Opinion
00CV800.
April 15, 2004
Report Recommendation
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 28). The instant matter before the Court is defendant's (Docket No. 51) motion for summary judgment. At issue here is whether plaintiff was timely in commencing her claims despite being a potential plaintiff in a related putative class action.
BACKGROUND
This Action
Plaintiff ("plaintiff" or "Calvello"), a female former employee of defendant, Electronic Data System ("EDS" or "defendant"), commenced this action on September 14, 2000 (Docket No. 1), alleging claims under Title VII, 42 U.S.C. § 2000e, et seq., for failing to promote her as opposed to a male colleague and wage discrimination, and retaliation; under the Equal Pay Act, 29 U.S.C. § 206, et seq., for wage discrimination; and New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq., claim for discrimination in promotion, wage discrimination, and retaliation. Originally, this was alleged as a class action.
Plaintiff was hired by General Motors Corporation in 1977 and transitioned to EDS in 1985 (Docket No. 1, Compl. ¶ 8 ("Compl.")). She alleges that she was denied training given to her male counterparts, paid $23,000 per year less than her male counterparts with equivalent skill and experience, and was passed over for promotions by EDS (Compl. ¶¶ 10, 12, 11). Plaintiff was terminated on or about March 29, 1999; days before, she received a memorandum of a pending putative class action commenced by Louann Rehwaldt, see Rehwaldt v. Electronic Data Sys., No. 95CV876, asking her not to join the class. (Compl. ¶ 13.) At her termination, plaintiff was offered a severance package upon her execution of a release which would have included releasing any claims she may have had in the Rehwaldt action. Plaintiff claims that she was terminated in retaliation for her (and other female EDS employees') complaints about unequal pay and promotion. (Compl. ¶ 13.) Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") (Compl. ¶ 14) on October 7, 1999 (Docket No. 42, Order of May 5, 2003, at 2). Defendant answered on November 8, 2000 (Docket No. 2).
Plaintiff then moved for class certification (Docket No. 17). In denying class certification in this action, this Court found that any discriminatory acts occurring before December 11, 1998, that is 300 days before plaintiff's filing of charges with the EEOC on October 7, 1999, were time barred. (Docket No. 42, Order adopting Report Recommendation, May 5, 2003, at 2; see Docket No. 32, Report Recommendation, Sept. 27, 2002.) The United States Court of Appeals for the Second Circuit denied plaintiff's motion for leave to commence an interlocutory appeal from this Order (Docket No. 57).
Class certification also was denied in Rehwaldt, 95CV876, Docket No. 113 (Order of Aug. 16, 2001, adopting Report Recommendation, Docket No. 103, Mar. 29, 2001). Storms, 01CV665, purportedly a class action, has pending objections to a Report Recommendation recommending dismissal of plaintiffs' failure to promote and New York State Human Rights Law claims, while recommending denial of summary judgment as to their Equal Pay Act claims; class certification has yet to be dealt with by the Court in that case.
Defendant moved for summary judgment on December 3, 2003 (Docket No. 51), arguing that plaintiff's various claims are time barred.
Related Actions
As previously noted, see Docket No. 32, Report Recommendation, Sept. 27, 2002, at 2 n. 1, this action is related to two purported class actions commenced by other EDS employees,Rehwaldt v. Electronic Data Systems, No. 95CV876, and Storms v. Electronic Data Systems, No. 01CV665 (collectively the "EDS litigation"). All three actions were referred to the undersigned as Magistrate Judge and are pending before Chief Judge Arcara. The plaintiffs in each action are represented by the same counsel and assert substantially identical claims against EDS. InRehwaldt, plaintiffs alleged EDS discriminated against a class of all female employees at its Amherst and Lockport facilities in promotions and wages. A class alleging an Equal Pay Act claim inRehwaldt was provisionally certified and Calvello filed a consent to join this action on April 30, 1999. This class certification, as well as a motion to certify a class for the other claims (violations of Title VII and New York State Human Rights Law), was denied upon the recommendation of the undersigned on March 29, 2001 (Docket No. 103), and adopted by Order on August 20, 2001 (Docket No. 113).
Calvello, however, did not move to intervene in Rehwaldt but commenced her present action on September 14, 2000.
DISCUSSION
I. Summary Judgment StandardSummary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed.R.Civ.P. 56(c). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, supra, 316 F.3d at 354. "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the non moving party.'" Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)), cert. denied, 522 U.S. 864 (1997). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);McCarthy v. American Intern. Group, Inc., 283 F.3d 121, 124 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002).
II. Statutes of Limitations
EDS argues that, under the relevant statutes of limitations for the alleged claims, much of plaintiff's action is time barred. According the Chief Judge Arcara's decision in this action (Docket No. 42, May 5, 2003, Order), the applicable statute of limitations for plaintiff's Title VII claims are 300 days from the filing of EEOC charges, which occurred on December 11, 1998; or plaintiff's claim before December 11, 1998, are time barred. For the Equal Pay Act or wage discrimination aspects of plaintiff's Title VII claim, each paycheck constitutes an actionable discrete act for which the statute of limitations runs and not a continuing violation. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see Bazemore v. Friday, 478 U.S. 385, 395-96 (1986); see also Docket No. 42, at 2-3. EDS argues this applies also to plaintiff's Title VII promotion and discharge claims. That decision is law of the case in this action.
Plaintiff's Equal Pay Act claim has a three-year statute of limitations, see Pollis v. New School for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997). Plaintiff's New York State Human Rights Law claim also has a three-year statute of limitations, C.P.L.R. 214(2); see Quinn v. Green Tree Corp., 159 F.3d 759, 765 (2d Cir. 1998). Thus, claims arising before September 14, 1997, would be time barred.
Most of plaintiff's claims arise before these dates. She claims that she was denied promotion to a variety of positions in 1994 through 1996 (Docket No. 54, App. B, Walker Aff. ¶ 6; Docket No. 54, Def's Appendix to Local Rule 56.1 Statement, Ex. J, Calvello Dep. Tr. at 66-70, 81-82, 78-81) As for plaintiff's wage discrimination claims, only one part of plaintiff's claim has not accrued, the allegation that her supervisor, Peter Cirocco, performed the same work as she did but received a higher salary. (Docket No. 54, Ex. J, Calvello Dep. Tr. at 12-16, 42-44, 83.) The other wage discrimination claims are time barred. (Docket No. 54, Ex. J, Calvello Dep. Tr. at 93-94, Ex. B, Walker Aff. ¶¶ 4, 6, 9.)
Plaintiff argues tolling effect of the then-pending putative class action, Rehwaldt, No. 95CV876, with claims running from when plaintiff filed consent to join that action, in April 30, 1996. See Storms, supra, No. 01CV665, Docket No. 28 (Report and Recommendation, of Sept. 22, 2003, see id. Docket Nos. 31 (Objections to Report Recommendation), 48 (adjourning argument of parties' objections to May 25, 2004). Plaintiff argues that one case EDS cites, In re WorldCom, Inc., Securities Litig., 249 F. Supp.2d 431 (S.D.N.Y. 2003), is distinguishable, since that case involved a securities claim and an opt-out class rather than the opt-in class formed in the EDS litigation.
EDS argues that plaintiff cannot benefit from tolling, since she commenced this action almost one year prior to the decertification of the Rehwaldt action. The toll applicable for a pending class action prior to the determination whether to certify that class does not apply here because plaintiff commenced her own action before that class certification determination was made.
Rehwaldt, however, does not toll the relevant statutes of limitations for plaintiff's claims. A class action tolls the statute of limitations for a potential individual class member only until the class certification is determined. The American Pipe tolling doctrine provides that
"`the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.' American Pipe Construc. Co. v. Utah, 414 U.S. 538, 554 . . . (1974). The Court explained that
"`A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable.'
"Id. at 553. The Court observed that under Rule 23, class actions are `designed to avoid, rather than encourage' repetitious filing. Id. at 550. American Pipe found equitable tolling appropriate precisely because it did not want to punish putative class members who had waited to file an action, as encouraged by Rule 23, and had relied, knowingly or not, on the class litigation only to find that the class was not certified and their time to file independent actions had expired. See 414 U.S. at 551."In re WorldCom, supra, 294 F. Supp.2d at 450. "AlthoughAmerican Pipe itself tolled the statute of limitations only for those who moved to intervene after class certification had been denied, the Supreme Court later extended the doctrine to apply to class members who choose to file separate suits after class certification is denied. See Crown, Cork Seal Co v. Parker, 462 U.S. 345, 350 . . . (1983)." In re WorldCom, supra, 294 F. Supp.2d at 450.
The court in WorldCom denied plaintiffs' request to apply theAmerican Pipe toll to parties who commence their own individual actions while the class certification was pending. As that court noted,
Although the Second Circuit has not yet decided this issue, district courts in this circuit have held that a plaintiff who chooses to file an action independently of the class before a determination on class certification cannot benefit from the American Pipe tolling rule. See, e.g., In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F. Supp.2d 188, 221 (E.D.N.Y. 2003); Primavera Familienstifung v. Askin, 130 F. Supp.2d 450, 514 (S.D.N.Y. 2001); Wahad v. City of New York, 1999 U.S. Dist. LEXIS 12323, No. 75 Civ. 6203(AKH), 1999 WL 608772, at *6 (S.D.N.Y. Aug. 12, 1999); see also Chinn v. Giant Food, Inc., 100 F. Supp.2d 331, 335 (D. Md. 2000); Rahr v. Grant Thornton LLP, 142 F. Supp.2d 793, 800 (N.D. Tex. 2000); In re Brand Name Prescription Drugs Antitrust Litig., 1998 U.S. Dist. LEXIS 12534, No. 94 C 897, MDL 997, 1998 WL 474146, at *8 (N.D. Ill. Aug. 6, 1998); Stutz v. Minn. Mining Mfg. Co., 947 F. Supp. 399, 404 (S.D. Ind. 1996); Chemco, Inc. v. Stone, McGuire Benjamin, 1992 U.S. Dist. LEXIS 11657, 1992 WL 188417, at *2 (N.D. Ill. July 29, 1992); Wachovia Bank and Trust Co. v. National Student Marketing Corp., 461 F. Supp. 999, 1012 (D.D.C. 1978). As explained in these decisions, the plaintiffs who choose to file an independent action without waiting to consider the determination of class certification are not entitled to enjoy the benefits of the tolling rule. Applying the tolling doctrine to separate actions filed prior to class certification would create the very inefficiency that American Pipe sought to prevent.In re WorldCom, supra, 294 F. Supp.2d at 451.
Plaintiff's attempt to distinguish WorldCom is to no avail. That court applied a consistent interpretation of the American Pipe doctrine, as applied by district courts within this Circuit and beyond it, to limit the toll of statute of limitations to putative class parties who take advantage of the class action procedure. That case was not dependent upon the underlying claim in which the class action was sought or whether class members could opt in or opt out of the class. Denying plaintiff here to have her cake (joining the Rehwaldt class when it existed) and eat it too (commencing her own parallel individual action filed while the class existed) serves the purpose of avoiding burdening the courts with separate lawsuits which may have evaporated upon certification of the class and the purposes of American Pipe and Crown, Cork in providing for putative class members that were not allowed to proceed as a class action. See WorldCom, supra, 294 F. Supp.2d at 452, 453. Plaintiff here had the benefit of the class action while Rehwaldt was a class action (and tried to participate as a class member) and does not need the benefit of American Pipe to preserve her individual claim, which was intended to preserve individual claims that were not commenced while a plaintiff sought class certification. And, as noted above, the Rehwaldt action and this action were commenced by the same counsel and asserted substantially identical claims. "Because American Pipe tolling applies to all putative class members, no individual action, much less an onslaught of individual actions, need be filed in order to preserve the right to bring such an action. After a decision on certification is rendered, a plaintiff may file an individual action. If a class has been certified, the plaintiff will opt out of the class and file an individual action." WorldCom, supra, 294 F. Supp.2d at 452-53. By filing her present action while the issue of class certification was open in Rehwaldt, plaintiff in effect waived the toll that the pending class certification created under American Pipe.
Therefore, plaintiff's claims are not tolled by American Pipe. As a result, most of plaintiff's claims are time barred and should be dismissed.
III. Wage Discrimination Claim
EDS argues that the remaining timely portion of plaintiff's claim is nevertheless without merit, from plaintiff's testimony conceding that the employee receiving the higher salary performed additional duties and had more extensive, desired experience than she did. Plaintiff testified in her examination that she was not a supervisor but was a "team leader" (Docket No. 54, Ex. J, Calvello Dep. Tr. at 30) and that she did not write computer code at EDS (id. at 36). Plaintiff argues that the comparisons to male colleagues raise issues of fact for a jury to decide. (Docket No. 58, at 9.) See Tomka v. Seiler Corp., 66 F.3d 1295, 1311 (2d Cir. 1995) (alleged differences in job duties is issue of fact for jury, denying summary judgment). But unlike the plaintiff in Tomka, id. at 1310-11, Calvello did not have the same duties and responsibilities as her colleague, Peter Cirocco. EDS relies upon plaintiff's own testimony to show (1) EDS wanted to hire someone for the position who had previously used Consolidated Procurement Tracking ("CPT") software; (2) that she did not have CPT experience when she interviewed for the position; (3) that Cirocco had CPT experience when he interviewed for the position; and (4) that Cirocco was otherwise qualified for the position when he interviewed. (Docket No. 62, Def.'s Reply, at 8; Docket No. 54, App. J, Calvello Tr. 12-16, 42-44, 83).
To state a prima facie case for wage discrimination under the Equal Pay Act (and under the New York Human Rights Law, see id. at 1312) plaintiff must show (1) different wages were paid to employees of the opposite sex; (2) the employees perform equal work which require equal skill, effort and responsibility, and (3) the employees perform under similar working conditions. Id. at 1310; 29 U.S.C. § 206(d). Here, defendant establishes the difference in skill between Calvello and Cirocco that would not have their jobs be considered equal work, denying her Equal Pay Act wage discrimination claim. Differences in their experience and training would also justify the differences in their salaries. See Ottaviani v. SUNY New Paltz, 679 F. Supp. 288, 339 (S.D.N.Y. 1988), aff'd, 875 F.2d 365 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990).
Thus, plaintiff's wage discrimination claim should be dismissed.
IV. Retaliation Claim
EDS contends that plaintiff cannot establish her retaliation claim because she did not engage in a protected activity (commencing litigation against EDS) until after she was notified of her termination. She was notified of her termination on March 29, 1999, given sixty days to find a new position within EDS, and was told that she had to sign a release in order to receive severance benefits. Plaintiff had not complained of receiving less pay than men prior to March 29, or did anything to join the Rehwaldt class. Plaintiff, however, claims retaliation from EDS prior to notification of the Rehwaldt class. This notification was submitted to all EDS female employees, while the termination days later did not include all female EDS employees. The fact that plaintiff's receipt of severance benefits (like the other terminated employees) was conditioned upon her executing a release was not retaliatory.
Plaintiff argues that the circumstances of the pendingRehwaldt class action (including EDS's notification of plaintiff), her termination, and the conditioning of her severance benefits on execution of a release when all parties were aware of the pending class action leads her to the conclusion that the release condition was in retaliation of plaintiff exercising (or potentially exercising) her rights to sue EDS in Rehwaldt.
The elements of a prima facie case of retaliation under Title VII and the New York State Human Rights Law are that plaintiff shows that she engaged in a protected activity; her employer was aware of that activity; the employer took adverse action against her; and a causal connection exists between the protected activity and the adverse act. Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001); Wanamaker v. Columbian Rope Co., 108 F.3d 2, 465 (2d Cir. 1997). Here, plaintiff cannot establish that she was engaged in protected activity when the alleged retaliatory activity occurred. If the condition of executing a release to obtain severance benefits is deemed to be the adverse act, she had not done anything to exercise her rights in theRehwaldt action to make that condition appear to be in retaliation of exercising those rights. Hence, summary judgment should be granted to defendant dismissing this claim.
CONCLUSION
Based upon the above, it is recommended that Defendant's motion (Docket No. 51) for summary judgment be granted in its entirety.Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and W.D.N.Y. Local Civil Rule 72.3(a). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Civil Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection.
SO ORDERED.