Lees v. Case-Hoyt Corp., Civ. No. 90-0163L.

• Decision Date: 23 December 1991
• Docket Number: Civ. No. 90-0163L.
• Citation: 779 F. Supp. 717
• Parties: Maxine Kilkenny LEES, Plaintiff, v. The CASE-HOYT CORPORATION, Defendant.
• Court: U.S. District Court — Western District of New York

779 F. Supp. 717

Maxine Kilkenny LEES, Plaintiff, v. The CASE-HOYT CORPORATION, Defendant.

Civ. No. 90-0163L.

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

December 23, 1991.

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Irene K. Dymkar, Dymkar & Brandt, Rochester, N.Y., for plaintiff.

Ted H. Williams, Scolaro, Shulman, Cohen, Lawler & Burstein, Syracuse, N.Y., for defendant.

DECISION AND ORDER

LARIMER, District Judge.

This matter is before the court on defendant Case-Hoyt Corporation's motion for summary judgment. Plaintiff Maxine Lees filed this action against her former employer, Case-Hoyt, alleging race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964. For the reasons stated below, defendant's motion for summary judgment on the claim of wage discrimination is denied, and defendant's motion for summary judgment on the claim of retaliatory harassment is granted.

I. BACKGROUND

Plaintiff Maxine Lees, a black female, was hired by the defendant Case-Hoyt Corporation as a customer service representative ("CSR") on May 12, 1986, at a yearly salary of $17,000. During most of her employment, the plaintiff was the only black CSR working for the defendant. Soon after she was hired, two serious problems arose. First, the plaintiff began making numerous complaints to her supervisors that her salary was low in relation to her experience and compared to the salaries paid to the other CSRs, all of whom happened to be white. Although the plaintiff did receive several raises over the course of her employment, she continually complained that her salary was too low. Second, in early 1987 the plaintiff began arriving late to work, and her supervisors reprimanded her for her tardiness on numerous occasions. Plaintiff attempted to negotiate a solution, explaining that she had recently become a single parent and that her two children created many responsibilities for her in the mornings. However, no solution was worked out and over the course of her employment the problem intensified.

On January 12, 1988, the plaintiff filed a complaint with the New York State Division of Human Rights (the "Division"). Plaintiff alleged wage discrimination on the basis of race and color and that the defendant was retaliating against her for complaining about her low salary by harassing her for coming in late. The Division made a determination of "no probable cause" on March 28, 1989. In the meanwhile, the plaintiff continued to be reprimanded for arriving late. Finally, on April 11, 1988, the defendant suspended plaintiff for two days. When she returned on April 14, 1988 the plaintiff resigned.

After the Division rendered its decision, the Equal Employment Opportunity Commission ("EEOC") conducted its own investigation. The EEOC issued a decision that the evidence did not establish violations of Title VII, on November 13, 1989. Plaintiff subsequently filed this complaint on February 12, 1990, alleging wage discrimination on the basis of race and sex and retaliatory harassment.

The defendant is moving for summary judgment on two grounds.¹ First, that plaintiff's claim of wage discrimination on the basis of race is untimely or in the alternative that it does not state a claim upon which relief can be granted and that plaintiff has failed to establish a prima facie case of wage discrimination. Second, that the plaintiff has failed to establish a prima facie case of retaliatory harassment.

II. ANALYSIS

A. Statute of Limitations

In a deferral state, such as New York, a complainant must file a charge with the EEOC within 300 days following the alleged discriminatory event. 42 U.S.C. §§ 2000e-5(e). However, because a deferral state is one that has its own agency through which a complainant can seek relief from discrimination, Title VII also "provides that no charge may be filed with the EEOC until 60 days have elapsed from initial filing of the charge with an authorized state or local agency...."²E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107, 110-11, 108 S.Ct. 1666, 1668-69, 100 L.Ed.2d 96 (1988). Consequently, in order to fall within the 300-day limitation period "a complainant must file a charge with the appropriate state or local agency, or have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event ..." Commercial Office Products Co., 486 U.S. at 111, 108 S.Ct. at 1669 (citing Mohasco Corp. v. Silver, 447 U.S. 807, 814, n. 16, 100 S.Ct. 2486, 2491, n. 16, 65 L.Ed.2d 532 (1980)).³ In this case plaintiff filed a complaint with the Division on January 12, 1988, and more than sixty days elapsed before the Division completed its investigation and rendered a decision. Thus, for plaintiff's complaint to be timely the alleged discriminatory event must have occurred during the 240 days before January 12, 1988.

The defendant, relying on Labeach v. Nestle Company, Inc., 658 F.Supp. 676 (S.D.N.Y.1987), contends that for a claim of wage discrimination the relevant discriminatory event is the setting of the salary and consequently, the limitations period started to run on May 1, 1986, the day plaintiff was told her starting salary. Under this interpretation plaintiff's filing on January 12, 1988 would be untimely. However, defendant's contention is without merit. Although the general rule is that the Title VII limitations period starts to run "on the date the plaintiff receives notice of the allegedly discriminatory act, and not the date the decision actually takes effect," Hale v. N.Y. State Dep't of Mental Health, 621 F.Supp. 941, 942 (S.D.N.Y.1985) (citations omitted), when an employee is adversely affected "pursuant to a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2nd Cir.1985), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); see also Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982). "In such circumstances if the charge has been filed no later than 300 after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well." Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 275 (2nd Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Plaintiff contends that the defendant's practice of paying her less than her white counterparts constitutes a continuing violation.

It has consistently been held that a claim of wage discrimination exists not only at the time of setting the salary but also each time the employee receives unequal pay. Satz v. ITT Financial Corp., 619 F.2d 738 (8th Cir.1980) (practice of paying discriminatory unequal pay occurs not only when an employer sets pay levels, but as long as the discriminatory differential continues); Bartelt v. Berlitz School of Languages of America, 698 F.2d 1003 (9th Cir.1983), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) (policy of paying lower wages to female employees on each payday constitutes a continuing violation); Jenkins v. Home Insurance Co., 635 F.2d 310 (4th Cir.1980) (continuing violation ended only when plaintiff stopped working); Hall v. Ledex, Inc., 669 F.2d 397 (6th Cir.1982) (the discrimination was continuing in nature with each check received); Schulte v. State of New York, 533 F.Supp. 31 (E.D.N.Y.1981) (discriminatory pay practices under the EPA are continuing violations); Clay v. Quartet Manufacturing Co., 644 F.Supp. 56 (N.D.Ill.1986) (equal pay claim may continue as long as the discriminatory pay scale is in force); but cf., Blesedell v. Mobil Oil Co., 708 F.Supp. 1408 (S.D.N.Y.1989) (plaintiff not entitled to recover disparate salary earned prior to limitation period).

This line of authority is compelling and I believe that it controls here. A wage scale, whether set out in writing or not, that decreases the value of the work of an employee because of her race or gender is precisely the type of policy and practice that the continuing violation theory encompasses. While each payment of a discriminatorily low paycheck is a separate and distinct violation of Title VII, all such payments are connected by the employer's continuing policy and practice of paying an employee a lower wage because of their race or gender. Defendant's argument that any salary discrepancy that existed during the limitations period can be attributed only to the initial salary setting decision is unpersuasive. Defendant's contention and its reliance on Labeach is premised on the Supreme Court's holding in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). However, unlike the violation alleged in Evans, wage discrimination is a violation that persists into the limitations period and is not merely some effect of a discriminatory act that occurred some time ago. As long as plaintiff can support an inference of wage discrimination during the limitation period her complaint is timely. Consequently, the defendant's reliance on Labeach is misplaced. Unlike plaintiff in this case, see infra, the plaintiff in Labeach failed to produce any facts that suggested that he suffered wage discrimination during the limitations period. Labeach, 658 F.Supp. at 688.

Plaintiff filed a complaint with the Division in January 1988, and continued to receive paychecks through April 1988. Although not stated explicitly it can be inferred that plaintiff was being paid during the 240 day period before she filed a complaint with the Division. Plaintiff has produced evidence to support an inference of wage discrimination during the limitations period. See, infra, § II.C. Consequently, the plaintiff's claim of wage discrimination was timely filed with the Division.

B. Standard of Review of Title VII Claim on Summary Judgment

It is...