Francis v. City of NY and HR Admin.

• Decision Date: 01 August 2000
• Docket Number: Docket Nos. 00-7286,00-7364
• Parties: (2nd Cir. 2000) H. GEORGE FRANCIS, Plaintiff-Appellee-Cross-Appellant, v. CITY OF NEW YORK and HUMAN RESOURCES ADMINISTRATION, Head Start Division (HRA Agency for Child Development), Defendants-Appellants-Cross-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 763

235 F.3d 763 (2nd Cir. 2000)

H. GEORGE FRANCIS, Plaintiff-Appellee-Cross-Appellant, v. CITY OF NEW YORK and HUMAN RESOURCES ADMINISTRATION, Head Start Division (HRA Agency for Child Development), Defendants-Appellants-Cross-Appellees.

Docket Nos. 00-7286, 00-7364

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 13, 2000

Decided: December 06, 2000

Appeal from an order of the United States District Court for the Eastern District of New York (John Gleeson, Judge) denying defendants-appellants-cross-appellees' motion to vacate the judgment against them and to dismiss for lack of subject matter jurisdiction.

AFFIRMED.

CHARMAINE M. STEWART, Rosedale, NY, for Plaintiff-Appellee-Cross-Appellant.

CHERYL PAYER, for Michael D. Hess, Corporation Counsel of the City of New York (Stephen J. McGrath and Diana Murray, on the brief), for Defendants-Appellants-Cross-Appellees.

Before: CARDAMONE, CALABRESI, and KATZMANN, Circuit Judges.

CALABRESI, Circuit Judge:

In the United States District Court for the Eastern District of New York (John Gleeson, Judge), plaintiff H. George Francis, a man of Jamaican national origin, won a jury verdict finding that the City of New York and its Human Resources Administration ("HRA") (collectively "defendants" or "the City") had discriminated against Francis by failing to promote him because of his national origin. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. After a retrial on damages, a second jury awarded Francis $75,000 in compensatory damages. The parties cross-appeal a number of the district court's decisions, including several that were reduced to judgment on September 28, 1999 (the "pre-judgment issues"). One issue - whether plaintiff's alleged failure to exhaust his administrative remedies deprived the district court of subject matter jurisdiction - was first broached by way of post-judgment motion. We raised nostra sponte the question of whether we have appellate jurisdiction over the pre-judgment issues, given that the first notice of appeal was filed on March 13, 2000, thirteen days after decision of the post-judgment motion but considerably more than thirty days after the September 28, 1999 judgment. On November 13, 2000 we heard oral argument but limited that argument to the questions of our appellate jurisdiction over the pre-judgment issues and the district court's subject matter jurisdiction over the one claim that went to the jury. Because decision of the former question may be affected by another appeal currently sub judice, this opinion addresses only the latter issue, concerning exhaustion of administrative remedies, a matter over which we undoubtedly have jurisdiction. See Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 403-04 (2d Cir. 2000) (holding that even when a post-judgment motion fails to toll the time to appeal from the judgment, the time to appeal the court's decision with respect to the post-judgment motion runs from the date that motion is decided). With respect to that issue, we affirm the district court's denial of the City's motion to vacate the judgment and to dismiss plaintiff's complaint for lack of subject matter jurisdiction.

Background

From April 1983 to May 1994, Francis worked in the Head Start Division of HRA, gaining two promotions during his tenure. In 1992, the position of Division Director became vacant, and Francis applied for the opening. A search was inconclusive and led to the hiring of Clennie Murphy as acting director. HRA renewed its search in 1993, and Francis again applied for the job in the summer of that year. This time, HRA hired Richard Gonzales to fill the Director's position permanently. According to Francis, after assuming the directorship in early 1994 Gonzales then continued a pre-existing pattern of stripping plaintiff of his authority and also took disciplinary action based on a prior Department of Investigation inquiry into plaintiff's role in questionable purchasing activities (the "DOI investigation"). Francis later resigned effective May 20, 1994.

On August 2, 1994, Francis filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in which he alleged that he had been harassed and forced into retirement based on his national origin. Although the charge mentioned both plaintiff's 1992 application for the director's position and actions taken by Gonzales, it neither referred to plaintiff's 1993 reapplication for the directorship nor specifically alleged that the failure to promote him was discriminatory. A supplemental affidavit filed September 12, 1994, however, expanded upon the initial charge. The affidavit claimed that discriminatory considerations influenced HRA's abandonment of its 1992 search and that the DOI investigation began shortly after his 1993 reapplication for the promotion. In response to the EEOC's boilerplate request that the City respond to the charge, the City defended, among other things, the selection process that led to its decision to hire Gonzales instead of promoting Francis.

After the EEOC issued a right-to-sue letter to plaintiff, he filed suit in federal district court. His complaint alleged that "the DOI investigation was used as a pretext to the discrimination against plaintiff based on his national origin and to tarnish plaintiff's reputation and employment record to prevent him from obtaining the position of Head Start Director." At oral argument on defendants' summary judgment motion, the district court noted that plaintiff's papers in opposition to defendants' motion focused entirely on his constructive discharge claim, even though, at other points in the litigation, plaintiff had alleged discrimination with respect to both constructive discharge and failure to promote. Plaintiff's counsel clarified that Francis intended to maintain each of the two claims, and the court accepted that both claims remained in the case; defendants did not object.

At trial, defendants moved for judgment as a matter of law after plaintiff presented his case-in-chief. In the course of enumerating plaintiff's claims, the district court again raised the issue of whether he was maintaining the failure-to-promote claim. This time, the court questioned whether that claim was properly before it, noting that "[the EEOC charge] doesn't seem to me to mention the failure to promote in January of '94." Once again, defendants attacked the merits of that claim but did not take up Judge Gleeson's suggestion that it might not have been properly exhausted. The district court then granted the defendants judgment as a matter of law on all of plaintiff's claims except the one arising from rejection of his second application for the director's position. This failure-to-promote claim went to the jury.

After the jury returned a verdict for plaintiff, defendants, citing the weakness of plaintiff's evidence at trial, moved for judgment notwithstanding the verdict or for a new trial. The district court granted a new trial on damages only and otherwise denied the motion. After the second jury returned its verdict on damages, judgment for the plaintiff was entered. Over a month later, defendants moved to vacate the judgment and dismiss the complaint, arguing that plaintiff had neglected to allege any failure-to-promote claim in his EEOC charge, and, therefore, that the district court had no subject matter jurisdiction over that claim. Plaintiff opposed the motion on the grounds (1) that the non-promotion claim was, under our decision in Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397 (2d Cir. 1993), reasonably related to his allegations to the EEOC, and was therefore adequately exhausted, and (2) that defendants' attack on the adequacy of exhaustion came too late.

The district court denied defendants' motion. It held that claims are adequately exhausted when, though not brought before the EEOC with particularity, they nonetheless are "reasonably related" to the charged conduct by virtue of, as we explained in Butts, falling "within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Butts, 990 F.2d at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)). The court rejected defendants' argument that plaintiffs may gain the benefit of the Butts "reasonably related" test only with regard to conduct occurring after the EEOC complaint has been filed. It then concluded that the pre-charge conduct at issue here (the alleged discriminatory denial of a promotion) was reasonably related to the charged conduct. The City appeals from this decision.

Discussion

On appeal, Francis argues that we should affirm the district court on the basis of either (1) its decision that the failure-to-promote claim was properly exhausted under the Butts "reasonably related" test, or (2) the City's failure to raise its exhaustion objections at an earlier stage of litigation. With regard to the first argument, we agree with the district court that the benefit of the Butts "reasonably related" test is not limited to plaintiffs alleging post-charge conduct.¹ Whether Francis' failure-to-promote claim passes this test is a question that is not free from uncertainty. Because we can readily affirm the decision of the district court on plaintiff's alternative argument, however, we need not resolve the question.

Defendants' long delay in attacking the sufficiency of plaintiff's administrative exhaustion clearly constitutes a waiver of the exhaustion requirement, if that requirement is waivable. We hold that it is, and, accordingly, affirm on the ground that the City waived any defense based on defects in administrative exhaustion. See McNally Wellman Co. v. New York State Elec. & Gas Corp., 63 F.3d 1188, 1194 (2d Cir. 1995) ("We need not affirm for the reasons expressed by the district court...