Frasier v. General Elec. Co.

Decision Date12 April 1991
Docket NumberNo. 1108,D,1108
Parties30 Wage & Hour Cas. (BN 409, 56 Empl. Prac. Dec. P 40,861, 118 Lab.Cas. P 35,472 Susan R. FRASIER, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee. ocket 90-7970.
CourtU.S. Court of Appeals — Second Circuit

Susan R. Frasier, Schenectady, N.Y., plaintiff-appellant pro se.

Solin, Breindel & Berger, Albany, N.Y. (Daniel R. Solin, Albany, N.Y., on the brief), for defendant-appellee.

Before KAUFMAN, KEARSE and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff pro se Susan R. Frasier, a former employee of defendant General Electric Company ("GE"), appeals from an order of the United States District Court for the Northern District of New York, Con. G. Cholakis, Judge, denying her motion for reconsideration of an earlier order dismissing her complaint for damages from GE for allegedly discriminatory employment practices in violation of the Equal Protection Clause of the United States Constitution, the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq. (1988) ("FLSA"), and a criminal civil rights statute, 18 U.S.C. Sec. 241 (1988). Although the court correctly ruled that the complaint did not state a federal claim on which relief may be granted, we conclude that the court should have allowed Frasier the opportunity to file an amended complaint, asserting a claim under the Equal Pay Act, 29 U.S.C. Sec. 206(d) ("EPA").

I. BACKGROUND

Frasier's complaint, filed on July 11, 1990, alleged that Frasier had been employed by GE from June 1977 to September 1988 in a variety of positions relating to computer sciences. The complaint alleged principally (1) that Frasier had become sick, sore, lame, fatigued, and distressed as a result of improper work assignments delegated by incompetent managers negligently hired and trained by GE; (2) that she was denied promotions, job titles, salary increases, and staff assistance that she had earned or had been promised, and that these denials were the consequence of "gender-based prejudice" that resulted from GE's negligent hiring and training of managers; (3) that one of the managers had falsified information in Frasier's personnel record and that some salary increases she received were less than they should have been as a result of GE's gender discrimination; and (4) that she was as skilled as certain temporary consultants hired by GE and that she was denied "equal pay for equal work." The complaint also alleged that Frasier had suffered health problems as a result of the chain-smoking of one manager, and financial problems as a result of the pressure placed on her by another manager to work long hours.

GE promptly moved under Rule 12(b)(6) to dismiss the complaint on grounds of, inter alia, statute of limitations and failure to state a claim. GE argued that insofar as the complaint sought to assert a claim under the EPA, its allegations were conclusory and the complaint was defective because (1) it was "entirely devoid of any In opposing GE's motion, Frasier responded that she had not sought to state a claim under the EPA, though she had cited 29 U.S.C. Sec. 206 in an effort to invoke federal jurisdiction. At the hearing on the motion, she stated that she was not certain as to the pertinent legal bases for her suit, and her responses were vague when the court inquired whether she had meant to state a claim of gender discrimination:

allegation that this unequal pay was based upon a sexually discriminatory motive, intent or practice [or that] GE paid plaintiff a different wage than it paid male employees for equal jobs," and (2) there was no allegation that GE knew or should have known of its employees' biases. GE also argued that the action was not timely because the complaint did not allege that GE's conduct was willful and the action was not brought within two years of that conduct. See 29 U.S.C. Sec. 255(a) (two-year limitations period for nonwillful violations).

THE COURT: But you don't allege that they did any of these things because of sex, sex discrimination.

FRASIER: This is one of the reasons why I'm asking federal jurisdiction. There is going to be a requirement of probably some scrutiny about the language of what [one GE manager] said, what his intent was, what his motives were. This was followed by a long list of other events that gave me the sense and the feeling he was basically saying he didn't want women as a manager. There were no women managers at that time, and this has been an issue with G.E. before.

THE COURT: Of course, you don't allege any of this in your complaint.

FRASIER: Well, the complaint I did the best I could with the skill sets that I had, and I was focused on, in fact, the page limit....

....

.... [T]hat was my fear at the time was just to convey a message that I did have a complaint and that it was balanced so far as I could tell, and I would follow through with any modifications that may be needed later.

(Hearing Transcript, September 21, 1990 ("Tr."), 6-7.)

At the conclusion of the hearing, the district court granted GE's motion to dismiss. The court ruled that Frasier had failed to state a claim under the EPA:

Although plaintiff alleges she was paid less than the worth of her services warranted, that a male was given the permanent managerial position to which she believed she was entitled and that temporary consultants were paid more than she was for comparable work, she makes no showing that any male employee performed equal work and was paid more than plaintiff. Being paid less than services are worth has not been demonstrated here to be the result of gender-based discrimination.

The temporary consultants on [sic ] which plaintiff complains are not identified by gender nor even if it were likely they performed similar services under similar working conditions. Finally there are no allegation [sic ] that the male was given the permanent managerial position due to some gender-based discriminatory intent.

(Tr. 13-14.) Noting that there was no diversity jurisdiction, and declining to exercise pendent jurisdiction, the court also dismissed Frasier's state-law claim for negligent hiring or retention of managerial personnel.

Frasier moved for reargument, arguing that exhibits to the complaint documented her allegation of inequality of work distribution without a comparable increase in pay and without the normal job title. In a Memorandum Decision and Order dated October 22, 1990 ("October 22 Order"), the court denied reargument, stating as follows:

Contrary to her original motion, in which she stated unequivocally that she was not bringing an action under the Equal Pay Act, ... plaintiff alleges that, as the unit leader and sole worker assigned to a Systems Engineering Unit, she was required "with no comparable increase in pay," to do more work than male unit leaders who had support October 22 Order at 2.

staff.... Plaintiff does not discuss what the other leaders were paid. She does not allege specifically that she was paid less money for the same work, which is what the Equal Pay Act protects against. See 29 U.S.C. Sec. 206(d)(1). With due regard to the pro se status of plaintiff, her papers allege, at most, that she was paid less than warranted by the amount of work she performed. The papers do not allege that males performing equal work received more remuneration than did she.

Final judgment was entered on October 29, 1990. Frasier has appealed, seeking review of the October 22 Order.

II. DISCUSSION

On this appeal, Frasier contends that the district court erred, inter alia, in failing to construe her pleading with the degree of liberality appropriate to a pro se litigant, in dismissing her complaint for failure to state a claim under the EPA, and in denying her motion for reargument. Most of Frasier's arguments are meritless and do not require discussion, and we affirm the dismissal of the complaint. Nonetheless, for the reasons below, we conclude that the dismissal should have been without prejudice, in order to allow Frasier the opportunity to file an amended complaint asserting, if she can do so in good faith, a claim under the EPA.

The EPA, which is part of the FLSA, provides, in pertinent part, that

[n]o employer having employees subject to any provisions of [Sec. 6 of the FLSA] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the...

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