Patrowich v. Chemical Bank

• Citation: 470 N.Y.S.2d 599,98 A.D.2d 318
• Parties: , 59 Fair Empl.Prac.Cas. (BNA) 1691 Margaret H. PATROWICH, Plaintiff-Respondent, v. CHEMICAL BANK and Harold D. Corney, Defendants-Appellants.
• Decision Date: 12 January 1984
• Court: New York Supreme Court Appellate Division

Page 599

470 N.Y.S.2d 599

98 A.D.2d 318, 59 Fair Empl.Prac.Cas. (BNA) 1691

Margaret H. PATROWICH, Plaintiff-Respondent, v. CHEMICAL BANK and Harold D. Corney, Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Jan. 12, 1984.

Kenneth J. Kelly, New York City, of counsel (John B. Wynne, New York City, attorney), for defendants-appellants.

Robin J. Arzt, New York City, of counsel (Jeremiah S. Gutman, New York City, with her on brief; Levy, Gutman, Goldberg & Kaplan, New York City, attorneys), for plaintiff-respondent.

Before ROSS, J.P., and CARRO, ASCH, MILONAS and KASSAL, JJ.

ASCH, Justice.

Plaintiff was hired by the defendant Chemical Bank on January 28, 1974. She was discharged on October 21, 1981 for alleged insubordination, untruthfulness and failure to comply with directives. Plaintiff had been a secretary in several prestigious law firms prior to her being hired by the bank at age 50, and thereafter she had been promoted first, from the position of Senior Administrator to Officer's Assistant and then to Assistant Trust Officer in Chemical's Trust and Investment Division. At the time she was hired, plaintiff was allegedly informed by Chemical's Personnel Department that there was a "Chemical Bank Personnel Manual" which contained Chemical's rules regarding employees' benefits, services, conduct and discipline, and that a copy was available for inspection.

This action was commenced on February 25, 1982, four months after plaintiff was discharged. It set forth nine causes of action, the first six based on Federal and State anti-discrimination statutes and the last three based on common law. The first cause of action contains the allegation that equally or less qualified male employees received preferential treatment and that plaintiff was discharged in violation of her "contract" and the procedural provisions of Chemical's personnel manual relating to documentation of unsatisfactory employee performance. The first cause of action also contains an allegation that is repeated with minor variations in the second through sixth causes of action as follows:

"Upon information and belief, Defendant Bank has a policy, practice, custom, and usage of discriminating against women [or 'individuals'] on the basis of their sex [or 'age'], which has been implemented by Defendants, in that Defendant Bank has a history of ..."

The first cause of action also expressly alleges violations of the Federal Age Discrimination in Employment Act of 1967 (29 U.S.Code § 623, et seq. [hereafter "ADEA"] and Article 15 of the New York State Executive Law [the State Human Rights Law] ).

The second cause of action alleges on information and belief that Chemical has a "policy, practice, custom, and usage of discriminating against women upon the basis of their sex" and alleges that defendant Bank has failed to hire women, including plaintiff, for certain positions but that it has hired men, no more qualified, for such positions. Plaintiff expressly charges unlawful discrimination, in violation of Title VII of the Federal Civil Rights Act of 1964 (42 U.S.Code § 2000e-2[a] ), and the State Human Rights Law.

The third cause of action alleges sex discrimination against women, including plaintiff, in job placement by defendant Bank, in violation of Title VII and the Human Rights Law.

The fourth cause of action alleges Chemical allegedly applies a "more stringent" standard to female employees and allegedly denies females "promotions to positions of responsibility," in violation of Title VII and the Human Rights Law.

The fifth cause of action alleges that Chemical pays women less in "total compensation" than equally qualified men, in violation of the Federal Equal Pay Act (29 U.S.Code § 206[d] ) and New York State Labor Law § 194.

The sixth cause of action alleges that defendant Bank gives female employees, including plaintiff, "less frequent and smaller salary increases and less frequent promotions" than male employees, in violation of Title VII and the Human Rights Law.

The seventh cause of action alleges Chemical breached its purported oral contract of employment with plaintiff by discharging her on October 21, 1981 without following the personnel manual guidelines.

The eighth cause of action alleges breach of the purported oral employment contract and adds the allegation that plaintiff relied to her detriment on various portions of the personnel manual.

The ninth cause of action alleges a "wrongful * * * discharge" but it has been withdrawn by plaintiff upon this appeal.

Plaintiff seeks declaratory relief and an injunction directing Chemical to reinstate her and grant her retroactive raises, an award of back pay, damages for her "pain and suffering," and restoration of her benefits and other incidental relief.

Defendants moved at Special Term for partial summary judgment dismissing those portions of the first through sixth causes of action against Chemical which alleged violations of various Federal and State anti-discrimination statutes, on the grounds the violations purportedly occurred prior to the applicable statute of limitations; dismissing those Federal statutory claims as to which plaintiff allegedly has failed to exhaust her mandatory administrative remedies; dismissing the seventh through ninth causes of action as against Chemical for breach of alleged "employment contract" on the ground that plaintiff was an "at will" employee without any contract who could be terminated at any time for any or no reason, and dismissing the entire complaint as against defendant Corney, one of plaintiff's former managers, on the grounds that it fails to allege a valid cause of action against that individual defendant. Defendants' motion for partial summary judgment was based upon the allegations of the complaint, plaintiff's answers to interrogatories, as well as uncontested facts and documents pertaining to defendant Bank and certain of plaintiff's co-workers. Special Term denied the entire motion with leave to renew upon completion of discovery. This was error.

Plaintiff's seventh, eighth and ninth causes of action are all predicated upon an alleged breach of Chemical's employment manual. The seventh alleges that the Bank "did not fulfill the terms and conditions pertaining to the release of employees" as set forth in the manual and the eighth adds that she "relied, to her detriment, on Chemical's representations in the manual regarding the notice and other procedures and benefits to be accorded employees" who do not perform up to the standards of their positions. As noted before, the ninth cause of action simply alleges wrongful discharge.

The seventh, eighth and ninth causes of action should have been dismissed by Special Term. Plaintiff admits that she did not have a formal written employment contract, and her answer to the Chemical interrogatory which sought the terms of her alleged "oral" contract establishes, as a matter of law, that she was an employee at will. Chemical's manual contains no provision requiring termination solely for good cause shown, nor has plaintiff attempted to show that it does so. The manual provides only general policy statements and supervisory guidelines. It does not contain any specifics as to specific jobs or positions, the salary to be paid to any particular employee or the precise term of employment. Thus, in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, the employer's personnel manual expressly provided that an employee enjoyed permanent job security and could only be discharged for "just cause." As the Court of Appeals has explained:

"Of course, if there were an express limitation on the employer's right of discharge, it would be given effect even though the employment contract was of indefinite duration. Thus, in Weiner v. McGraw-Hill, Inc. [57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441], cited by plaintiff, we recently held that, on an appropriate evidentiary showing, a limitation on the employer's right to terminate an employment of indefinite duration might be imported from an express provision therefor found in the employer's handbook on personnel policies and procedures." (Murphy v. American Home Products, 58 N.Y.2d 293 at 305, 461 N.Y.S.2d 232, 448 N.E.2d 86).

In the instant case there is no evidence of any express limitation relating to job tenure. The manual of defendant Bank contains no language providing for termination solely for good cause shown. In addition, plaintiff's statement that she relied on the manual is insufficient to bring this case within the limits of Wiener v. McGraw-Hill, Inc., supra. No details have been provided to show such reliance. Plaintiff has not stated that she was induced to leave her prior position, that she turned down another job offer because of the manual, or because of what she believed Chemical's termination procedures to be. Her conclusory statements as to reliance cannot defeat a motion for summary judgment (see Freedman v. Chemical Construction Co., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12). Moreover, as plaintiff concedes by abandoning her ninth cause of action, there is no cause of action recognized in New York for abusive or wrongful discharge of an employee (see Murphy v. American Home Products, supra ).

The Federal statutes ...