Washington v. New York City Bd. of Estimate
| Decision Date | 03 June 1983 |
| Docket Number | D,No. 804,804 |
| Citation | 709 F.2d 792 |
| Parties | 32 Fair Empl.Prac.Cas. 45, 32 Empl. Prac. Dec. P 33,654 William WASHINGTON, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF ESTIMATE, Defendant-Appellee. ocket 82-7689. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles P. Kelly, New York City, for plaintiff-appellant.
Michael Gage, Asst. Corp. Counsel, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, City of N.Y., Carolyn E. Demarest, Asst. Corp. Counsel, New York City, on brief), for defendant-appellee.
Before OAKES, KEARSE and SLOVITER, * Circuit Judges.
Plaintiff William Washington appeals from a final judgment of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, dismissing his claims against defendant New York City Board of Estimate ("Board") under (a) 42 U.S.C. Sec. 1983 (1976), (b) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Secs. 2000e to 2000e-17 (1976 & Supp. IV 1980), and (c) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1976 & Supp. V 1981). The Title VII and ADEA claims were tried to the court without a jury and were dismissed at the close of the trial; the Sec. 1983 claim was tried before a jury, but the court refused to submit it to the jury and instead dismissed that claim as well. On appeal, Washington contends that the district court improperly denied two pretrial motions, to wit, his application to amend his complaint to add two individual defendants on his Sec. 1983 claim, and his request to have his age discrimination claim heard by a jury. We find some merit in the first contention and accordingly remand to the district court for appropriate further proceedings on the Sec. 1983 claim; in all other respects we affirm.
Washington, an employee of the Board since 1972, commenced this action pro se on April 16, 1981. In 1978 he had held the position of clerk and office aide, and had taken a promotional examination for the position of Office Associate. Of the seven Board employees who took the test, Washington's "score," a combination of his test results and his seniority, was the highest. Washington was not promoted. His complaint alleged chiefly that the Board had denied him promotion on the basis of his race, color, gender, and age. The only defendant named in the complaint was the Board.
Thereafter Washington filed numerous documents with the court, among them a cluster of papers on May 14, 1981, the topmost of which was an application for a stay as to certain deadlines. Attached to the stay application was a second application, this one "request[ing] the amendment of the above caption," to list as defendants, in addition to the Board, "Theodore Meekins[,] Secretary of the Board of Estimate [and] Earl Wilkinson[,] Office Manager of the Board of Estimate." The court does not appear to have taken any action on Washington's application to add Meekins and Wilkinson as defendants. 1
Apparently the summons and complaint were not served on the Board until July 29, 1981. The Board filed its answer on August 26, 1981. On September 22, Washington filed a "request that the court grant me a trial to resolve the above action." There was no mention of a jury, and the record does not reflect any demand for a jury trial. Also on September 22, Washington moved to have the court appoint an attorney to represent him. The court denied Washington's request on November 24, and Washington proceeded pro se until July 29, 1982, five days before the start of the trial.
In the meantime, Washington conducted considerable pretrial discovery, serving, inter alia, eight sets of interrogatories. Most of these were addressed not to the Board but to Meekins and Wilkinson. A document demand was addressed to Meekins alone. The interrogatories inquired principally as to the promotional patterns and practices of the Board and as to the racial attitudes of Meekins and Wilkinson.
On all of the papers filed by both sides, only the Board was listed as a defendant. However, in certain documents Washington referred to Meekins and/or Wilkinson as "defendant." For example, in seeking to compel answers to certain interrogatories addressed to those individuals, Washington stated, "The defendant has stated that he could 'mess my record up.' " (Plaintiff's Exception to the Defendants' Objections to Some of My (Plaintiff's) Interrogatories, at 2.)
Irrespective of the addressee, all of Washington's discovery demands were eventually responded to by the Board. The Board timely responded to some requests but not others, and Washington moved to compel answers. In an order dated July 26, 1982, the court denied the motion without prejudice, on the basis of the Board's promise to respond soon, but "noted that it appears from the papers submitted that defendant has been tardy in responding to plaintiff's discovery requests with no explanation offered to either Washington or the court." The Board filed its answers to Washington's interrogatories on July 29.
Also on July 29, 1982, apparently, the court appointed Charles P. Kelly, Esq., to represent Washington. Trial was scheduled to begin on August 3. Kelly immediately moved, inter alia, to amend the complaint to add Meekins and Wilkinson as defendants on the Sec. 1983 race discrimination claim and to be allowed a jury trial on the age discrimination claim. The court denied both requests.
Just prior to the start of the trial on August 3, these motions were renewed. The court refused to permit a jury trial on the ADEA claim, citing the tardiness of the request:
MR. SHAFFER [attorney for the Board]: We would oppose that.
(Aug. 3, 1982 Tr. at 3-4.) As to the motion to add the two proposed defendants, the court likewise adhered to its earlier ruling.
MR. KELLY: I would like to urge the Court to reconsider [the refusal to permit plaintiff to add Meekins and Wilkinson as defendants] in light of the fact that the plaintiff who was pro se has made several motions to amend the caption that I don't believe were ever ruled on and the plaintiff's pro se motion is the same motion that I am making.
In light of that and throughout the case, he has referred to Messrs. Meekins and Wilkinson as the respondents.
THE COURT: Mr. Kelly, you have done a fine job. Please don't push the points any further. The motion is denied. I have lived with this case a long time and suffered with it a long time. It is just not fair to the City to reopen the situation at this time and add a couple of defendants and have the delay.
(Id. at 4-5.)
The trial was held on August 3 and 4, with a jury empaneled to hear the Sec. 1983 claim of race discrimination and the judge as factfinder on the ADEA and Title VII claims. At the close of the evidence, the court entered judgment against Washington on all of his claims, stating as follows:
I am convinced that the 1983 charge should be dismissed and should not go to the jury. I am satisfied that it may not be accurate to say that there is no evidence of a policy or practice, although I do not think there is any, there is no evidence of any policy, practice at the Board of Estimate so that a reasonable juror could find by a preponderance of the evidence that that policy existed or that Mr. Washington was not promoted as a result of that policy.
Accordingly, I do dismiss that charge and take it from the jury.
With regard to the remaining claims under Title 7 and the age discrimination act barring discrimination on age, I am the factfinder, and I find that Mr. Washington has failed to establish by a preponderance of the evidence either claim. There are some conflicts of testimony, which I suppose have to be regarded as at least one person not telling the truth. It is also possible in some instances that neither witness is correct or accurate.
To the extent, however, that I am called upon to judge the credibility of the witnesses, I find the defendant witnesses, particularly Mr. Meekins and Mr. Wilkinson, to be credible. There are large areas of Mr. Washington's testimony which seem to me to be not credible. I must say that having to make the decision, I make the decision on that basis.
On this appeal, Washington does not directly challenge the district court's directed verdict or findings against him. Rather he contends that the court erred (1) in not allowing him to add Meekins and Wilkinson as defendants on the race discrimination claim, and (2) in not allowing him a jury trial on his age discrimination claim. 2 We find merit only in the first contention.
Rule 15(a) of the Federal Rules of Civil Procedure provides that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served ...." So far as we are able to determine from the record before us and from the district court docket entries, Washington's May 14, 1981 request to amend the caption to add Meekins and Wilkinson as defendants was his first attempt to amend his complaint. 3 Since the Board did not answer the complaint until August 26, 1981, Washington was entitled on May 14, 1981 to amend his complaint as a matter of right, and his request at that time should have been granted. See Le Grand v. Evan, 702 F.2d 415, 417 (2d Cir.1983).
It is not clear whether or not Washington was prejudiced by the...
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