract performance.   The district court also dismissed her promotion claims, apparently because it found that the promotions would not have created a "new and distinct" relation between employee and employer as required by Patterson.   See id. at 185, 109 S.Ct. at 2377.   The district court further held that the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991) (the "Act"), which, largely to nullify the effect of Patterson, extended § 1981 to include promotion claims and other terms and conditions claims, applied prospectively only and therefore did not make Plaintiff's claims actionable.   The court also dismissed Plaintiff's state common law claims, but she does not raise this on appeal
                

BACKGROUND

The City hired Geneva Butts in April, 1972 as a Computer Systems Manager and has continuously employed her ever since. On November 22, 1989, Butts filed a charge of discrimination with the EEOC. The charge alleged that starting in October, 1987, the City systematically discriminated against her because of her race and sex in the terms and conditions of her employment. This was done, she alleged, by excluding her from meetings and duties to which her position should have entitled her, cutting her off from her supervisors, defaming her, and by denying her promotional opportunities. She claimed that notwithstanding her promotion in April, 1987 to the title of Acting Deputy Director of the Computer Center, she was denied any increased authority; that though placed in charge of the Computer Center from June to September, 1987, she only had ten telephone conversations over that period with the Deputy Commissioner to whom she reported; that from 1987 to the present, she was excluded from department reorganization meetings in which she believed she should have been included; and that starting in October, 1987, she was discouraged from applying for higher positions in the Department and her work performance was unfairly criticized. She further alleged that in November, 1989, the same month in which she filed her charge, the City, in a measure designed to reduce the number of African-Americans in its employ, was undertaking to move her group from Harlem to a location in midtown Manhattan.

The EEOC investigated Plaintiff's allegations and, on May 7, 1991, dismissed her charge. The EEOC found that the alleged relocation of the computer group from Harlem to midtown had not occurred. The EEOC also concluded that the rest of her allegations were time-barred, since they occurred in 1987, outside the 300-day limitations period for filing EEOC charges applicable to claims arising in New York. 42 U.S.C. § 2000e-5(e).

Butts filed the present action on August 5, 1991, and her amended complaint on March 16, 1992. She claimed that from 1987 on the City denied her promotions and discriminated against her in the terms and conditions of her employment based on her race and sex. She specified five instances in which she allegedly was denied promotional opportunities. Two of these promotion denials allegedly occurred in 1987. The next incident is said to have occurred in 1989, when she inquired into the possibility of her promotion to the newly-created position of Director of Systems Architecture, "but was not given a clear response." The fourth and fifth took place in May, 1990, and June, 1991, when, on each occasion, she applied for the vacant position of Butts also alleged that she continually was deprived of the responsibility and power her position entailed. She claimed that from 1987 to the present she was repeatedly denied access to her supervisors; that in 1987, although she was promoted from Deputy Director to Director, persons formerly her subordinates were placed at her level of responsibility; and that, in 1988, the City eliminated her duty as Computer Training Liaison and excluded her from a study of ways to improve the efficiency of the Department's information systems. Also, while dropping the earlier claim that the City was going to move her department from Harlem to midtown, she claimed that discrimination occurred when she was excluded from discussions about the proposed move.

Deputy Commissioner of the Office of Management and Administration, was never granted an interview, and the position went to a caucasian man.

The City moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). On July 7, 1992, the district court granted Defendant's motion in its entirety. The court ruled that the Title VII claims either were time-barred as occurring more than 300 days before the filing of the EEOC charge, or were absent from the charge entirely, thereby depriving the district court of jurisdiction to hear them. The district court dismissed Plaintiff's § 1981 claims on the ground that they all involved issues of contract performance, which are not actionable under Patterson. The court also ruled that the 1991 Civil Rights Act, which would have made any timely contract performance claims actionable under § 1981, did not apply retroactively. This appeal followed.

DISCUSSION

I. The Title VII Claims

The district court dismissed Plaintiff's Title VII claims on the grounds that a number of them were not filed within the 300-day period as required by 42 U.S.C. § 2000e-5(e), and the remainder were not included in the EEOC charge and therefore the court was without jurisdiction over them.

When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred. Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days. 42 U.S.C. § 2000e-5(e). Two of the five promotion claims in Plaintiff's complaint, and most of her claims of discrimination in the terms and conditions of her employment, allegedly occurred in 1987 and 1988. Since her EEOC charge was not filed until November 22, 1989, these claims are time-barred.

A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is "reasonably related" to that alleged in the EEOC charge. Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir.1985); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir.1984); Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981); Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir.1980). This exhaustion requirement is an essential element of Title VII's statutory scheme. As we noted in Miller v. International Tel. & Tel., 755 F.2d 20, 26 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985), with respect to an analogous EEOC charge requirement in the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.: "[t]he purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." See also Stewart, 762...