Equal Emp. Op. Com'n v. Kallir, Philips, Ross, Inc.

• Decision Date: 31 July 1975
• Docket Number: 75 Civ. 401.,No. 74 Civ. 3234,74 Civ. 3234
• Citation: 401 F. Supp. 66
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Josephine McGee, Plaintiff Intervenor, v. KALLIR, PHILIPS, ROSS, INCORPORATED, a New York Corporation, Defendant.
• Court: U.S. District Court — Southern District of New York

401 F. Supp. 66

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Josephine McGee, Plaintiff Intervenor, v. KALLIR, PHILIPS, ROSS, INCORPORATED, a New York Corporation, Defendant.

Nos. 74 Civ. 3234, 75 Civ. 401.

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

July 31, 1975.

COPYRIGHT MATERIAL OMITTED

William A. Carey, Gen. Counsel, William L. Robinson, Associate Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., Delores Wilson, Regional Atty., Dona Kahn, Associate Regional Atty., Paul J. Gontarek, Asst. Regional Atty., Equal Employment Opportunity Commission, Philadelphia Regional Litigation Center, Philadelphia, Pa., Ronald Copeland, Regional Counsel, Equal Employment Opportunity Commission, New York Regional Office, New York City, for plaintiff.

O'Dwyer & Bernstein, New York City, for plaintiff-intervenor; Brian O'Dwyer, Thomas A. Holman, New York City, of counsel.

Davis, Gilbert, Levine & Schwartz, New York City, for defendant; Edward S. Patterson, David G. Lehv, New York City, of counsel.

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

EDWARD WEINFELD, District Judge.

This action, which had its origin in a charge of sex discrimination in the payment of wages, is now narrowed to a charge of retaliatory conduct.

The action was commenced by the Equal Employment Opportunity Commission ("EEOC") against Kallir, Philips, Ross, Inc. ("KPR"), an advertising agency, charging that it suspended and later discharged Josephine McGee in retaliation for her filing a charge of sex discrimination against KPR and for her opposition to KPR's alleged unlawful employment practices in violation of section 704(a) of Title VII of the Civil Rights Act of 1964, as amended.¹ Josephine McGee (plaintiff) was granted leave to intervene.²

I

Plaintiff, at the time of her discharge, was employed as a senior account executive by defendant, which numbered among its clients The Upjohn Company, a pharmaceutical house. She first entered defendant's employ in 1967 as an administrative assistant and from time to time was promoted to positions of increased responsibility with commensurate salary increases. In December 1972, she was assigned to the Upjohn account under Jay Lilker, a senior vice president of defendant, who was the account supervisor, and John Kallir, president and principal stockholder of KPR, who was the management representative on the account.

Plaintiff, whose annual salary then was $18,000, learned that a male senior account executive was paid $25,000. On December 4th, she requested of Kallir that her salary be brought into parity with that of her male counterpart. Kallir advised plaintiff that the matter would be considered by defendant's executive committee in April 1973, prior to the sixth anniversary of her employment. Dissatisfied with the lack of immediate favorable action, plaintiff filed a charge of sex discrimination with the New York City Commission on Human Rights ("NYCCHR")³ against KPR based upon the salary differential. In connection with its investigation of the charges, NYCCHR requested an objective job description of plaintiff's position which, rightly or wrongly, she felt could not be obtained from the defendant. Plaintiff thereupon obtained from Phyllis Korzilius, the product manager at Upjohn Company who worked with plaintiff, a letter containing the necessary information.

On March 13, 1973, in accordance with NYCCHR procedure,⁴ a fact finding conference was held relative to McGee's claim, attended by Commission representatives, plaintiff, Kallir and other representatives of defendant, including its attorney. In response to Kallir's statement during the course of the conference as to the scope of plaintiff's activities, a Commission supervisor produced the Korzilius letter. The KPR representatives reacted with displeasure, to say the least; that they resented that plaintiff had contacted its client to obtain the letter admits of no dispute. From the time plaintiff first brought up the subject of alleged discrimination in salary on December 4th, followed by the filing of her complaint and up to her suspension, no KPR official expressed any displeasure because of her charge, or indicated that any action would be taken against her. She continued to perform her usual duties.

On March 26th, Kallir, without any discussion, handed plaintiff a letter which informed her that she was suspended from her duties but that her salary would continue. The stated reason for this action was:

"The protracted nature of our adjourned hearing before the Human Rights Commission; the course you've chosen to follow by involving various individuals, both on the agency's staff and at Upjohn; and your divisive behavior make it increasingly difficult for us to carry on our normal day-to-day activities and provide our client with the service they sic require."

The following day defendant circulated among its employees a memorandum which, among other matters, stated that it had granted a leave of absence at full pay to plaintiff; that while procedures dragged on at the NYCCHR, defendant saw "no reason at first why they should interfere with plaintiff's role in the agency. Increasingly, though, plaintiff has taken actions which could prove detrimental to our relationship with Upjohn. The agency-client relationship is so sensitive and dependent on complete mutual trust that we cannot allow it to be undermined through divisiveness or personal rancor. Thus, she left us no choice but to act as we did." Plaintiff perforce accepted the situation. She promptly notified the NYCCHR of her suspension and upon its request signed a new complaint on March 27th, charging the defendant with retaliatory action. On April 23, she filed a similar charge with the EEOC.⁵

Plaintiff was continued on leave of absence with pay until May 15, 1973, when defendant tersely wrote to her: "In view of the circumstances, we have decided to discontinue your checks." The "circumstances" were not stated. There had been no communication between plaintiff and defendant from March 26, when she was put on leave, to May 15th, when she was notified she would no longer be paid.

II

The issue, as noted at the outset, is whether the defendant suspended and later discharged plaintiff in retaliation against her for filing sex discrimination charges with the NYCCHR. Thus the merits of plaintiff's charge of sex discrimination are not before the court.⁶ Plaintiff contends she was discharged by defendant in retaliation for her having filed the sex discrimination charge and for assisting the NYCCHR in investigating this charge.⁷ The defendant denies that it was so motivated and contends that its action was a legitimate response (1) to plaintiff's conduct in involving the agency's client, Upjohn, in her charge by soliciting evidence from its employees, and (2) her disruptive actions at a preliminary presentation by the agency to Upjohn in early February 1973. The burden of proof is upon the plaintiff to sustain her claim by a fair preponderance of the credible evidence.⁸ Upon the entire evidence, including the demeanor of witnesses who testified at the trial, I find that plaintiff has sustained her burden of proof.

III

A

Originally, one of the reasons assigned by defendant in justification for plaintiff's discharge was that she had filed a charge of sex discrimination, and, in one instance, allegedly had urged an employee to file a similar charge. Defendant now concedes that absent disruptive conduct, of which there was no proof, plaintiff was within her legal rights in informing her co-workers that she had filed a claim of discrimination against defendant and that they had a right to do likewise. The defendant, as to this phase of its defense, now recognizes it "could not ... base its decision to discipline plaintiff because of this activity."⁹ However, despite this belated acknowledgment, the evidence requires a finding that one of the reasons for defendant's conduct was McGee's discussing her charge with other female employees. Section 704(a) of Title VII forbids "discrimination against ... employees for attempting to protest or correct allegedly discriminatory conditions of employment,"¹⁰ and it necessarily protects an employee from retaliation for merely advising fellow employees of their rights under the law. In discharging plaintiff, at least in part because she engaged in these protected activities, defendant violated the statute.

B

The defendant claims that its action was justified based upon plaintiff's conduct concerning the Upjohn account. Here defendant cites two incidents, her conduct (1) in obtaining the letter from Korzilius, Upjohn's product manager, and (2) at the presentation of an advertising program to Upjohn in early February when it is claimed she engaged in disruptive behavior which imperilled retention of that account.

The first claim can be readily disposed of as lacking in substance. The defendant contends that it properly discharged plaintiff because she requested the assistance of Upjohn employees¹¹ in obtaining evidence in support of her charge and sought to involve them in her controversy so that Upjohn would apply some pressure on her behalf. The defendant asserts that this was the primary cause for its action. Plaintiff had been requested by the NYCCHR to obtain an objective description of her job. There was nothing wrong or disruptive for plaintiff to request and obtain the letter from Korzilius, the Upjohn representative with whom she worked and who was familiar with her functions. Plaintiff's actions were circumspect; indeed, when plaintiff informed Korzilius that she had filed charges she asked Korzilius to keep it confidential. While the letter may have been an abrasive factor in the relationship between defendant and plaintiff, the defendant concedes that it had no effect on the client relationship.

Section 704(a) also prohibits employer retaliation because an employee assists or participates in...