Appendix — New York City Housing Authority v. Owens

Buptens Court, U.S.

&3i° 498 FILLED

No. SP 17 9

oreie OF THE CLERK |

IN THE

Supreme Court of the United States

OctToser TERM, 1991

NEW YORK CITY HOUSING AUTHORITY, HENRY

BRESKY, JOHN ARAKEL, LEO LIEBERMAN, LARRY

LEFKOWITZ, CYRIL GROSSMAN and RITA COSS,

Petitioners,

VS.

CATHERINE OWENS.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUiT

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

SUZANNE M. LyNn

Attorney for Petitioners

75 Park Place

New York, New York 10007

(212) 776-5197

TABLE OF CONTENTS

Catherine Owens v. New York City Housing

Authority, et al., 934 F.2d 405; 1991 U.S. App.

LEXIS 10373; 55 Fair Empl. Prac. Cas. (BNA)

1604; 56 Empl. Prac. Dec. (CCH) P 40,774 (2d

SA MR tate<ésdotp evadevoeeN aaa wenaneeees

Catherine Owens v. New York City Housing

Authority, et al., 84 Civ. 4932 (CSH), 1990

U.S. Dist. LEXIS 4661 (S.D.N.Y. April 23,

RRR ine pA entrar ay eRe eee MER ae

Catherine Owens v. New York City Housing

Authority, et al., 84 Civ. 4932 (CSH), 1987

U.S. Dist. LEXIS 6891 (S.D.N.Y. July 30,

ARR Pre: pee

Danielson v. City of Lorain, No. 90-3666, 1991

U.S. App. LEXIS 15252; 56 Fair Empl. Prac.

Cas. (BNA) 614 (6th Cir. July 16, 1991) ......

Mlinaric v. Hannifin, No. 87-3112, 1988 U.S.

App. LEXIS 10694 (memorandum decision

reported at 853 F. 2d 927) (6th Cir. Aug. 5,

ME Nos Wac UCU OTe Wala Uk hale Bates 6480 Sid 4

Administrative Trial Officer’s Report and

Recommendation to the Housing Authority

regarding Ms. Owens Disciplinary Trial.......

Opinion of the Supreme Court, New York County

in Owens v. New York City Housing Authority

ere rey Perr re rer rr? Pree er

Excerpt from Catherine Owens’s EEOC “Charges

of Discrimination” filed and subscribed to on

errr Terre ore

Page

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A-13

A-25

A-36

A-43

A-59

A-83

A-87

Letter from Cathrine Owens to EEOC dated

WE Ss, NE so os cae vcns dee

Excerpt from Housing Authority’s Brief to the

United States Court of Appeals for the Second

Circuit in Owens v New York City Housing

serine TT ah a.

Excerpts from Catherine Owens’ brief to the

United States Court of Appeals for the Second

re en re ICS ts.

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CATHERINE OWENS, Plaintiff-Appellant, Cross Appellee, v.

NEW YORK CITY HOUSING AUTHORITY, H. BRESKY,

J. ARAKEL, L. LIEBERMAN, L. LEFKOWITZ,

C. GROSSMAN, and R. COSS, Defendants-Appellees,

Cross Appellants

Docket No. 90-7527, 90-7541

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

934 F.2d 405

January 14, 1991, Argued

May 21, 1991, Decided

PRIOR HISTORY:

Appeal from an opinion and order of the Southern District of

New York dated April 30, 1990 (Charles S. Haight, Judge), grant-

ing summary judgment to defendants on plaintiff's employment

discrimination and retaliation claims under the Age Discrimina-

tion in Employment Act, 29 U.S.C. @ 621, et seq., and Title

VII, 42 U.S.C. @ 2000e, et seq.

DISPOSITION: Judgment reversed and remanded; cross appeal

dismissed.

COUNSEL: MARTIN F. MARVET, Cleary, Gottlieb, Steen &

Hamilton, New York, New York (Richard F. Ziegler, Of Counsel),

for Appellant and Cross Appellee.

HENRY SCHOENFELD, New York City Housing Authority

Law Department (Manuel H. Quintana, General Counsel), for

Appellee and Cross Appellant.

JUDGES: Oakes and Walker, Circuit Judges, and Wexler,

District Judge.*

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* Hon. Leonard D. Wexler, United States District Court for

the Eastern District of New York, sitting by designation.

OPINION BY: WALKER

OPINION: [**406] Plaintiff Catherine Owens appeals from a

grant of summary judgment in favor of defendants New York

City Housing Authority and individual employees Arakel, Bresky,

Lieberman, Lefkowitz, Grossman, and Coss (collectively, the

Housing Authority), on her claims under the Age Discrimina-

tion in Employment Act, 29 U.S.C. @ 621, et seq. The district

court ruled that the adverse outcome of disciplinary charges

litigated in state court precluded her from proving that she was

qualified for the job — an essential element on her claim of

age discrimination — and that her claim of retaliation should

be dismissed for lack of subject matter jurisdiction, since it had

not been first filed with the Equal Employment Opportunity

Commission (EEOC). Since we disagree with both rulings, we

reverse and remand for further proceedings.

BACKGROUND

In January, 1977, the Housing Authority hired Catherine

Owens. In 1978, Owens became a “housing assistant,” responsible

for maintaining records and reports and for meeting with

tenants. Three years later, at the age of 51, she began working

at LaGuardia Houses, a housing project managed by the

Authority. In late 1981, defendant Lawrence Lefkowitz became

Assistant Manager of LaGuardia Houses and, in late 1982, defen-

dant John Arakel became Housing Manager. Lefkowitz and

Arakel supervised Owens.

Owens’ relationship with Lefkowitz and Arakel was strain-

ed. Owens alleges that in early 1983, Lefkowitz began to in-

terfere [**407] with the performance of her job and verbally

abused her. According to Owens, Lefkowitz told Owens that

her “problems” had to do with her age and entry into

menopause. Owens says that Arakel also abused her verbally

and interfered with her work. She alleges that this abuse by both

supervisors on occasion extended to physical pushing or shoving.

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Starting in February, 1983, Owens began to complain about

Arakel and Lefkowitz. She raised the issue of her supervisors’

behavior in several letters to Housing Authority superiors and

requested transfer to another project. She also sought the

assistance of the Institute for Mediation and Conflict Resolu-

tion (“IMCR”), where she filed actions against both Arakel and

Lefkowitz. Lefkowitz appeared before an IMCR mediator in

April, 1983, who thereupon issued an award requiring Lefkowitz

and Owens not to harass or menace each other. The IMCR ac-

tion against Arakel was later transferred to criminal court, where

in August, 1983, Owens received a protective order directing

Arakel to stay away from her.

At the end of March, 1983, at the request of Arakel and

Lefkowitz, the Housing Authority suspended Owens without

pay and required her to submit to psychiatric [*4] evaluation.

The test results, however, found no reason to disqualify her

from her position as housing assistant. In May, 1983, at Owens’

request, she was transferred to another project, Carver Houses.

Sometime during the spring of 1983, and after she had con-

tacted the Housing Authority’s internal office for equal employ-

ment opportunity, Owens took her complaints to the New York

State Division of Human Rights and the EEOC. On June 27,

1983, acting pro se, she filed formal charges with the EEOC

against the Housing Authority, Arakel, and Lefkowitz. On April

8, 1984, the EEOC issued Owens a right to sue letter.

In the meantime, in August, 1983, the Housing Authority filed

fourteen formal disciplinary charges against Owens. Except for

the first charge, which alleged that Owens had been disrespectful

to another supervisor in July 1981, the charges were based on

the reports of Arakel and Lefkowitz, and concerned incidents

allegedly occurring during the period July 21, 1981, to March

29, 1983. Twelve of the thirteen charges alleged, among other

things, that Owens had been disrespectful, insubordinate, and

abusive. The thirteenth alleged that Owens had not properly

performed her duties of processing tenant income reports.

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Shortly after filing these disciplinary charges, the Housing

Authority, through its counsel, began settlement talks with

Owens, who was represented by counsel. Negotiations then broke

off when, according to Owens’ counsel, the Housing Authority

refused to engage in plea-bargaining because Owens had filed

charges with the EEOC. At no time, however, did Owens file

charges with the EEOC complaining of retaliation for the Hous-

ing Authority’s refusal to plea bargain.

After settlement efforts failed, a Housing Authority hearing

officer conducted a full hearing, over eight days between August

and December 1983, on the disciplinary charges brought against

Owens. Pursuant to N.Y. Civil Service Law @ 75(2), Owens was

permitted to be represented by counsel and to present and ex-

amine witnesses. On all but the last day in which she chose to

represent herself, Owens was represented by counsel. Owens,

Lefkowitz, Arakel, and the 1981 supervisor testified. The hear-

ing officer found each of the fourteen charges proven, concluded

that Owens’ behavior was “disorderly,” “disruptive,” “insubor-

dinate,” and “abusive,” and recommended dismissal. The Housing

Authority adopted the findings and in June, 1984, terminated

her employment.

Owens then commenced a proceeding in New York State

Supreme Court under Article 78, N.Y. Civ. Prac. L. & R., to

review the administrative decision. In a decision dated February

25, 1985, the Article 78 court upheld the hearing officer’s find-

ing of “gross insubordination.”

In July, 1984, shortly after she received her right-to-sue let-

ter from the EEOC, but before her discharge had been affirmed

by the Article 78 court, Owens commenced the [**408] instant

action. She claims that (1) her termination was the result of age

discrimination or, alternately, was in retaliation for letters to

superiors complaining of age discrimination, all in violation of

the ADEA; and (2) after she filed charges with the EEOC on

her age clairn and wrote letters to her superiors claiming race

as well as age discrimination, the Housing Authority retaliated,

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in violation of the ADEA and Title VII, by refusing to plea-

bargain her disciplinary charges:

In October, 1985, the Housing Authority unsuccessfully moved

for summary judgment. The district court rejected the Hous-

ing Authority’s argument that no genuine issue of fact existed

as to Owens’ qualifications. The district court also found that

by presenting direct evidence of discrimination, Owens had

raised a triable issue as to whether defendants’ allegations of

insubordination and incompetence were pretextual. The district

court relied primarily on Lefkowitz’s reported comment con-

cerning Owens’ age and entry into menopause, noting that the

comments were “direct evidence” of Owens’ supervisor’s state

of mind. The district court also rejected the Housing Authority’s

argument that res judicata precluded Owens’ federal claims,

because the Article 78 reviewing court could not have considered

an age discrimination claim brought by Owens.

The district judge later granted permission to the Housing

Authority to move for summary judgment a second time. The

district judge granted this second motion. He ruled that the state

court proceedings which affirmed the Housing Authority’s guilty

findings on the disciplinary charges precluded her from litigating

' ADEA provides:

It shall be unlawful for an employer to discriminate against any of his

employees . . . because such individual, member or applicant for member-

ship has opposed any practice made unlawful by this section, or . . . made

a charge, testified, assisted or participated in any manner in an investigation,

proceeding, or litigation under this chapter.

29 U.S.C. @ 623(d). Title VII provides:

It shall be an unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has opposed any practice made

an unlawful employment practice by this subchapter, or because he has made

a charge, testified, assisted, or participated in any manner in an investiga-

tion, proceeding, or hearing under this subchapter

42 US.C. @ 2000e-3(a).

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the issue of her qualification for the job, and thus from

establishing a prima facie case of age discrimination. The district

judge also dismissed plaintiffs claim of retaliation arising out

of the Housing Authority’s refusal to plea bargain, on the

grounds that subject matter jurisdiction was lacking since the

retaliation claim was not the subject of a prior complaint to the

EEOC. -

Owens appeals both rulings. A cross-appeal by the Housing

Authority was not pressed and is deemed abandoned.

DISCUSSION

We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court. We must

‘ determine whether “a genuine issue as to any material fact exists

and if the moving party is entitled to judgment on the merits.”

Taggart v. Time, Inc., 924 F.2d 43, 45-46 (2d Cir. 1$90). In

deciding a summary judgment motion, “it is not the trial court’s

function to weigh the evidence and resolve the factual issues;

rather, its role on such a motion is to determine as a threshold

matter whether there are genuine unresolved issues of material

fact to be tried.” Gibson v. American Broadcasting Cos., 892

F.2d 1128, 1132 (2d Cir. 1989). On appeal, all doubts in the fac-

tual record must be resolved in favor of the non-movant. Tag-

gart, 924 F.2d at 45-46.

A. The Age Discrimination Claim

We turn first to the district court’s decision that the state court

finding of misconduct collaterally estopped Owens from present-

ing a prima facie case of age discrimination under the test set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). McDonnell Douglas, which applies to ADEA actions,

see Montana v. First Fed. Savings & Loan Ass’n [**409] of

Rochester, 869 F.2d 100, 103 (2d Cir. 1989), requires a plaintiff

alleging discriminatory termination to show (1) that she is within

the protected class; (2) that she is qualified for the position; (3)

that she has been terminated; and (4) that a younger individual

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has replaced her. Id. Once the prima facie showing is made,

the employer bears the burden of demonstrating legitimate non-

discriminatory reasons for the discharge. If the employer is able

co demonstrate such reasons, the burden again shifts to the

employee to show that the articulated reason is pretextual. See

also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

252-53 (1981).

Owens does not here dispute the state court findings

of misconduct. She does argue, however, that the finding

should not be held to preclude her from proving the second

element of a prima facie claim under McDonnell Douglas —

that she is qualified for the position of housing assistant. We

agree.

In order to apply the doctrine of collateral estoppel or issue

preclusion, there must be an identity of issue between the prior

action and the present action. The issue must actually have been

resolved in the prior action, and resolution of the issue must have

been necessary. Further, there must have been “a full and fair

opportunity to contest the decision said to be controlling.”

Schwartz v. Public Adm’r, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955,

960, 246 N.E.2d 725, 729 (1969); see also D’Arata v. New York

Central Mutua! Ins., 76 N.Y.2d 659, 665-66, 563 N.Y.S.2d 24,

28, 564 N.E.2d 634, 638 (1990).

Here, while the state court issue — misconduct — was

necessarily resolved after a full and fair opportunity to contest

it, the issue was not the same as the one said to be precluded

— job qualification. McDonnell Douglas requires only a

minimal showing of qualification to establish a prima facie

claim. Owens only needs to demonstrate that she “possesses the

basic skills necessary for performance of [the] job.” Powell v.

Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439

U.S. 984 (1978).

The state court never passed on Owens’ competence to per-

form her work. Rather, it upheld the Trial Officer's findings of

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misconduct and “gross insubordination.” We have no doubt that

such misconduct may certainly provide a legitimate and non-

discriminatory reason to terminate an employee. This miscon-

duct is distinct, however, from the issue of minimal qualifica-

tion to perform a job. An individual may well have the ability

to perform job duties, even if her conduct on the job is inap-

propriate or offensive. Accordingly, the finding of misconduct

here cannot preclude Owens from showing her qualification for

employment as required by McDonnell Douglas.

We note that in the first opinion denying summary judgment,

the district court ruled that by presenting evidence of “com-

petence,” Owens had succeeded in raising a genuine issue as to

her qualification for the job. The district court denied summary

judgment to defendants on that basis. The conclusion was based

on evaluations of Owens’ work by individuals other than Arakel

and Lefkowitz, whose relationship with Owens was admittedly

poor.

Owens should not have been precluded by the state court find-

ing of misconduct from litigating her qualification to perform

her job.

Since we are remanding on the issue of job qualification, there

is no need to address Owens’ further argument that she has pro-

duced sufficient direct evidence of discrimination to entitle her

to bypass the requirements of McDonnell Douglas altogether,

and to show simply that an “illegitimate factor played a

motivating or substantia! role” in her firing. See Grant v. Hazelett

Strip-Casting, 880 F.2d 1564, 1568 (2d Cir. 1989).

The Housing Authority further contends that even if the state

misconduct findings do not negative job qualification, they

* The fact that one of the fourteen disciplinary charges concerned “in-

competence” does not change our conclusion. The finding of incompetence

was clearly not necessary to the trial officer's conclusion that discharge was

an appropriate sanction. The finding is thus without preclusive effect.

Moreover, the Article 78 court did not mention that charge. Rather, it upheld

the discharge as justified by “gross insubordination.”

AY

demonstrate that Owens’ discharge was based on legitimate [*13]

non-discriminatory grounds and that summary judgment should

have been granted on that basis. The problem with this argu-

ment, however, is that the district court found that Owens had

presented sufficient direct evidence of age discrimination based

on comments by Arakel and Lefkowitz to withstand summary

judgment. The Housing Authority’s rejoinder that the evidence

of these comments is uncorroborated and not credible is a jury

argument inappropriate on a motion for summary judgment

where every reasonable inference is to be drawn in favor of the

non-movant.

Only if no reasonable trier of fact could find in favor of the

non-moving party should summary judgment be granted. Tag-

gart, 924 F.2d at 46. Here the district court correctly found that

the reported comments of Arakel and Lefkowitz relating to

Owens’ age raised a triable issue as to whether the articulated

reasons for her firing were pretextual. While the statements

presented were not numerous, they were made by individuals

with substantial influence over Owens’ employment. Arakel and

Lefkowitz supervised Owens and were responsible for the vast

majority of the disciplinary charges brought against her. Draw-

ing all factual inferences in favor of Owens, as we must, we agree

that the comments of Arakel and Lefkowitz raise a genuine issue

of fact on the issue of pretextuality.

Lastly, the Housing Authority argues in support of the judg-

ment below that Owens’ claims are barred by the doctrine of

res judicata, since the Article 78 review proceeding provided

Owens with a full and fair opportunity to raise her retaliation

and discrimination claims. The Housing Authority is plainly

wrong.

Under New York law, the Article 78 proceeding was limited

to the issues of whether the administrative determination was

made in violation of lawful procedure, was arbitrary or

capricious or an abuse of discretion, or was not supported by

substantial evidence. N.Y. Civ. Prac. L. & R. @ 7803(3) and (4).

The Article 78 reviewing court was not empowered to address

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Owens’ claims of discrimination or retaliation. Owens’ claims

are not barred by the doctrine of res judicata.

B. Subject Matter Jurisdiction over the Retaliation Claim

The district court found that subject matter jurisdiction did

not exist over Owens’ claim that the Housing Authority had

retaliated against her by refusing to plea bargain her disciplinary

charges. The district court reasoned first that since the charges

had not been filed with the EEOC before being presented to

the district court, and were not otherwise “reasonably related”

to the allegations in the complaint that was filed with the EEOC,

it could not hear the retaliation claim under 29 U.S.C. @ 626(d).’

See Almendral v. New York State Office of Mental Health, 743

F.2d 963, 967 (2d Cir. 1984).

It is undisputed that this claim of retaliation arises out of in-

cidents subsequent to the filing of the EEOC complaint. Our

prior rulings make clear, however, that her retaliation claim must

nonetheless be considered “reasonably related” to the complaint

she filed with the EEOC.

We have previously held that when an employee brings a claim

alleging retaliation {**411] for filing a complaint with the

EEOC, the retaliation claim is deemed “reasonably related” to

the original EEOC filing. In such a case, the allegations of

retaliation are seen as stemming from the earlier discriminatory

incident, including plaintiff's attempt to vindicate her federal

* The Housing Authority does not contend that Owens needed to file a separate

complaint with the EEOC covering her contention that the Housing Authority

pressed disciplinary charges resulting in discharge in retaliation for her in-

house complaints about her supervisors. The argument is based on essentially

the same factual allegations presented in the age discrimination complaint

that was filed with the EEOC. It simply offers a different theory for the adverse

personnel action. The complaint Owens filed with the EEOC gave the New

York City Housing Authority adequate notice of her allegations and oppor-

tunity for conciliation. Cf. Snell v. Suffolk Cty., 782 F.2d 1094, 110] (2d Cir.

1986); Almendral v. New York State Office of Mental Health, 743 F.2d 963,

967 (2d Cir. 1984).

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rights against discrimination. The retaliation claim may thus

be heard notwithstanding plaintiffs failure to state it in a

separate complaint filed with the EEOC.

In Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981),

we held that plaintiff's claim that he was transferred out of the

country in retaliation for his EEOC complaint alleging age

discrimination in the failure to promote him was “reasonably

related” to the complaint. See also Kirkland v. Buffalo Board

of Education, 622 F.2d 1066 (2d Cir. 1980) (per curiam).

We note that Halpert v. Wertheim & Co., Inc., 81 F.R.D. 734

(S.D.N.Y. 1979), on which the district court relied, was decided

prior to our adoption of the “reasonable relationship” test in

Kirkland, supra. Miller v. International Tel. & Tel. Co., 755 F.2d

20 (2d Cir.), cert. denied, 474 U.S. 851 (1985), also relied upon

by the district court, is inapposite. Miller holds only that a failure

to rehire claim is not “reasonably related” to a claim based on

an earlier dismissal. Miller in no way alters the rule set forth

in Goodman and Kirkland that a claim alleging retaliation for

an employee's filing of charges with the EEOC is reasonably

related to that complaint.

Owens alleges that the Housing Authority retaliated against

her for filing with the EEOC by refusing to plea bargain her

disciplinary charges. Since her claim is reasonably related to

her EEOC filing, the district court should have found subject

matter jurisdiction over the retaliation claim.

On appeal, the Housing Authority does not press the argu-

ment that the claim is not reasonably related to the EEOC com-

plaint; [*18] rather, it argues that a failure to plea bargain does

not constitute an “adverse employment action,” within the mean-

ing of the ADEA. See, e.g., Grant v. Bethlehem Steel, 622 F.2d

43, 46 (2d Cir. 1989) (Title VII) (“an employment action or ac-

tions disadvantaging persons engaged in protected activities’’).

Whether this is so, however, should be decided in the first in-

stance by the district court, upon an appropriate motion follow-

ing remand.

—— SSeS

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In sum, Owens is not precluded by the state court ruling on

misconduct from proving her qualification for her job on her

ADEA claim, and the district court should have exercised sub-

ject matter jurisdiction over Owens’ claim of retaliation. We

therefore vacate the district court’s grant of summary judgment,

dismiss the cross appeal, and remand for further proceedings

not inconsistent herewith.

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CATHERINE OWENS, Plaintiff, v. NEW YORK CITY

HOUSING AUTHORITY, H. BRESKY, J. ARAKEL,

L. LIEBERMAN, L. LEFKOWITZ, C. GROSSMAN, and

R. COSS, Defendants

No. 84 Civ. 4932 (CSH)

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

April 23, 1990, Decided and Filed

OPINION BY:

HAIGHT, JR.

OPINION: MEMORANDUM OPINION AND ORDER

CHARLES S. HAIGHT, JR., UNITED STATES DISTRICT

JUDGE

In obedience to the Court’s prior orders, the parties have

engaged in further discovery. Plaintiff now moves to compel the

production of additional documents. Defendants oppose that

motion and cross-move for summary judgment. This is defen-

dants’ second summary judgment motion.

The factual background of this case is recited at length in the

Court's prior opinions, with which familiarity is assumed. In

brief, plaintiffs claims against defendants are for retaliation

under Section 704(a) of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. @ 2000e-3(a), and Section 4(d) of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

@ 623(d), and for age discrimination under the ADEA. Plain-

tiffs claims arise out of the disciplinary charges and disciplinary

proceeding brought against her while she was employed as a

Housing Assistant at defendant New York City Housing Author-

ity’s LaGuardia Houses. The individual defendants were involved

in one way or another with plaintiff during her employment

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with the Housing Authority. The disciplinary proceeding resulted

in plaintiffs termination from her job with the Housing Author-

ity on June 8, 1984. Plaintiff claims that the disciplinary charges

and proceedings resulting in her termination were brought

against her on the basis of her age and in retaliation for actions

she had taken which were protected under Title VII or ADEA.

The ADEA Claim

Plaintiff would make out a prima facie case of an ADEA viola-

tion by establishing that she was (1) a member of the protected

class, (2) qualified for her job, (3) fired, and (4) replaced by

a younger individual. Discharge under those particular cir-

cumstances gives rise to a rebuttable inference of discrimina-

tion on account of age. Benjamin v. United Merchants and

Manufacturers Inc., 873 F.2d 41, 42 (2d Cir. 1989); Bonura v.

Chase Manhattan Bank, N.A., 795 F.2d 276, 277 (2d Cir. 1986);

Haskell v. Kaman Corp., 743 F.2d 113, 119 n.1 (2d Cir. 1984).

Summary judgment for a defendant is appropriate if after

discovery it appears that the plaintiff cannot show any one of

the four elements of a prima facie case. That is because, absent

such proof, no inference of age discrimination arises and there

is nothing for defendant to rebut.

In the case at bar, defendants contend that no genuine issue

as to any material fact exists with respect to the second element,

plaintiff Owens’ qualification for her job of Housing Assistant,

and the fourth element, her replacement by a younger in-

dividual, so that Rule 56(c), F.R.Civ.P., entitles defendants to

summary judgment on the age discrimination claim.

Defendants are clearly correct with respect to the second ele-

ment. In August 1983 plaintiff was formally charged by the

Housing Authority with thirteen separate violations and twenty-

seven separate specifications involving misconduct and in-

competency allegedly occurring during the period July 21, 1981

to March 29, 1983. The sustaining of such charges or any signifi-

cant portion of them would by definition demonstrate that plain-

tiff was not qualified for her job. Because plaintiff had previously

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completed a probationary period, she had achieved civil ser-

vice tenure and was entitled to the procedures specified in @

75(2) of the N.Y. Civil Service Law, whose provisions appear

in the margin. nl Jonathan E. Raines, a Trial Officer appointed

by the Housing Authority, conducted hearings on eight separate

days between August 3 and December 20, 1983. He heard the

testimony of a number of Housing Authority witnesses, the

testimony of the plaintiff, and examined various exhibits. He

found plaintiff guilty of substantially all of the charges and

specifications and recommended dismissal. The Trial Officer’s

written report concluded:

It is the finding and opinion of the undersigned, that the respon-

dent [plaintiff] engaged in disorderly and disruptive behavior

when assigned to the LaGuardia Houses and was insubordinate,

disrespectful, threatening, and abusive to her supervisors, to the

extent that the day to day operation of LaGuardia Houses were

adversely affected. . . . The respondent’s bad temper, abusive

and threatening language, and do as I please attitude, if per-

mitted to go unchecked, will cause irreparable harm and damage

for the authority, its employees and tenants. Therefore, it is the

recommendation of the undersigned, that the respondent be

dismissed as a housing assistant, as a just and proper sanction

for being found guilty of the herein serious charges.

nl N.Y. Civil Service Law @ 75(2) provides:

Procedure. A person against whom removal or other

disciplinary action is proposed shall have written notice thereof

and of the reasons there for, shall be furnished a copy of the

charges preferred against him and shall be allowed at least eight

days for answering the same in writing. The hearing upon such

charges shall be held by the officer or body having the power

to remove the person against whom such charges are preferred,

or by a deputy or other person designated by such officer or

body in writing for that purpose. In case a deputy or other

perons is so designated, he shall, for the purpose of such hear-

ing, be vested with all the powers of such officer or body and

shall make a record of such hearing which shall, with his

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recommendations, be referred to such officer or body for review

and decision. The person or persons holding such hearing shall,

upon the request of the person against whom charges are pre-

ferred, permit him to be represented by counsel, or by a

represenative of a recognized or certified employee organiza-

tion, and shall allow him to summon witnesses in his behalf.

The burden of proving incompetency or misconduct shall be

upon the person alleging the same. Compliance with technical

rules of evidence shall not be required.

The Housing Authority accepted that recommendation and

terminated plaintiff's employment. Plaintiff thereafter applied

to the New York State Supreme Court, New York County pur-

suant to N.Y.CPLR Article 78 for a judgment annulling that

dismissal. She alleged primarily that the Trial Officer violated

lawful procedure and that the penalty imposed was excessive.

The State Court (Ira Gammerman, J.) denied plaintiff's applica-

tion and dismissed her petition, concluding in a memorandum

opinion dated February 25, 1985: Petitioner was found guilty

of gross insubordination to three supervisors covering a twenty

month period despite numerous warnings and attempts at

counselling. The gravity of her offense and the hearing officer’s

finding of guilt are supported by overwhelming evidence which

is not challenged here. The penalty, which was properly imposed

subsequent to the findings of guilt, cannot be said to be

disproportionate so as to shock one’s sense of fairness.

Plaintiff took no appeal from that decision.

Plaintiff is precluded from relitigating in this federal court

an issue essential to her age discrimination claim. Bray v. New

York Life Insurance, 851 F.2d 60 (2d Cir. 1988), applies a for-

tiori and is dispositive. In Bray plaintiff sought to assert a Title

VII discrimination case in federal court after an unfavorable

determination by the New York State Division of Human Rights

and an application pursuant to CPLR Article 78 to the New

York State Supreme Court for judicial review. The state court

dismissed the Article 78 petition because the employee was one

day late in filing it. The Second Circuit held that the federal

A-17

court must give preclusive effect to the state court judgment and

that the federal claim was barred. Even as to a Title VII claim

brought in the federal court, “state law determines at least the

issue preclusive effect of a prior state judgment in a subsequent

action involving a claim within the exclusive jurisdiction of the

federal courts.” Marrese v. American Academy of Orthopaedic

Surgeons, 470 U.S. 373, 381 (1985). Because New York law con-

siders a dismissal on statute of limitations ground sufficient to

bar a second action, the Second Circuit held in Bray that plaintiff

“is precluded from relitigating her claims of race and sex

discrimination in federal court.” Id. at 63. Judge Pratt added:

Unfortunately for Bray, “[t]he crucial factor is that [she] chose

to submit her case to the state courts for review”. Sinicropi v.

Nassau Cty., 601 F.2d 60, 62 (2d Cir.) (emphasis in original) (per

curiam), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d

41] (1979). . . . Once a plaintiff has entered the state court

system, she is bound by the preclusion rules governing that

system, and the federal courts in turn must respect the finality

of the judgments that issue from the state court. Id. at 64.

Bray controls the case at bar a fortiori because here the state

court considered the merits of plaintiffs petition to review the

agency action, rather than dismissing the petition as time barred.

The rule in such cases derives from 28 U.S.C. @ 1738, which

bestows upon state court judicial proceedings “the same full faith

and credit in every court within the United States . . . as they

have by law or usage in the courts of such State . . .” see also

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982)

(Title VII claim in federal court precluded by state court deci-

sion affirming state agency’s rejection of discrimination claim);

cf University of Tennessee v. Elliott, 478 U.S. 788 (1986) (no

preclusive effect in Title VII claim where following adverse deci-

sion from state administrative agency plaintiff did not seek

judicial review in the state system).

Defendants are entitled to summary judgment dismissing

plaintiffs ADEA claim for age discrimination. n2

A-l §

n2 In these circumstance, I need not consider defendants’

additional contention that plaintiff could not succeed on

the fourth element of her ADEA claim, replacement by a

younger person. Defendants support that contention on this

motion by an affidavit of a Housing Authority witness tending

to show that plaintiff was replaced by a woman of comparable

age. But the Authority had acknowledged in earlier sworn

answers to interrogatories that younger individuals replaced

plaintiff. Defendant now says those answers were mistaken. I

would not preclude defendant from seeking to correct an error,

but plaintiff would be entitled to further discovery on the

issue if it were decisive. However, it is not. All four elements

of a prima facie ADEA claim must appear to require a defen-

dant to go forward, and plaintiff at bar cannot prove the second

element.

Retaliation Claim

Plaintiffs retaliation claims are summarized in her brief in

opposition to the present motion for summary judgment at 8:

In retaliation for Owens’ protective [sic; should read protected]

actions, the Housing Authority filed disciplinary charges alleg-

ing insubordination and misconduct against Owens. In addi-

tion, the Housing Authority refused to plea bargain the charges

brought against Owens, in retaliation of her having filed a com-

plaint with the EEOC.

As noted supra, the retaliation claims are asserted under both

Title VII, 42 U.S.C. @ 2000e-3(a), and the ADEA, 29 U.S.C.

@ 623(d).

In order for the district court to have subject matter jurisdic-

tion over a charge asserted under either statute, that charge must

first have been filed with the EEOC. O’Malley v. GTE Service

Corp., 758 F.2d 818 (2d Cir. 1985) (ADEA); Almendral v. New

York State Office of Mental Health, 743 F.2d 963 (2d Cir. 1984)

(Title VII).

A-19

By letter dated June 14, 1983, the Housing Authority placed

plaintiff on notice of charges against her for alleged incompe-

tency and misconduct. These are the charges and specifications

which eventually formed the subject matter of the hearings

before Trial Officer Raines discussed supra.

On June 27, 1983 plaintiff filed charges with the EEOC. The

EEOC complaint charged plaintiffs superiors with harassment

and with the bringing of charges against her seeking her

dismissal, those being the charges specified in the Housing

Authority’s June 14, 1983 letter. Plaintiffs EEOC complaint

charged discrimination on the basis of her sex (female), religion

(Christian), age (53), and race (black). By certified letter dated

April 9, 1984 the EEOC issued its “determination as to the

merits” of plaintiff's charges. The EEOC referred to the charges

of discrimination by harassment due to race, sex, religion and

age, and notified plaintiff that the EEOC had concluded its pro-

cessing of both the Title VII and ADEA allegations of the com-

plaint. A notice of right to sue was sent to the plaintiff, and

she was advised of her statutory rights to commence litigation

in the federal district court.

Plaintiff's June 1983 EEOC complaint contained no charge

of retaliation. Plaintiff first asserted specific claims of retalia-

tion in 1985 in papers opposing defendants’ first motion for sum-

mary judgment. Specifically, plaintiff alleged that in August

1983 the Housing Authority’s disciplinary hearing attorney stated

that he had refused to consider “plea-bargaining” the

disciplinary charges then being heard by Trial Officer Raines

because plaintiff had filed a charge with the EEOC. Plaintiff

also asserted for the first time in November 1985 the possibility

that the disciplinary charges had been preferred against her in

June 1983 because she had previously complained about her

supervisors to the Housing Authority’s in house Office of Equal

opportunity.

Defendants argue that they are entitled to summary judg-

ment on plaintiffs retaliation claim because that charge was

not first filed with the EEOC, thus depriving this Court of sub-

ject matter jurisdiction. I agree.

a

A-20

A retaliatory conduct charge may not be considered by the

district court unless it was separately submitted to the EEOC

unless, even absent such separate submission, “such claim is

found to be of a continuing nature, or related to the original

charges”, Halpert v. Wertheim & Co., 81 F.R.D. 734, 735

(S.D.N.Y.) (Sweet, J.).

In Kirkland v. Buffalo Board of Education, 622 F.2d 1066,

1068 (2d Cir. 1980), a case upon which both parties at bar rely,

the Second Circuit dealt with the concept of a “reasonably

related” claim:

The issuance of a “right to sue” letter, although not constituting

aii open license to litigate any claim of discrimination against

an employer, does permit a court to consider claims of

discrimination reasonably related to the allegations in the com-

plaint field with the EEOC, “including new acts occurring dur-

ing the pendency of the charge before the EEOC.” Oubichon

v. North American Rockewll Corp., 482 F.2d 569, 571 (9th Cir.

1973).

Whether a subsequently asserted claim of discrimination is

reasonably related to charges in an EEOC complaint depends

upon the particular facts and circumstances. In Kirkland, plain-

tiffs EEOC complaint alleged that defendant had refused to

hire him in 1973 because of his race. The EEOC issued plain-

tiff a “right to sue” letter in May 1977. Shortly before issuance

of that authorization, the position in question again became

available. Plaintiff again applied, and was again rejected. His

Title VII suit in the district court claimed violations in refus-

ing to hire him both in July 1973 and in May 1977. The Second

Circuit held that even though the 1977 refusal to hire was not

included in the plaintiffs EEOC complaint, he was not required

to file a second EEOC complaint and obtain a second authoriza-

tion to sue. The court of appeals rejected the employer’s theory

that a person claiming that he was wrong fully and repeatedly

denied employment must obtain a separate “right to sue” letter

for each incident, regardless for any interrelationships between

the separate denials. 622 F.2d at 1068.

ee

A-21

The court, after stating the general rule quoted above,

observed: Appellee Kirkland alleges, and the district court found,

that the decision to deny Kirkland employment in May 1977

was in retaliation for Kirkland’s initiation of litigation regard-

ing the July 1973 refusal to hire him. Thus, the two claims of

discrimination were directly related. Ibid.

In Almendral v. New York State Office of Mental Health,

supra, the Second Circuit cited Kirkland and held that claims

asserted in the district court were reasonably related to the

EEOC charges in the following circumstances:

In the instant case, defendants’ alleged subsequent acts are essen-

tially the same as the earlier allegedly wrongful conduct con-

tained in the EEOC complaint: namely, alleged manipulation

of the civil service rules for discriminatory reasons in order to

appoint someone other than Almendral. 743 F.2d at 967.

The factual circumstances in Kirkland and Almendral may

be contrasted with Miller v. International Telephone and

Telegraph Corporation, 755 F.2d 20 (2d Cir. 1985). Plaintiff's

EEOC complaint charged his employer with age discrimina-

tion in discharging him in April 1979. Plaintiff had not made

a timely filing with the EEOC, but attempted to meet that

problem by contending in the district court that his employer

engaged “in a continuing violation as to him by the refusal of

its subsidiaries to rehire him at a point within the statutory

period,” one such application having been made in 1980, within

300 days of the date he filed his claim with the EEOC. 755 F.2d

at 25. The Second Circuit rejected that contention:

because no such claim of failure to rehire was made in Miller’s

EEOC complaint. . . . Absent the filing of such a claim with

the EEOC it could not become the basis of the present action.

... There would be no reason for the EEOC to investigate the

failure to rehire in connection with the claim of alleged

discriminatory discharge unless the former were asserted as part

of that claim, which it was not. The purpose of the notice pro-

vision, which is to encourage settlement of discrimination

A-22

disputes through conciliation and voluntary compliance, would

be defeated if a complainant could litigate a claim not previously

presented to and investigated by the EEOC.

Id. at 25-26.

In the course of its discussion the court of appeals cited cases

for the propositions that a “charge of illegal layoff does not en-

compass failure to rehire”, and “a refusal to reinstate is separate

claim from dismissal.” Id. at 25.

In Halpert v. Wertheim & Co., Inc., supra, the plaintiff's

EEOC complaint charged the employer with terminating her

employment because of her sex on August 5, 1977. She reiterated

that charge in her Title VII action in the district court, but

sought to amend her complaint to add a claim alleging

retaliatory conduct by the employer, taking the form of an at-

tempt to arbitrate her claim. Judge Sweet refused the amend-

ment because the retaliatory conduct alleged did not relate to

the original charge filed with the EEOC. He wrote at 81] F.R.D.

735:

Although the retaliatory conduct may continue to date, it was

not of a continuing nature vis a vis the original allegations filed

with the EEOC. The retaliatory conduct here alleged is com-

pletely separate and distinct from the conduct originally com-

plained of —discrimination based upon sex as opposed to

retaliatory conduct in seeking arbitration of the dispute; in fact,

relief is sought under different statutory provisions. Therefore,

there has been no tolling of the time period in which to file with

the EEOC.

Turning to the case at bar, it is apparent that plaintiffs claims

of retaliatory conduct asserted in this litigation were not

presented to the EEOC for investigation and conciliation, and

are not reasonably related to the claims that were so presented.

Plaintiff's claim that in August 1983 the Housing Authority’s at-

torney refused to consider plea-bargaining the disciplinary

charges in retaliation for the EEOC filing is closely analogous

A-23

to the retaliatory conduct alleged in Halpert, and is as separate

and distinct from the discriminatory conduct originally com-

plained of as was the conduct in that case. Plaintiff's second sug-

gestion of retaliatory conduct is that her earlier complaint to

the Housing Authority’s in-house office of Equal Opportunity

may have caused retaliatory disciplinary charges to be preferred

against her in June 1983. Plaintiff was on notice of those

disciplinary charges at least ten days before filing her EEOC

complaint, which as noted refers specifically to the disciplinary

proceeding. That claim of retaliatory conduct could have been

included in the EEOC complaint, but it was not, and is not

reasonably related to the charges of discrimination which plain-

tiff did assert.

Plaintiff argues in her brief at 3] that her letter to the EEOC

of March 14, 1984 “enunciated her retaliation claim and thereby

provided the EEOC with the requisite notice.” I have considered

that letter but cannot accept counsel’s characterization. The

word “retaliation” appears in the fourth paragraph of the let-

ter, but the context has to do with plaintiff's requests to be

transferred from the Wagner Houses project to another project

operated by the Housing Authority. Plaintiff wrote to the EEOC

in part:

Even after I moved to Staten Island and car fare was $ 4.5C per

day ($ 22.50 per week), I was still not allowed to transfer and

was there [at Wagner Houses] for almost three years. As retalia-

tion for my requests for transfers I was written up. This is clearly

not the sort of retaliatory conduct which plaintiff now seeks to

allege in this litigation. Indeed, retaliation because of a request

for transfer, even assuming it occurred, would not constitute

retaliation because of conduct protected by either statute.

The able briefs of counsel address other issues. In the view

I take of the case I need not deal with them, except to say that

there is nothing in the procedural history of the case or in the

record constituting a waiver by defendants of the contentions

upon which summary judgment in their favor is now granted,

or estopping them from making those contentions.

A-24

Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment is granted. The Clerk of the Court is directed to dismiss

the complaint in its entirety with prejudice and without costs.

I deny plaintiffs motion to compel additional discovery. There

is nothing in the material sought to be discovered which would

alter the foregoing analysis.

It would not be right to conclude this opinion without

expressing the Court’s appreciation to the firm of Cleary,

Gottlieb, Steen & Hamiliton and to the attorneys associated with

that firm who have represented plaintiff at the Court's request

as a form of public service. That the facts and circumstances

seem to me at least to require judgment in defendants’ favor

is surely no reflection upon the energy, skill and dedication which

plaintiff's counsel have demonstrated throughout the litigation.

Their service has been in the highest tradition of the Bar, and

I express to them and to their firm the gratitude of the Court.

Dated: New York, New York

April 23, 1990

A-25

Catherine Owens, Plaintiff, v. New York City Housing Authority,

H. Bresky, J. Arakel, L. Lieberman, L. Lefkowitz,

C. Grossman and Rita Coss, Defendant

84 Civ. 4932 (CSH)

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

1987 U.S. Dist. LEXIS 6891

July 30, 1987, Decided; July 31, 1987, Filed

OPINION BY:

HAIGHT

OPINION: MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

On June 8, 1984, after an administrative hearing, plaintiff

Catherine Owens was terminated from her job as a Housing

Assistant with the New York City Housing Authority. In this ac-

tion she alleges that her termination and certain other adverse

employment actions were unlawfully motivated by her age, sex,

religion and race and constitutes unlawful retaliation for hav-

ing opposed discriminatory practices and filed charges with the

EEOC. Owens has now abandoned the religion, sex, and race

claims. Accordingly the claims for age discrimination and

retaliatory discharge remain. Defendants move for summary

judgment on two alternative grounds: the absence of a genuine

issue of materia! fact on these claims, and res judicata.

Owens was hired by the Housing Authority as a typist January

31, 1977. After passing a civil service examination, she became

a Housing Assistant on July 31, 1978, responsible for maintain-

ing records and reports and conducting daily meetings with

tenants. Owen Aff. para. 2. She began working at “LaGuardia

Houses” in August 1981.

A-26

In October 1981, Lawrence M. Lefkowitz became Assistant

Manager of LaGuardia Houses, and in December 1982, John

S. Arakel became Housing Manager. Owens’ relationships with

Lefkowitz and Arakel soon soured. In September, 1982, Owens

complained to her union representative about Lefkowitz. In

February 1983, she says, Lefkowitz began interfering with the

performance of her job and “began to verbally abuse me and

suggested that my alleged ‘problems’ had to do with my age and

entering menopause.” Owens Aff. para. 6. Around the same time,

she asserts, Arakel also began verbally abusing her and interfer-

ing with her work. Owens Aff. para. 7. There were pushing and

shoving incidents with both Arakel and Lefkowitz. para. 8.

Beginning in March, 1983, Owens wrote a number of letters

to Housing Authority superiors complaining of her supervisors’

“harassing behavior” and seeking a transfer to another housing

project. paras. 9, 12. After being suspended without pay by

Arakel and Lefkowitz from March 28, 1983 through May 6, 1983

for psychiatric evaluation — an evaluation that found no reason

to disqualify her from employment — she was transferred on

May 9, 1983 to another project, Carver Houses.

Meanwhile, Owens had sought the assistance of the Institute

for Mediation and Conflict Resolution, Inc. (“IMCR”). On April

7, 1983, IMCR issued an arbitration “award” directing Lefkowitz

and Owens to leave each other alone. Her case against Arakel

was transferred to Criminal Court, New York County which

on August 18. 1983 issued a protective order directing Arakel

to “stay away from the home, school, business or place of employ-

ment of Catherine Owens.” para. 10; Ex. B to Owen Aff.

In February or March, 1983, Owens also contacted the Hous-

ing Authority’s internal office for equal employment opportunity.

When in June 1983 no action had been taken by that office, she

contacted the New York State Division of Human Rights

(“NYDHR’) and the Equal Employment Opportunity Commis-

sion (“EEOC”), and on June 27, 1983, she filed charges with

the EEOC against the Housing Authority, Arakel and Lefkowitz.

The EEOC found no probable cause, and issued her right to

sue letter April 8, 1984.

A-27

Defendants contend that these problems were caused by

Owens’ poor attitude and performance. They rely on the thir-

teen disciplinary charges filed against Owens on June 14, 1983.

Those charges cite numerous instances of insubordination and

incompetence. The first charge concerned alleged misconduct

July 21, 1981, before Lefkowitz and Arakel became her super-

visors. The remainder were during their administration.

A Housing Authority hearing officer conducted an eight-day

administrative hearing with the disciplinary charges filed against

Owens. Owens, Lefkowitz, Arakel, and Owens’ July 1981 super-

visor all testified. Owens was represented by counsel for all but

the last day. nl The hearing officer disbelieved Owens on vir-

tually every issue on which there was a factual dispute, found

her guilty of most of the charges and recommended that Owens

be terminated. The Housing authority confirmed his findings

and adopted his recommendation, and Owens was terminated

June 8, 1984. Owens then commenced a proceeding under Ar-

ticle 78, N.Y. Civ. Prac. L. & R., challenging her discharge. The

action was resolved against her February 25, 1985.

nl Owens chose to represent herself the eighth day of the

hearing.

I. The Existence of a Genuine Issue of Fact

A. Retaliation

Section 704(a) of Title VII of the Civil Rights Act of 1964

(“Title VII’) provides, in pertinent part:

It shall be an unlawful employment practice for an employer

to discriminate against [an employee] . . . because [the employee}

has opposed any practice made an unlawful employment prac-

tice by this subchapter, or because [the employee] has made a

charge . . . or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

42 U.S.C. @ 2000e-3(a). Substantially identical language ap-

pears in section 4 of the Age Discrimination in Employment Act

A-28

(“ADEA”), 29 U.S.C. @ 623(d). The protection of these provi-

sions does not depend on the validity of the underlying charges.

Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.

1978); Sims v. Mme. Paulette Dry Cleaners, 580 F. Supp. 593,

594 (S.D.N.Y. 1984).

To make out a prima facie case of retaliation, plaintiff must

show (1) protected porticipation or opposition under Title VII

or the ADEA; (2) an adverse employment action or actions

against her; and (3) “a causal connection between the two

elements, that is, a retaliatory motive playing a part in the

adverse employment actions.” Grant v. Bethlehem Steel Corp.,

622 F.2d 43, 46 (2d Cir. 1980). The causal connection may be

established circumstantially by showing that the adverse action

followed protected opposition or participation. Ibid. The ques-

tion is whether the employer took an adverse action against the

employee “at least in part” because of protected activity. Sim,

supra, 580 F. Supp. at 596.

There is no dispute that Owens engaged in protected “opposi-

tion” and “participation.” Owens complained of discriminatory

treatment by superiors in February or March, 1983 to the Hous-

ing Authority’s internal office for equal employment opportunity.

In June, 1983, she contacted the New York State Division of

Human Rights and the EEOC, and she filed charges with the

EEOC on June 27, 1983.

There is also no dispute that at least one adverse employment

action was taken against Owens: she was dismissed. n2

n2 Defendants do not concede that Owens was also harassed.

Defendants contend, however, that there is no genuine issue

of fact on the third element: causation. They note that the Hous-

ing Authority filed its disciplinary charges against Owens June

14, 1983, almost two weeks before Owens filed her charges with

the EEOC.

This chronology is not dispositive. First, Owens did com-

plaint to the Housing Authority’s internal equal employment

A-29

opportunity office before charges were preferred against

her. Moreover, Owens offers direct evidence that the Housing

Authority decided not to offer her a plea bargain because

she filed charges with the EEOC. Michael Shen, who re-

presented Owens at the disciplinary hearing, swears that he

met with Housing Authority attorney Jerome Weisberger in

August, 1983 to discuss a plea bargain that presumably would

have preserved Owens’ job. At a second meeting later that

month, however, Weisberger “stated that because Owens

had filed charges with the [EEOC] against the Housing Au-

thority, plea bargaining was no longer a possibility.” Shen Aff.

para. 5.

Weisberger disputes this version of the conversation. But

defendants do not dispute that, if true, plaintiff's version makes

out a claim of retaliation. The credibility issue is for the jury

to resolve. Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d

Cir. 1986), cert. denied, 107 S. Ct. 1570 (1987). n3

n3 Owens argues that a number of other facts also support

her retaliation claim. Because I deny defendants’ motion on this

claim based on the Weisberger-Shen dispute, I need not reach

these other grounds.

B. Age Discrimination

To establish her claim of discriminatory discharge based

on age, plaintiff must prove that her age was “a determining

factor” or “a factor that made a difference” in the Housing

Authority’s decision to terminate her. Haskell v. Kaman Corp.,

743 F.2d 113, 119 n.1 (2d Cir. 1984). Age need not be the sole

factor, only a “but for” factor. Hagelthorn v. Kennecott Corp.,

710 F.2d 76, 82 (2d Cir. 1983). She can make out a prima

facie case of discriminatory discharge by showing (1) that

she belonged to the protected age group (40 to 70 years of

age), (2) that she was “sufficiently qualified to continue holding

h[er] position,” (3) that she was discharged, and (4) that her

position was filed by a younger person or was held open for such

a person. Ibid.

A-30

If plaintiff meets this burden, the burden of production shifts

to the employer to adduce some legitimate non-discriminatory

reason for the discharge. The burden then returns to the plain-

tiff to show the articulated legitimate basis for the discharge

was pretextual. The burden of persuasion remains at all times

with the plaintiff. Ibid. At this juncture, of course, Owens need

only show there is a genuine issue of fact on these questions.

F. R. Civ. P. 56(c).

There is no dispute as to the first, third and fourth elements

of Owens’ prima facie case. Defendants do contend, however,

that she was not qualified for her job — that is the essence of

their articulated legitimate reason for the discharge. I find there

is a genuine issue of fact on this question.

Owens was a Housing Assistant for three years before

Lefkowitz became her supervisor. Apart from the single July

1981 incident, there is no reason to believe Owens was not

performing satisfactorily during this period. From references

in the depositions on file her work evaluations appear to have

been satisfactory. There is also no evidence that her work was

unsatisfactory between May 1983 and her discharge in June 1984,

when she worked at Carver Houses. Together with her own

averments that she performed satisfactorily, this is sufficient

evidence of competence to preclude summary judgment on this

issue. Cf. Meiri v. Dacon, 759 F.2d 989, 996 n.10 (2d Cir.),

cert. denied, 106 S. Ct. 91 (1985) (plaintiff's burden at prima

facie stage is de minimis). That supervisors Lefkowitz and

Arakel expressed dissatisfaction with her is not surprising,

if her averments as to the causes for the poor quality of

their relationships are believed, and does not undermine the

reasonable inference that she was competent arising from her

other periods of employment. See Hagelthorn, supra, 710 F.2d

at 82 (plaintiffs statement that “he received a good deal of

unjust abuse did not constitute an admission that . . . he was

considered inadequate” by his employer). Cf. Knight, supra,

804 F.2d at 11 (on a summary judgment, all ambiguities are to

resolved and all reasonable inferences are to be drawn in the

nonmovant’s favor).

A-31

Therefore, I find plaintiff has shown a genuine issue of fact

for trial on her prima facie case.

Plaintiff does not dispute that defendants’ allegations of in-

subordination and incompetence meet their obligation to ad-

duce legitimate non-discriminatory reasons for the discharge.

The question, then, is whether plaintiff has adduced suffi-

cient evidence that these reasons are “pretextual” — not

necessarily in the sense that they were false, but that “they were

not {[defendants’] only reasons and that age made a difference.”

Hagelthorn, supra, 710 F.2d at 82. First, I note that there is no

evidence that the hearing examiner was motivated even in part

by Owens’ age in finding against her or in recommending her

termination, or that Housing Authority superiors were so

motivated in accepting his conclusions. All the evidence she has

adduced concerns Lefkowitz and Arakel. Thus, to prove that

age was a determination factor in her discharge, Owens will

have to establish at trial that the charges that led to her ter-

mination would not have been brought but for her age. Her

theory appears to be that her supervisors created their poor rela-

tionships, concocted all or some of the charges, and/or sought

her discharge instead of granting her initial requests for transfer,

because of her age.

Although there is much evidence in the record that Owens

was treated unfairly, there is little that this treatment was

motivated by age. There is no evidence that younger employees

were more readily granted transfers — only evidence that despite

her requests she was, for some time, denied transfer. There is

no evidence that younger employees, as a group, were treated

better than older employees.

~ The only evidence she offers, other than her replacement by

a younger person, that her treatment was motivated in part by

age was Lefkowitz’ reported comment in February 1983 that

her “problems” “had to do with my age and entering menopause.”

Owens Aff. para. 6. In my view, however, this is sufficient

evidence of discriminatory intent to entitle Owens to a trial.

A-32

True, this comment was only a small part of the course of harass-

ment Owens alleges. But it is direct evidence of Lefkowitz’ state

of mind, which cannot be characterized as merely “colorable”

or “not significantly probative.” Anderson v. Liberty Lobby, Inc.,

106 S. Ct. 2505, 2511 (1986). See Meiri, supra, 759 F.2d at 998

(“summary judgment is ordinarily inappropriate where an in-

dividual’s intent and state of mind are implicated”). Compare

ibid. (affirming grant of summary judgment for defendant

where plaintiff adduced no non-conclusory evidence of pretext,

noting: “The summary judgment rule would be rendered sterile

.. . if the mere incantation of intent or state of mind would

operate as a talisman to defeat an otherwise valid motion.”).

Accordingly, I hold that defendant has failed to show the

absence of a genuine issue of fact for trial on the age discrimina-

tion issue.

II. Res Judicata

Defendants contend that plaintiff's causes of action are barred

by the doctrine of res judicata, or claim preclusion. Specifically,

they assert she should have raised them in her Article 78

proceeding.

The claim preclusion doctrine will bar Title VII suits in

federal court where a litigant has had a “full and fair oppor-

tunity” to litigate the discrimination clairn in state court. Kremer

v. Chemical Construction Co., 456 U.S. 461, 480 (1982); 28 U.S.C.

@ 1738. An unreviewed state administrative determination,

however, has no preclusive effect in Title VII suits in federal

court even if it would preclude litigation in the courts of the

forum state. University of Tennessee v. Elliott, 106 S. Ct. 3220,

3225 (1986). Under the analysis used in Kremer and Elliott, no

reason appears to treat ADEA cases differently. The question,

then, is whether Owens had a full and fair opportunity to litigate

her discrimination claims in state court.

Owens’ Article 78 challenge to her dismissai was statutorily

limited to these questions: whether the determination was made

A-33

in violation of lawful procedure, was arbitrary and capricious

or an abuse of discretion, or was not supported by substantial

evidence. N.Y. Civ. Prac. L. & R. @ 7803(3), (4). n4 In New

York judicial review of state administrative proceedings is con-

fined to the grounds relied upon by the agency. Trump-Equitable

Fifth Avenue Co. v. Gliedman, 57 N.Y.2d 588, 593, 457 N.Y.S.2d

466, 468, 443 N.E.2d 940 (1982). Thus, Owens could not raise

in the Appellate Division a claim not ruled upon by the ad-

ministrative hearing judge and the Housing Authority.

n4 Section 7803 provides in full:

The only questions that may be raised in a proceeding under

this article are:

1. whether the body or officer failed to perform e duty en-

joined upon it by law; or

2. whether the body or officer proceeded, is proceeding or

is about to procced without or in excess of jurisdiction; or

3. whether a determination was made in violation of lawful

procedure, was affected by an error of law or was arbitrary and

capricious or an abuse of discretion, including abuse of discre-

tion as to the measure or mode of penalty or discipline imposed;

or

4. whether a determination made as a result of a hearing held,

and at which evidence was taken, pursuant to direction by law

is, on the entire record, supported by substantial evidence.

Defendants contend that Owens did raise her discrimination

claims in the administrative hearing and that the administrative

trial officer rejected them, at least implicitly. The trial officer’s

memorandum does not bear out this contention. The charges

against Owens included allegations that she accused her super-

visors of prejudice, perhaps in harsh terms; the references in the

trial officer’s memorandum to Owens’ accusations or prejudice

are to these allegations. There is no indication that Owens

A-34

litigated her discrimination claims at the administrative hear-

ing or that the trial officer thought they were before him. Since

the trial officer did not rule upon Owens’ discrimination claims,

Owens could not have raised them in the state court and she

is not precluded from advancing them here. See Bottini v. Sadore

Management Corp., 764 F.2d 116, 121 (2d Cir. 1985) (where Title

VII claim was outside scope of arbitration proceeding, state

judicial review of arbitration proceeding did not bar subsequent

Title VII action in federal court).

Defendants argue that even if Owens did not raise her

discrimination claims at the administrative hearings, she should

have. But she was not obliged, on pain of future preclusion, to

raise her claims in the state administrative forum. Elliott, supra,

106 S. Ct. at 3225. She was entitled “to pursue independently

[her] rights under both Title VII [and the ADEA] and other

applicable state and federal statutes.” Alexander v. Gardner-

Denver Co., 415 U.S. 36, 48 (1974) (quoted in id. at 3225 n.5).

If, as Elliott holds, a plaintiff may advance a Title VII claim

in federal court even after intentionally invoking a state’s ad-

ministrative anti-discrimination apparatus, surely a plaintiff may

do so after being hailed before a state administrative tribunal

convened not to investigate the plaintiffs discrimination charges

but to resolve disciplinary charges against the employee.

Furthermore, even if Owens had tried to raise the claims

presented here it is not clear the presiding officer would have

been authorized to resolve them. The purpose of the tribunal

was to try the disciplinary charges. Surely the trial officer would

save considered a defense that prejudice caused Owens’ super-

vrs to make up the disciplinary charges out of whole cloth.

But that it not the only issue here. In this lawsuit Owens may

succeed even if some or all of the charges are true, if her age

or her protected “opposition” or “participation” were also “but

for” causes of the charges being brought or a lesser sanction

sought.

Defendants offer no authority for the proposition the trial

officer could have considered such a claim, and the statute

A-35

suggests he could not. The statute provides only one analogous

defense: a hearing officer must dismiss disciplinary charges if

they “would not have been brought but for” the employee's

disclosure of improper governmental actions to a governmen-

tal body. N.Y. Civ. Serv. Law @ 75-b(2)(a), (3)(a). There is no

parallel provision for charges brought because of animus based

on race, sex, religion or age.

Finally, the most closely apposite New York authority cited

by the parties, or that I have found, suggests that New York

courts would not give preclusive effect to the Article 78 pro-

ceeding. See State Division of Human Rights v. City of Syracuse,

57 A.D.2d 452, 394 N.Y.S.2d 948 (4th Dep’t 1977), affd mem.

43 N.Y.2d 958, 404 N.Y.S.2d 343, 375 N.E.2d 409 (1978) (enter-

taining appeal from determination of state human rights ap-

peal board even though complainant had lost previous Article

78 challenge to results of related administrative disciplinary hear-

ing; no claim preclusion argument raised). If New York courts

would not give preclusive effect to the Article 78 proceeding,

it has no such effect here. 28 U.S.C. @ 1738.

For all these reasons, I reject defendants’ argument that this

lawsuit is barred by the doctrine of res judicata.

Conclusion

Defendants’ motion for summary judgment is denied in its

entirety.

It appears from the Court file that discovery should be com-

plete. Accordingly, the parties are directed to appear to a final

pre-trial conference September 18, 1987 at 3:00 p.m. in Room

307 of this Courthouse.

It is SO ORDERED.

A-36

MILDRED DANIELSON, Plaintiff-Appellant, v. CITY OF

LORAIN, Defendant-Appellee

No. 90-3666

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

May 9, 1991, Argued

July 16, 1991, Decided

July 16, 1991, Filed

PRIOR HISTORY:

On Appeal from the United States District Court for the

Northern District of Ohio; No. 88-04399; Alice M. Batchelder,

District Judge.

COUNSEL: For Plaintiff - Appellant, Robert A. Dixon,

ARGUED, Mase, Mergenthaler & Slominski, Cleveland, Ohio.

For Defendant - Appellee, Mark J. Mihok, ARGUED, Lorain,

Ohio.

JUDGES: Keith and Boggs, Circuit Judges; and William O.

Bertelsman, District Judge. *

* The Honorable William O. Bertelsman, United States

District Judge for the Eastern District of Kentucky, sitting by

designation.

OPINION BY: KEITH

OPINION: Plaintiff Mildred Danielson (“Danielson”) appeals

from the June 20, 1990, order entering a directed verdict for

defendant City of Lorain (the “City”) in this suit alleging age

discrimination. For the following reasons, we AFFIRM.

A-37

i,

Danielson was first employed by the City on September 20,

1976, at the age of fifty-seven. She was initially hired as a clerk-

typist and on August 13, 1979, she was appointed to the posi-

tion of secretary in the Fire Department. She held this position

until May 25, 1984, when she was laid off as part of a city-wide

reduction in work force. Approximately eight r.onths later, she

requested assignment to a vacant position in the Utilities

Department.

Danielson was interviewed by the service director, Richard

Koba (“Koba”), and in January 1985 was recalled from layoff

to fill the position of clerk-cashier in the Utilities Department.

She was sixty-five years of age when she was recalled to this posi-

tion. Shortly after she started the job, she was told by her Depart-

ment Manager, Arthur DeAngelis (“DeAngelis”), that she “would

never make it” on the job. Transcript at 18 (Testimony of

Danielson).

In November 1985, after returning from sick leave, Danielson

was Called into the office of the utility director, John Rybarc-

zyk (“Rybarczyk”). The only other person at the meeting was

DeAngelis. Danielson alleges that at this meeting Rybarczyk told

her that, because of her age, she should consider retirement.

He pointed out to her that there were things that he could not

do anymore because of his age, giving painting his house as an

example. Danielson alleges that DeAngelis was in agreement

with Rybarcezyk’s comments. Id. at 21-22. She made notations

of these comments on the back of a paycheck stub after the

meeting. Id. at 29; Joint Appendix at 18. Rybarczyk denied

Danielson’s accusation at trial, stating, “To my knowledge, sir,

there was nothing said about age at any meeting.” Transcript

at 312 (Testimony of Rybarczyk).

In July 1986, Danielson was given a two-week disciplinary

suspension after one verbal and two written reprimands for

alleged poor work performance. Id. at 19-20; Joint Appendix

at 31-32. The verbal reprimand was on September 6, 1985, and

ee

A-38

the first written reprimand was on October 4, 1985. These

reprimands were, therefore, before the November 1985 meeting

at which the alleged discriminatory statement was made. The

second written reprimand was dated April 4, 1986. Joint Ap-

pendix at 28-30.

On November 25, 1986, Danielson was terminated by the City.

The decision was made by Koba based upon the information

and recommendation provided by Rybarczyk, which included

reports from DeAngelis and Alery Turcus (“Turcus”), Danielson’s

immediate supervisor, as well as testimony of employees at her

discharge hearing. Transcript at 105-06, 116-17 (Testimony of

Koba). Turcus had written numerous memoranda to DeAngelis

concerning Danielson’s poor work quality. Joint Appendix at

20-21, 33-37, 40, 42, 45-46. Danielson testified that she could

not conclude that age was a factor in Turcus’ treatment of her.

Transcript at 40-41] (Testimony of Danielson). All levels of super-

visory personnel complained of her inability to grasp job re-

quirements despite training and counselling. Joint Appendix at

19-50. DeAngelis received written complaints from other office

personnel. Id. at 241-47 (Testimony of DeAngelis). She had been

reprimanded previously and then suspended.

On November 30, 1988, Danielson filed this suit alleging that

she was terminated on the basis of her age, in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ § 621-634. On June 18, 1990, a jury trial was commenced. The

City stipulated that Danielson was replaced by a younger per-

son outside of the protected age group. The district court reserved

ruling on defendant's Motion for Directed Verdict presented at

the close of Danielson’s case. On June 20, 1990, after the close

of the City’s case, the district court granted the motion in favor

of the City. Danielson filed a timely notice of appeal on July

19, 1990.

A-39

II.

A.

Our standard of review of motions for directed verdict is iden-

tical to the standard used by the district court. King v. Love,

766 F.2d 962, 969 (6th Cir.), cert. denied, 474 U.S. 971 (1985).

We must view the evidence in a light most favorable to the non-

moving party and give that party the benefit of all reasonable

inferences. Kitchen v. Chippewa Valley Schools, 825 F.2d 1004,

1015 (6th Cir. 1987). The motion should be granted if there are

“no controverted issues of fact upon which reasonable [people]

could differ.” Id.

We have held that we generally apply to ADEA age

discrimination cases the same analysis applied to discrimina-

tion cases under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, according to McDonnel Douglas Corp. v. Green,

411 U.S. 792 (1973). Chappell v. GTE Prods. Corp., 803 F.2d

261, 265 (6th Cir. 1986). Under this analysis, plaintiff must first

establish a prima facie case. The prima facie case creates a

presumption of discrimination, which requires the defendant

to articulate a legitimate, nondiscriminatory reasons for the

dismissal. It is then the plaintiffs burden to establish that

discrimination was a determinative factor in the dismissal. Id.

at 265. In an ADEA sui. a prima facie case is established if

the plaintiff shows that he or she is a member of the protected

age group, that the plaintiff was discharged, that the plaintiff

was qualified for that position (or that he or she was doing the

job well enough to meet the employer’s legitimate expectations),

and that the plaintiff was replaced by a younger person. Id. at

265-66. The district court accepted arguendo that Danielson

had made out a prima facie case. Transcript at 325.

B.

The district court found, and we also conclude, that the City

articulated a legitimate, nondiscriminatory reason for dismissing

her — poor work performance. Once the City articulated

A-40

a 8legitimate nondiscriminatory reason, the burden shifted back

to Danielson to prove by a preponderance of the evidence that

the reason articulated was a pretext for intentional age

discrimination. See Chappell, 803 F.2d at 265.

Danielson argues that the evidence of the City’s articulated

reason of poor work quality was attacked sufficiently so that

a reasonable finder of fact could have rejected it and found in

her favor. To support her claim, Danielson testified that Rybarc-

zyk suggested she retire because of her age. Danielson also sought

to establish doubt over whether all of the mistakes attributed

to her poor work performance were the result of her work and

not the mistakes of others. Danielson argues that a reasonable

fact finder could have determined that Rybarcezyk decided that

Danielson, because of her age, should retire and that when she

refused, with age as a determinative factor, he began creating

a paper trail to establish inadequate work to achiev2 his desired

result. Appellant’s Brief at 110-11.

If the scenario Danielson proffers accurately described the

events leading to Danielson’s dismissal, she would be entitled

to judgment no matter how inadequate her work performance

was. See Neufeld v. Searle Laboratories, 884 F.2d 335, 339 (8th

Cir. 1989). The ADEA establishes that age may not be a deter-

minative factor in a dismissal of a member of the protected age

group no matter how poorly a worker performed. However, if

a plaintiff is not able to establish that she performed the job

at a level which met the employer’s legitimate expectations or

that the accusation of poor work was only a pretext, the claim

for discrimination cannot be successful. Id.; Chappell, 803 F.2d

at 266! Workers who poorly perform their jobs will not be in-

sulated from dismissal simply because they are members of the

protected age group.

' As the Eighth Circuit noted in Neufeld, “In this context, the requirement

that a discriminatory-discharge plaintiff show that he [or she] met his

employer's legitimate expectations simply announces the plaintiff's burden of

proving that he [or she} would have been retained in the absence of unlawful

bias.” Neufeld, 884 F.2d at 339 (citations omitted).

A-41

C.

We find that a reasonable fact finder could not determine,

based on the factual record established in this case, that poor

work performance was merely a pretext for a dismissal that was

based on Danielson’s age. Speaking of the numerous errors at-

tributed to Danielson in contemporaneous memoranda, the

district court stated, “There is no evidence whatever that those

mistakes are someone else’s mistakes, or that there was any error

made by the employees and supervisors who reported those

mistakes.” Transcript at 326. Our review of the record confirms

this conclusion. Danielson admitted making mistakes, but

claimed that she made no more than other employees. Id. at

61. Several other employees reported that Danielson made

numerous errors. Danielson did not show that the mistakes at-

tributed to her were made by others. She only showed that the

procedures used in Danielson’s office were such that it was possi-

ble, but not likely, that the errors were created by someone else.

She completely failed to meet her burden of proof in showing,

by a preponderance of the evidence, that her poor work perfor-

mance was merely a pretextual reason for her dismissal.

There is strong evidence that Danielson’s work was indeed

substandard. An early performance review for the period ending

June 30, 1985, and completed in October 1985 described

Danielson as satisfactory in most areas, but needing improve-

ment in seven of twenty areas, including accuracy in work. Joint

Appendix at 14. That review was completed more than a month

before the meeting in which Rybarczyk allegedly made an age-

based comment and which allegedly precipitated the plan to

establish a pretextual paper record. Subsequent evaluations

described her work as below satisfactory in virtually all areas.

Id. at 15-16.

There is no evidence that Koba, who dismissed Danielson,

harbored any age-based animus. Danielson was fired by the same

person, Koba, who hired her at the age of sixty-five, only two

years before her dismissal at age sixty-seven. It is true Koba

dismissed her based on the recommendation and file prepared

A-42

by Rybarczyk, but the file included letters of complaint by

other supervisors about whom Danielson testified she had no

evidence they treated her differently because of her age. She

merely surmised that since she felt she did not make many

mistakes, age discrimination could be the only reason supervisors

complained. Transcript at 63-64 (Testimony of Danielson).

We assume for the purpose of this appeal that the fact finder

would credit Danielson’s allegation that Rybarczyk said he

thought she should consider retiring because of her age. Even

though such a statement is strong evidence of an illegitimate

motive, the record clearly establishes a poor working record that

began before the alleged statement and which was documented

by several complaining supervisors. The recommendation by

Rybarczyk came a year after the alleged discriminatory remark

and at least a year and a half after poor work was aileged.

Months after the statement, she had been given a disciplinary

suspension following a hearing. Danielson never alleged age

discrimination in that hearing, despite the alleged comment and

her alleged contemporaneous recording of that comment. We

conclude that a reasonable fact finder could not find that all

of Danielson’s supervisors created a false paper trail for the pur-

pose of dismissftig her because of her age and waited a year

before presenting the fabricated record to Koba, recommending

dismissal. We, therefore, conclude that Danielson failed to

establish that a reasonable fact finder could have found that

poor work performance was merely a pretextual reason for her

dismissal and that age was a determinative factor.

III.

For the foregoing reasons, we AFFIRM the June 20, 1990,

order of the Honorable Alice M. Batchelder, United States

District Judge for the Northern District of Ohio.

A-43

MARIO MLINARIC, Plaintiff-Appellant, v. PARKER

HANNIFIN CORPORATION, Defendant-Appellee

No. 87-3112

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC

SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN

A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT.

IF CITED, ACOPY MUST BE SERVED ON OTHER PARTIES

AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS REPRODUCED.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Disposition Reported at 853 F.2d 927)

August 5, 1988, Filed

PRIOR HISTORY:

On Appeal from the United States District Court for the Nor-

thern District of Ohio, C-84-405

OPINION BY: WOODS

OPINION: Before: KEITH and NORRIS, Circuit Judges; and

WOODS, District Judge. *

* The Honorable George E. Woods, United States District

Judge for the Eastern District of Michigan, sitting by de-

signation.

Opinion for the Court filed by District Judge Woods:

Plaintiff-appellant Mario Mlinaric appeals the orders of the

District Court (1) bifurcating plaintiff's age and national origin

discrimination claims; (2) dismissing plaintiff's retaliation claims;

A-44

(3) directing a verdict in favor of defendant-appellee Parker Han-

nifin Corporation on plaintiff's age discrimination claim; and

(4) granting judgment in favor of defendant on plaintiff's

national origin discrimination claim. We affirm each order of

the District Court.

Plaintiff was born in Italy in 1936, at a time in which Italy

occupied a present-day Yugoslavian area known as Croatia. He

moved to Rome at the age of seven, remaining there unti! he

immigrated to this country in 1956.

Several months after his arrival, plaintiff settled in Cleveland

and began working for Z & W Corporation. Defendant acquired

Z & W Corporation in the 1960's. Piaintiff thereafter advanced

in skill and wage rates. By 1974, plaintiff attained a Machine

Builder‘and Repair A position, one of the top paid positions for

hourly workers. Plaintiff continued to work at the Eastlake, Ohio

plant until November of 1981, when defendant began to phase

out the plant. As a result of the phase-out, defendant transferred

plaintiff and many other Eastlake employees to its plant in

Wickliffe, Ohic

The transfer of the Wickliffe employees to the Eastlake plant

took place in accordance with a collective bargaining agreement

(CBA) between defendant and plaintiffs union. Under Article

VII of the CBA, plaintiff and other transferred employees could

use their superior seniority to “bump” less senior employees “pro-

vided they had the skill and ability to perform the work

involved.”

Defendant’s Wickliffe management held several meetings with

hourly employees and the union in an effort to facilitate the

transfer of Eastlake employees into Wickliffe and to improve

the morale of affected Wickliffe employees. By January of 1982,

approximately 230 personnel moves had occurred. To minimize

the changes, defendant and the union agreed to interpret the

“skill and ability to perform” bumping prerequisite as requir-

ing a bumping employee to have the ability to “walk up and

do” the desired job. Plaintiff testified and introduced other

A-45

evidence that the “skill and ability” standard was the sole re-

quirement for bumping; the majority of evidence indicated,

however, that defendant and the union applied the “walk up

and do” standard. For example, a former union representative

admitted that the union filed a grievance on behalf of an

employee to force the defendant to adhere to the “walk up and

do” standard.

Prior to transferring, plaintiff and other Eastlake employees

were informed as to possible positions into which they could

bump. Plaintiffs seniority and job experience enabled him to

bump into almost any job in the Wickliffe plant. Defendant ad-

vised all employees to consider bumping into lesser job classifica-

tions if they were tfnsure of their ability to “walk up and do”

a particular job. Aff emfiloyee unable to do a particular job

would be “disqualified.” Disqualification meant demotion to the

least senior available job in the plant. Plaintiff elected to bump

into the Machine Builder and Repairman (All Around) job, a

position with a job description identical to the Machine Builder

and Repair “A” position plaintiff held at the Eastlake plant. The

Eastlake plant, however, did not contain the automatic equip-

ment present in the Wickliffe plant. Automatic equipment con-

stituted the overwhelming majority of the primary production

and repair work at Wickliffe. Plaintiff nevertheless assured John

Minarich, the Wickliffe plant manager, that plaintiff could per-

form the job.

Soon after plaintiff's transfer, Minarich and John Dorsey,

plaintiff's immediate supervisor, found that plaintiff was not

satisfactorily performing his job. Although plaintiff experienced

difficulty making some of the repairs, his main difficulty was

that he was too slow in repairing the machines. Minarich ad-

vised Dorsey to keep notes documenting plaintiff's performance.

Several of defendant’s managers, from approximately December

of 198] to January of 1982, warned plaintiff that he was in

danger of being disqualified. Defendant’s managers provided

plaintiff with parts books and manuals, while continuing to

monitor plaintiff's performance.

A-46

A factor that could have affected plaintiffs ability to effi-

ciently perform repairs was plaintiff's excessive use of valium.

On cross-examination, plaintiff admitted that he needed valium

to help control his hypertension, but took more valium than his

three times a day prescription. Plaintiff stated that he took ad-

ditional valium because of his asthma condition and his difficulty

sleeping at night. He also admitted to taking the medication

while at work.

In February of 1982, after plaintiff had worked or 9

machine builder-repairer job for ten weeks, defendant

qualified plaintiff. Plaintiff filed a grievance to overturn the dis

qualification During the grievance procedure, the union cor

tended that plaintiff was discriminated against and harassed

as shown by the scrutiny of plaintiff by his foreman and the lack

of assistance he received from his foreman and fellow workers

Defendant, on the other hand, contended that plaintiff was

given a fair sampling of repair work, but failed to perform in

a “workmanlike” manner. Defendant and the union subsequently

agreed that plaintiff would be reinstated and given a second

chance to perform the job.

Once again, notes were kept of plaintiff's performance. After

three weeks on the job, plaintiffs performance remained

substandard, in defendant’s view, resulting in a second dis-

qualification. The union again grieved plaintiff's disqualifica-

tion, raising the same arguments as before. Defendant contended

that plaintiff's performance remained substandard despite the

instruction he was given on machine assemblies and the help

he received from co-workers. This time, however, the grievance

was not resolved. The union had the option of taking plaintiff's

unresolved grievance to a strike vote, but declined to do so. As

a result, plaintiff was disqualified and placed in his present

hourly position at defendant’s Wickliffe plant.

Plaintiff filed suit in February of 1984. Prior to trial, defen-

dant moved to bifurcate issues of liability from damages, as well

as the non-jury claim (Title VII claim based on national origin)

from the jury claims (age discrimination and pendent state

A-47

claims). The district court denied bifurcation of damages and

liability, but granted bifurcation of the jury and non-jury claims.

The court also declined to exercise pendent jurisdiction over the

state law claims. Thus, at the time of trial, the age discrimina-

tion claim remained to be tried to a jury, and the national origin

discrimination claim remained to be tried before the court.

After five days of trial before the jury on plaintiffs age

discrimination claim, the district court granted a directed ver-

dict in favor of defendant at the close of plaintiff's case. Trial

before the court immediately commenced and continued for five

additional days on the national origin discrimination claim. The

district court thereafter issued a written decision in favor of

defendant on the national origin claim.

1. BIFURCATION

Plaintiff contends that the district court erred in bifurcating

his age and national origin discrimination claims. Plaintiff asserts

that bifurcation was inappropriate due to the overlap of facts

and issues in the two claims. He also believes that bifurcation

hindered the ability of his witnesses in the national origin claim

to respond to defendant’s questions on cross-examination. We

disagree.

(b) Separate Trials. The court, in furtherance of convenience

or to avoid prejudice, or when separate trials will be conducive

to expedition and economy, may order separate trial of any

claim, cross-claim, counterclaim, or third-party claim, or of any

separate issue or of any number of claims, cross-claims,

counterclaims, third-party claims, or issues, always preserving

inviolate the right of trial by jury as declared by the Seventh

Amendment to the Constitution or as given by a statute of the

United States.

Plaintiff was not entitled to receive, and made no request for,

a jury trial on his national origin discrimination claim, which

he brought under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. Harris v. Richards Manufacturing Co.,

A-48

675 F.2d 811 (6th Cir. 1982). Plaintiff timely demanded a jury

trial on his age discrimination claim.

The Federal Rules of Civil Procedure clearly contemplate

separate trials of jury and non-jury issues. The Notes of the Ad-

visory Committee to Rule 39 state that “[w]hen certain of the

issues are to be tried by jury and others by the court, the court

may determine the sequence in which such issues shall be tried.

See Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S.

Ct. 118, 67 L.Ed. 232 (1922).” This language at one time was

contained in a draft of the rules, but was removed since “the

power is adequately given to Rule 42(b).” Beacon Theatres, Inc.

v. Westover, 359 U.S. 500, 513 n.3 (1959) (Stewart, J., dissenting).

The decision of whether to try issues separately rests within

a trial court’s sc.und discretion. An abuse of discretion will be

found only where a reviewing court is left with a “definite and

firm conviction that the court below committed a clear error

of judgment in the conclusion it reached upon a weighing of

the relevant factors.” Yung v. Raymark Indus., Inc., 789 F.2d

397, 400 (6th Cir. 1986). As Rule 42(b) indicates, relevant fac-

tors include the potential prejudice to the parties, potential con-

fusion to the jury, and the relative convenience and economy

that would result from separate trials. In re Beverly Hills Fire

Litigation, 695 F.2d 207, 216 (6th Cir. 1982), cert. denied sub

nom. Bryant Electric Co. v. Kiser, 461 U.S. 929 (1983).

Contrary to plaintiff's assertions, we see little overlap of facts

that would justify presenting evidence applicable to a (non-jury)

national origin discrimination claim to a jury charged with con-

sidering an age discrimination claim. We do not believe that

the shifting burden of proof requirement, see Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248 (1981), applicable

to both claims, cf. Kitchen v. Chippewa Valley Schools, 825 F.2d

1004, 1010-12 (6th Cir. 1987), required a joint trial of both claims.

Nor do we find that plaintiff was prejudiced by the separate

trials. Plaintiff asserts that defense counsel, during the age

discrimination claim, was unfairly able to cross-examine plaintiff

A-49

and one of plaintiff's witnesses regarding an Equal Employment

Opportunity Commission (EEOC) proceeding. Plaintiff con-

tends that he and his witness could not fully answer because

a complete answer to defense counsel’s questions would have

required an explanation of the EEOC’s investigation of his na-

tional origin discrimination claim. Nevertheless, the prejudice

to plaintiff, even if it occurred, was far outweighed by the like-

ly prejudice to defendant in jointly trying the two claims. The

national origin claim under Title VII was a much stronger claim

than the age discrimination claim and the district court did not

abuse its discretion in concluding that the jury would confuse

the evidence offered on each claim. Moreover, all of the alleged

incidents of name calling, burning, harassment, etc., were of-

fered to support the national origin claim. Hearing such evidence

could have prejudiced the jury’s consideration of the age

discrimination claim. The district court, in our view, adopted

the least prejudicial approach in trying the two claims separately.

2. RETALIATION CLAIM

On March 26, 1982, plaintiff filed a charge with the EEOC,

alleging that he had been laid off on February 2, 1982 because

of his national origin, Croatian, and age, forty-six. On December

29, 1983, the EEOC issued plaintiff a Notice of Right to Sue

on both claims. Plaintiffs EEOC charge and the EEOC’s subse-

quent investigation made no mention of defendant’s alleged

retaliation.

On May 17, 1984, plaintiff filed a complaint with the Ohio

Civil Rights Commission, again raising claims of national origin

and age discrimination arising from the February 2, 1982 layoff.

This complaint, which did not mention retaliation, was

dismissed as untimely.

Plaintiff first referred to retaliation in his complaint and sup-

plemental complaint filed with the district court. The district

court permitted plaintiff to introduce evidence concerning

retaliation which allegedly occurred in 1984 and 1986, after

plaintiff had returned to work in July of 1984 followiug a

A-50

two-year injury layoff. Plaintiff testified that defendant failed

to accommodate his work limitations caused by his knee and

back injuries. At the close of the jury trial, the district court

dismissed plaintiffs retaliation claim, concluding that plaintiff

should have presented the claim to the EEOC. Plaintiff argues

that the retaliation claim did not have to be raised in the EEOC

proceeding since the claim was reasonably expected to grow from

the EEOC charge.

In Tipler v. E.]. duPont de Nemours & Co., 443 F.2d 125, 131

(6th Cir. 1971), this Court held that a party’s complaint in a

judicial proceeding is limited only “to the scope of the EEOC

investigation. reasonably expected to grow out of the charge of

discrimination.” The scope of the investigation is broadly con-

strued because discrimination charges filed with the EEOC often

are brought by lay persons “unfamiliar with the niceties of

pleading and are acting without the assistance of counsel.” Id.

Courts generally find that ciaims of retaliation reasonably can

be expected to grow out of a discrimination charge and permit

such claims to be brought by an individual without prior resort

to the EEOC. E.g., Gupta v. East Texas State Univ., 654 F.2d

4H (5th Cir. Unit A 1981).

The difficulty with applying the above standards to the instant

case is that plaintiffs retaliation claims arise from events

completely unrelated to his earlier EEOC claims. The EEOC

charge and Ohio Civil Rights complaint concern alleged national

origin and age discrimination claims arising from plaintiff's

February 2, 1982 layoff. The retaliation claim, on the other

hand, concerns events occurring in 1984 and 1986 after plaintiff

returned to work from a two-year layoff. Plaintiffs retaliation

claim arose well after the termination of the EEOC investiga-

tion and the issuance of the right to sue notice and could not

be “reasonably expected to grow out of” the discrimination

charges. Under these circumstances, the district court did not

err in concluding that it lacked subject matter jurisdiction over

plaintiffs retaliation claim because plaintiff failed to file that

charge with the EEOC.

—

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3. AGE DISCRIMINATION

Plaintiff next claims that the district court erred in directing

a verdict in favor of defendant on his claim under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621

et seq. A directed verdict is appropriate when the evidence is

such that reasonable minds could reach but one conclusion as

to the proper verdict. Gomez v. Great Lakes Steel Division, Na-

tional Steel Corp., 803 F.2d 250, 254 (6th Cir. 1986). In mak-

ing that determination, a court may not pass on the credibility

of witnesses, but must view all evidence in the light most

favorable to the unmoving party, drawing all reasonable in-

ferences in that party’s favor. Id. |

Applying literally the four criteria of McDonnell Douglas v.

Green, 41i U.S. 792 (1973), to the ADEA claim requires plain-

tiff to show that he was

(1) a member of a protected class (age 40 to 70);

(2) subjected to adverse employment action;

(3) qualified for the position; and

(4) replaced by a younger person.

Simpson v. Midland-Ross Corp., 823 F.2d 937, 940 (6th Cir.

1987). Once plaintiff establishes a prima facie case of age

discrimination, the burden of production shifts to the defen-

dant employer to provide a legitimate nondiscriminatory reason

for the adverse employment action. Id. (citing Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Should

the employer articulate a legitimate reason for its employment

action, the plaintiff has the burden of showing that the stated

reason is merely pretextual or a cover-up for what in truth was

a discriminatory purpose. Ridenour v. Lawson Co., 791 F.2d 52,

56 (6th Cir. 1986); Wilkins v. Eaton Corp., 790 F.2d 515, 521

(6th Cir. 1986). In evaluating such claims, this court consistently

has eschewed a blind, mechanistic application of the McDonnell

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Douglas criteria, see Simpson, 823 F.2d at 940-41 (citing cases),

preferring instead a case-by-case approach that recognizes the

realities of the business world. Laugesen v. Anaconda Co., 510

F.2d 307, 312 (6th Cir. 1975).

It is clear that plaintiff (1) was 46 years of age and within

the class of persons protected under the ADEA; (2) held a

machine builder-repairer position for several years prior to his

transfer and had performed well; (3) was disqualified from a

job; and (4) was replaced by a 29 year-old man with lesser

seniority and experience. Althougn that would appear to

establish a prima facie case, two additional facts must be noted.

First, plaintiff was replaced by a 29 year-old employee, not by

defendant’s choosing, but by operation of the CBA. Second,

plaintiff made little showing that he was qualified for the

Wickliffe position. As noted above, plaintiff's experiences at

Eastlake did not involve automatic machines and did not equip

him to “walk up and do” the repairs needed at Wickliffe.

As an alternative to the McDonnell Douglas criteria, a plain-

tiff can prove discrimination through statistical or other direct

evidence. Simpson, 823 F.2d at 940. Plaintiff claims that

“statistically” the maintenance department was aging and that

defendant’s managers, during contract negotiations with the

union, expressed concerns regarding the high cost of employee

benefits for the older workers. The difficulty with accepting

plaintiffs statistical showing, however, is that seven of the twelve

employees in the maintenance department were older than

plaintiff. None of the older employees reported discrimination.

Moreover, plaintiff was approximately five years younger than

the average age in the department. Defendant would have laid

off or fired one or more of its older employees had it truly wished

to lower costs. Finally, defendant did not significantly lower its

costs since plaintiff was disqualified, not discharged. Plaintiff's

salary was reduced a mere thirty-two cents an hour.

The only direct evidence of alleged age discrimination offered

by plaintiff is the showing that several of defendant’s managers

formed friendships with some of the younger employees. The

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evidence of friendships with the younger employees, however,

fell far short of supporting an inference that age entered into

the defendant’s decision to disqualify plaintiff. We hold,

therefore, that the district court did not err in granting a directed

verdict in favor of defendant on plaintiff's age discrimination

claim.

4. NATIONAL ORIGIN

Plaintiff finally argues that the district court erred in enter-

ing judgment for defendant on the national origin discrimina-

tion claim. Plaintiff disagrees with the district court’s findings

of fact, believing that he proved by a preponderance of the

evidence that he was subjected to a hostile working environ-

ment due to his national origin.

A district court’s factual findings cannot be set aside unless

they are found to be clearly erroneous. F.R.Civ.P. 52(a). Fac-

tual findings are clearly erroneous when, although they are sup-

ported by evidence, a reviewing court after review of all the

evidence “is left with the definite and firm conviction that a

mistake has been committed.” Rabidue v. Osceola Refining Co.,

805 F.2d 611, 616 (6th Cir. 1986) (citing Anderson v. Bessemer

City, 470 U.S. 564 (1985)), cert. denied, 107 S. Ct. 1983 (1987).

Moreover, under Rule 52 a reviewing court must give even

greater deference to a district court’s findings when they are

based on determinations of credibility. 805 F.2d at 616 (citing

Anderson, 470 U.S. at 575).

Title VII prohibits all forms of discrimination in employment

based on race, color, religion, sex, or national origin. 42 U.S.C.

§ 2000e-2(a). An employer violates Title VII when it creates

or tolerates a “hostile working environment” that is “so heavily

polluted with discrimination as to destroy completely the erno-

tional and psychological stability of minority group members.”

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250, 1254

(6th Cir. 1985) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th

Cir. 1971), cert. denied, 406 U.S. 957 (1972)), cert. denied, 475

U.S. 1015 (1986); Torres v. County of Oakland, 758 F.2d 147,

A-54

152 (6th Cir. 1985) (national origin discrimination claim

based on hostile working environment). To be actionable, the

incidents of national origin siurs must be more than occasional

or sporadic. Id. It must also be shown that the employer, through

its agents or supervisory personnel, knew or should have known

of the harassment and failed to take reasonable steps to remedy

the situation. Erebia, 772 F.2d at 1254; cf. Rabidue, 805 F.2d

at 621 (sex discrimination claim based on hostile working

environment).

The testimony of plaintiff and his witnesses differed sharply

from the testimony of defendant’s witnesses with respect to each

of the alleged incidents of national origin discrimination. Plain-

tiff testified that he was the victim of harassment and name call-

ing on an almost hourly basis by other maintenance department

employees. He stated that they referred to him as “DP Mario,”

nl and frequently scribbled that name on the door of his locker

and on the walls in the men’s lavatory. During lunch periods,

a couple of the maintenance department employees would often

iaugh at plaintiff and “spit right in front of him.” (R. 586) Plain-

tiff also mentioned one occasion in which his tools were scat-

tered on the floor of the maintenance department. Several of

the tools were never located and he believes they were stolen.

Plaintiff also mentioned the deliberate and malicious burning

of his workbench. Plaintiff further testified that he was not given

assistance by defendant’s maintenance department managers,

nor was he provided with manuals to enable him to complete

repairs. On several occasions when he successfully repaired a

machine, the machine would be sabotaged by other employees,

~ who would then falsely blame plaintiff for failing to make a

proper repair.

Defendant’s witnesses, in contrast, testified that the incidents

of name calling directed toward plaintiff were isolated incidents,

which consisted of mere locker-room conversation and

nl “DP” was an acronym for the term “displaced person,” an

apparent reference to an individual’s immigration into the

United States.

A-55

humor. They stated that plaintiff was nct subject to such abuse

on an hourly or even daily basis. To the extent such hostility

occurred, it resulted from the co-workers’ dislike of plaintiff,

their belief that plaintiff was unable to perform his job. and

their concern that plaintiff and other employees from Eastlake

would assume the jobs held by Wickliffe employees. Moreover,

the worker who scattered plaintiff's tools testified that he was

reprimanded for his actions and never again engaged in such

activity. Defendant’s managers also investigated the burning of

plaintiff's workbench. They discovered that the workbench ac-

cidentally burned when an employee on a later shift used the

bench for welding and inadvertently burned the cardboard top

of the bench.

Defendant’s witnesses also stated that the manuals plaintiff

requested were always available. They believed that the jobs on

which plaintiff requested assistance were one-man jobs.

Although defendant’s management could have given plaintiff

greater assistance in learning to repair automatic machines, the

management had to comply with the “walk up and do” require-

ment derived from the CBA. Defendant’s witnesses further

testified that plaintiffs disqualification on both occasions

resulted from his deficient and_untimely repairs.

In short, there is insufficient evidence that defendant’s

management tolerated or failed to correct a work situation that

was so heavily polluted with national origin discrimination so

as to affect plaintiffs emotional and psychological stability.

There was no evidence that defendant’s management ever

referred to plaintiff's national origin or used his national origin

as a reason for either disqualification. As a result, we find no

error in the district court’s factual findings and affirm the judg-

ment for defendant on the national origin discrimination claim.

For the foregoing reasons, the district court’s judgment is

hereby AFFIRMED.

KEITH, Circuit Judge, concurring in part and dissenting in

part.

A-56

DISSENT: KEITH, J., Concurring in Part and Dissenting in

Part: I concur with the portion of the majority opinion which

finds no merit in Mr. Mlinaric’s bifureation, age discrimination

or retaliation claims. However, I must dissent with respect to

the national origin claim. After review of the facts, I can come

to no other conclusion than that the district court was clearly

erroneous in determining that there was not sufficient evidence

to establish discrimination on the basis of national origin.

To say that the facts of this case are compelling is an

understatement. Mr. Mlinaric testified that he was constantly

harassed and threatened. He was persistently insulted with the

ethnic slur “DP,” initials which stand either for “displaced per-

son” or “dumb Polack.” “DP” was shouted at him and written

on his locker. During a union election, an employee passed out

hats that said “Don’t vote for DP Mario.” He was incessantly

called a “DP son-of-a-bitch”; coworkers said “DP Mario doesn’t

know anything,” and “if that DP comes back I’m quitting.”

Mlinaric was bombarded with comments such as, “they’re go-

ing to ship you back,” and “they’re going to put you back on

the first boat.” He was also repeatedly called a “fucking DP.”

Perhaps most indicative of the atmosphere of the plant was the

drawing in the men’s restroom of a stick figure with a wrench

and a noose around his neck: the words “Good-bye DP Mario”

were scrawled alongside. The plant manager testified that “Fuck

all DPs” was also written on a stall in the men’s room.

Mr. Mlinaric’s fellow employees spit at him. He testified that

they refused to assist him, refused to give him manuals so that

he could learn more about his machine, and refused to eat with

him. Graffiti was scrawled on his locker; it was broken into, and

items were stolen. His workbench was set afire and irreparably

scorched. He claims that his replacement workbench was covered

with garbage each morning. His tools were strewn around the

floor. Mr. Mlinaric reported the harassment to his superiors, who

did nothing.

I am unsure just how much more harassment, short of physical

brutality, that the district court would have required before it

A-57

was Satisfied that Mr. Mlinaric was discriminated against on

the basis of his national origin. To me, it is abundantly clear

that the pervasive atmosphere of endless, cruel harassment con-

taminated and blackened the workplace environment. I am left

only with the “definite and firm conviction that a mistake has

been committed” by the court below. Anderson v. Bessemer City,

470 U.S. 564 (1985).

The district court ruled that the employees’ hostility toward

Mr. Mlinaric was traceable not to national origin, but instead

to a general hostility and concern over their own jobs. While

this is an understandable fear, it should not translate into at-

tacks laced with slurs referring to national origin. I fail to under-

stand what the name-calling, the drawing of plaintiff with a

noose around his neck, the graffiti and persistent use of “DP”

were, if not attacks based upon national origin. In my opinion,

the plant’s management was under an obligation to aggressive-

ly intervene to stop this endless harassment of Mr. Mlinaric, and

to mute the hostile environment at the plant.

The district court dismissed the national origin claims because

the testimony was conflicting, stating that defendant’s witnesses,

while admitting to some level of harassment, adequately

explained the insults away as “mere shop talk,” and the graffiti

as “minimal.” Similarly, the majority appears to believe that the

incidents of name calling were “mere locker room conversation

and humor,” thereby suggesting that Mr. Mlinaric should “lighten

up” and learn how to take a joke. But, just as degrading

references to Jews, blacks or women negatively impact the

psychological health of those groups, ethnic “jokes” are similarly

debilitating to the peoples targeted by them. A work envircn-

ment that encourages and condones such treatment of diverse

peoples quashes productivity and potential, and fosters low self-

esteem Moreover, the continual use of ethnic slurs couched “in

fun” insidiously but effectively perpetuates the sorry and

ridiculous stereotype of Eastern Europeans as a slow and stupid

people. That some would want to build themselves up by

callously degrading others is not surprising. What is surprising,

however, is the majority’s implicit acceptance of the idea that

A-58

slurs against a class of people, if said as a “ioke,” sufficiently erases

the taint of discrimination.

I therefore conclude that evidence of the hostile environment

in which Mr. Mlinaric worked was sufficient to meet his Title

VII claim. For the above reasons, I respectfully dissent and would

reverse as to Mr. Mlinaric’s national origin claim.

A-59

Administrative Trial Officer's Report and Recommendation to

the Housing Authority Regarding Ms. Owens Disciplinary Trial

NEW YORK CITY HOUSING AUTHORITY

CONFIDENTIAL

To: Authority Members

From: Jonathan E. Raines, Trial Officer

Subject: Disciplinary Proceedings - Catherine Owens

Housing Assistant

The above named employee, Catherine Owens, a Housing

Assistant, was charged with incompetency and misconduct as

follows:

1. on or about July 21, 1981,

a) you directed abusive and insulting language toward your

supervisor; and

b) when directed by him to leave his office you refused, or

otherwise disobeyed.

2. On or about September 2, 1982 you disobeyed a direct order

by your supervisor to accompany a co-worker in the field and

were otherwise insubordinate.

3. On or about September 3, 1982 when the Assistant Manager

of the project attempted to counsel you, you directed foul and

abusive language at him, and were otherwise insubordinate.

4. On or about February 18, 1983,

a) in violation of the norms of office behavior you played

your personal radio at a high volume; and

A-60

b) when told to desist by the Housing Manager you directed

insulting and offensive language at him and were other-

wise insubordinate.

5. On or about March 2, 1983 in response to an inquiry from

the Assistant Manager concerning your work, you were loud and

abusive and directed foul language toward him and were other-

wise insubordinate.

6. On or about March 10, 1983 you were insubordinate and

disrespectful towards the Manager and Assistant Manager by

leaving a counselling session they were conducting with you,

without their permission and against their wishes.

7. On or about March 10, 1983 you physically menaced the

Housing Manager by shaking your finger in his face and strik-

ing him therewith and were otherwise insubordinate.

8. On or about March 22, 1983,

a) you were loud and abusive toward the Assistant Manager;

and

b) you falsely accused him of molesting you and were other-

wise insubordinate.

9. On or about March 23, 1983 you were loud and abusive

and directed foul language at the Assistant Manager and weve

otherwise insubordinate.

10. On or about March 28, 1983 you addressed the Assistant

Manager in a disrespectful and hostile manner and were other-

wise insubordinate.

ll. On or about March 29, 1983,

a) you refused a direct order from your supervisor to per-

form your regular assigned work duties;

A-61

b) you addressed him in a loud and hostile manner;

c) you physically assaulted him by shoving him with your

hand; and

d) you were otherwise insubordinate.

12. On or about the following dates you were absent from

your assigned area without permission or justification:

March 9, 10, 11, 14, I5, 16, 17, and 21, 1983

13. During the term of your employment and particularly

during the first quarter of 1983 you performed your assigned

work duties in an incompetent and unsatisfactory manner

despite warnings and counselling by your supervisors in that;

a) you failed to complete past due tenant income reviews

for 1982 and the first quarter of 1983 as instructed by

your superiors, causing unnecessary delays in tenant rent

adjustments; and

b) you made repeated errors in performing your tenant in-

come review procedures, causing unnecessary delays in

tenant rent adjustments.

A hearing of the charges was held on August 3, 1983, August

26, 1983, September 13, 1983, September 26, 1983, October 3,

1983, October 28, 1983, November 16, 1983 and December 20,

1983. At the hearings, the respondent was represented by

Michael Shen, Attorney from the office of Shneyer and Shen.

Jerc.ne Weisberger, was the attorney for the Authority.

At the commencement of the August 26, 1983 hearing, the

Authority, moved to amend charge ten by deleting the word

“Assistant”, so that the sentence would read Manager instead

of Assistant Manager. The Authority’s motion to amend charge

ten was granted by the Trial Officer.

A-62

The respondent pleaded not guilty to all the charges and

specifications.

During the November 11, 1983 hearing, the respondent’s at-

torney Michael Shen, made application to withdraw from the

case with the respondent’s consent. At the end of the November

11, 1983 hearing Mr. Shen’s motion to withdraw as Ms. Owens’

attorney, was granted by the Trial Officer.

The respondent, Ms. Owens, was given a one month adjourn-

ment to obtain legal representation for the completion of her

hearing. on the adjourned date, December 20, 1983, the respon-

dent appeared without legal or union representation for her

hearing, and testified on cross examination in her own behalf.

Charge 1

The Authority called Housing Manager, Morris Johnson, as

its first witness. Mr. Johnson’s testimony was in substance to the

following effect: That on the morning of July 21, 1981, the

respondent came to his office, and complained about a transfer

request which she had made, and which had not been approved.

She indicated that he was responsible for her transfer request

not being approved, and stated that he (Mr. Johnson) was pre-

judiced against her color. She also stated to him something to

the effect, that she was not used to working with niggers. The

witness further testified that the respondent left his office and

returned an hour later with a new transfer request which he

signed. After signing the transfer request, the respondent again

accused him of being prejudice, and refused to leave his office

when he directed her to do so. The witness concluded his

testimony by stating that the respondent, instead of leaving his

office as directed, stood in his door-way so that he could not

close the door. At which point, he left the office through another

exit.

On, cross examination, the witness testified that he had

prepared and given the respondent a written memo, dated July

22, 1981, relative to her insubordination and refusal to obey

A-63

an order. (see respondent’ exhibit #1) Mr. Johnson further

testified, that he had decided to have a local hearing relative

to Ms. Owens’ insubordination and refusal to obey an order,

however, Ms. Owens was transferred shortly after the incident,

and he gave consideration to a union request to withdraw the

hearing on the grounds that the situation had been corrected,

in the sense, that she was no longer at the project.

The witness concluded his testimony, on cross examination,

by stating that local hearings are usually held within a month

or so of the incident. Ms. Owens then stated that she was

transferred to LaGuardia Houses on August 11, 1981.

The respondent testified in her own behalf and denied using

abusive and insulting language to Mr. Johnson, and further

denied the incident described by Mr. Johnson ever happened.

Ms. Owens concluded her testimony by stating that she received

the memorandum Mr. Johnson after she went to the Inspector

General, and that she believed that he Johnson) Lied about the

incident on, only to have negative data to place in her personnel

folder.

It is the opinion of the undersigned, based on a plenary review

of the credible and convincing testimony of Manager Morris

Johnson, that the respondent did direct abusive and insulting

language toward him on July 21, 1981, by stating that she was

not use to working with niggers, and that she failed to obey Mr.

Johnson’s order to leave his office. The respondent’s testimony

denying the charges, and her explanation of Mr. Johnson’s motive

for giving her a written memo relative to the charges, were both

unconvincing and unworthy of belief. Therefore, the under-

signed finds the respondent guilty of Charge | specifications a

and b.

Charges 2 and 3

Relative to Charges 2 and 3, the Authority called Assistant

Manager, Lawrence Lefkowitz, as its second witness. Mr.

Lefkowitz testified in substance to the following effect: That

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on September 2, 1982, Ms. Zahl, a Housing Assistant, had to

go into the field, as part of her duties, and that it is the policy

of the Authority to have a Housing Assistant accompanied by

another person, rather than having the Assistant go into the field

alone. Therefore, he asked Ms. Owens to accompany Ms. Zah!

to the field, which Ms. Zahl stated to him, Ms. Owens refused

to do. When he asked Ms. Owens what the problem was, she

started shouting at him in the hallway, while pointing her finger

at him and complaining that she was not being treated fairly,

and that she wouldn't stand for it. However, she (Ms. Owens)

continued to point her finger in his face, yell, and followed him

into the reception area. The witness further testified that he

assigned someone else to accompany Ms. Zahl to the field, and

that on the following day, September 3, 1982, he gave the respon-

dent a memorandum regarding her behavior on September 2,

1982, and attempted to counsel her, which she refused. After

Mr. Lefkowitz gave Ms. Owens the memo, (see Authority’s ex-

hibit #7), she entered his office and said to him, “you fucking

stupid son of a bitch, you cross-eyed bastard, is your mother

as ugly as you,” and other comments of a similar nature.

on cross examination, Mr. Lefkowitz described the respondent

as a person who is subject to wide mood swings and behavior,

in the office. He added, that there were times when she acted

very cooperative, and claimed she wished to do her work, and

unfortunately, many other times when she was sarcastic, looked

at her work as a joke, was abusive, insulting, unable to under-

stand and follow instructions, and unable to cooperate in an

office atmosphere. In concluding his testimony on cross examina-

tion, the witness admitted that his memo of September 3, 1982,

did not indicate that he had directed the respondent to accom-

pany Ms. Zahl to the field, (see Authority exhibit #7), and fur-

ther stated, that he prepared a memo on September 7, 1982,

for the Manager of LaGuardia Houses, (see Authority exhibit

#14), relative to the respondent’s use insulting and abusive

language against him on September 3, 1992.

The respondent testified in her own behalf relative to Charges

2 and 3. She testified in substance to the following effect: That

A-65

she told Mr. Lefkowitz that Wendy Zahl had refused to go into

the field with her on at least four different occasions, therefore,

she objected to go out into the field with Ms. Zahl, and that

she didn’t refuse to go. The witness further stated, that she was

never directed by Mr. Lefkowitz to accompany Ms. Zahl to the

field, and that she was never insubordinate to Mr. Lefkowitz,

nor did she ever yell, or point her finger at him. However, when

asked if she ever raised her voice, the respondent said, yes. The

respondent further testified that she never directed foul or

abusive language at Mr. Lefkowitz when he attempted to counsel

her, and that she never cursed at or called him bad names.

However, on cross examination, the respondent admitted call-

ing Mr. Lefkowitz a “filthy dirty pig.”

Housing Assistant Pinder, was called to testify as a character

witness for the respondent. Mr. Pinder testified, that he worked

with Ms. Owens, and that he never heard her swear, however,

he has heard her yelling on one or two occasions, and that he

probably heard the respondent yelling at the mauager or

assistant manager in the past.

It is the opinion of the undersigned, based on a plenary review

of the credible and convincing testimony of Assistant Manager

Lefkowitz, and an examination of the Authority’s exhibit #7,

that the respondent did disobey a direct order by her supervisor,

on September 2, 1982, to accompany a coworker in the field,

and was otherwise insubordinate. The respondent admitted

during direct examination that she objected to accompanying

Ms. Zahl to the field, but that she didn’t refuse to accompany

her. Ms. Gwens also denied that she was given a direct order

to accompany Ms. Zahl by Mr. Lefkowitz, and that she never

yelled or pointed her finger at Mr. Lefkowitz. Therefore, the

respondent is found guilty of Charges 2 and 3.

Charge 4

Relative to Charge 4, specifications a and b, the Authority

called its third witness, Manager John Arakel. Mr. Arakel

A-66

testified in substance to the following effect: That on February

18, 1983, after attempting to counsel the respondent, the res-

pondent returned to her office and turned her radio up to an

unreasonably loud level. When he asked the respondent to turn

her radio down, she refused, and said to him later in the day

in his office, “I understand you don’t like women,” and “I want

you to know, I am all woman.” When he asked the respondent

to leave his office she refused to do so.

On cross examination, Mr. Arakel stated that he believed the

respondent turned her radio up loud to create a confrontation

with him. He further admitted during cross examination, that

the reason he didn’t mention this incident in any of his memos,

was due to an oversight on his part.

The respondent testified that there were occasions when Mr.

Arakel asked her to turn down her radio because it was to Loud,

and she turned the radio off, because she couldn’t turn it down.

The respondent denied directing insulting and offensive

Language at Mr. Arakel, and was otherwise insubordinate.

The undersigned found Mr. Arakel’s testimony to be credible

and convincing relative to the respondent playing her radio loud,

and refusing to turn it down, when directed to do so. However,

the Authority failed to present sufficient and convincing

testimony or evidence, to prove by a preponderance of the

evidence, that the respondent directed insulting and offensive

language to Mr. Arakel, and was otherwise insubordinate. The

statements, “I understand that you don’t like women,” and “I

want you to know, I am all woman,” are not in and of themselves

insulting and offensive language, especially if either one or both

of these statements happen to be true. Therefore, it is the find-

ing of the undersigned, that the respondent is guilty of specifica-

tion 4(a), and not guilty of specification 4(b).

Charge 5

Assistant Manager Lefkowitz testified as follows relative to

Charge 5: That at about twenty minutes past nine, March 2,

A-67

1983, he went to the respondent’s office to ask her about an

assignment that was overdue. The witness further testified that

Ms. Owens responded to his inquiry, by saying to him, “Tough,

get the fuck out of here.”

However, the respondent: denied during her testimony that

she used foul or abusive language to Mr. Lefkowitz on March

2, 1983, when he asked her if her dispossesses were ready, to

which she replied in the affirmative.

It is the finding of the undersigned, after reviewing the

testimony and evidence against the respondent relative to Charge

5, that the respondent did use abusive and foul language toward

Mr. Lefkowitz, the Assistant Manager, on March 2, 1983, and

was otherwise insubordinate towards him. This finding is based

on the credible and convincing testimony of Mr. Lefkowitz, as

oppose to the respondent’s testimony, which consisted of an un-

convincing denial of the charge. Additionally, the undersigned

had to admonish the respondent for reading from prepared notes

while testifying relative to Charge 5, which seriously detracted

from the credibility of her testimony.

Therefore, the respoident is found guilty of Charge 5.

Charge 6

Relative to Charge 6, Assistant Manager Lefkowitz, testified

as follows: That on March 10, 1983, he, and the Manager, Mr.

Arakel, counselled the respondent relative to her income review

backlog, and lack of cooperation. Additionally, when he attemp-

ted to give Ms. Owens a memorandum (see authority’s exhibit

#8) she became disrespectful made hand motions, like hurry-

up signs, and made faces before she walked out on the coun-

selling session, without signing for the March 10, 1983, memo.

The respondent testified in her own behalf relative to Charge

6, and denied that she was disrespectful, insubordinate, or that

she walked out of the counselling session.

It is the finding of the undersigned, after reviewing all

the testimony and evidence relative to Charge 6, that the

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respondent is not guilty of being insubordinate, disrespectful,

or that she walked out of the counselling session, on March 10,

1983.

Notwithstanding the fact that Mr. Lefkowitz gave credible

and convincing testimony relative to Charge 6, it is the conclu-

sion of the undersigned, that the Authority failed to prove by

a preponderance of evidence, that the respondent was insubor-

dinate and disrespectful toward her supervisors by the use of

hand gestures and facial expressions.

The respondent is therefore found not guilty of Charge 6.

Charge 7

Relative to Charge 7, the manager, Mr. Arakel, testified in

substance to the following effect: That on March 10, 1983, the

respondent walked out of a counselling session before it was over,

however, when Ms. Owens was directed to return to the counsell-

ing session, she did so, shouting hysterically, yelling, and accusing

him, (Mr. Arakel), of harassing her.

She, (Ms. Owens), then approached him, (Mr. Arakel), and

started shaking her finger in his face stating that “you are harass-

ing me, and you are not going to get away with this,” and punc-

tuating her remarks by striking Mr. Arakel with her finger on

his upper lip.

On cross examination, Mr. Arakel admitted that he wasn’t

hurt when the respondent pushed her finger into his lip, however,

he did find Ms. Owens to be intimidating, because of her in-

stability and her combative and aggressive behavior. Mr. Arakel

concluded his cross examination, by stating that he referred the

respondent for a psychiatric examination, because, he perceived

her to be unstable. The respondent, however, was found by the

authority’s psychiatrist, not to be impaired mentally, and she

was returned to work.

The respondent testified in her own behalf relative to Charge

7, in substance to the following effect: She denied that on March

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10, 1983, or any other time, did she intentionally, or inadvertent-

ly raise, or shake her finger or otherwise strike Mr. Arakel on

the lip, or be insubordinate to him. She did, however, admit

that she was close enough to Mr. Arakel on March 10, 1983, to

strike him. The respondent concluded her testimony by stating,

that it was Mr. Arakel who pushed and shoved her from his of-

fice, after which she threatened to have him, (Mr. Arakel),

arrested.

It is the finding of the undersigned, after reviewing and

evaluating all the relevant evidence and testimony relative to

Charge 7, that the respondent did intentionally and wilfully,

physically menaced Mr. Arakel by striking him in his face with

her finger, and being otherwise insubordinate.

The respondent is found guilty of Charge 7 primarily on the

basis of the credible and convincing testimony of Mr. ArakeL,

unconvincing denial of the respondent. Additionally, the res-

pondent’s testy combative, and sometimes unruly demeanor on

the witness stand, served to underscore Mr. Arakel’s testimony

of the respondent's intimidating, aggressive, obstreperous, and

insubordinate behavior as a housing assistant. Therefore, the

respondent is found guilty of Charge 7.

Charge 8

Relative to Charge 8, (a and b), Assistant Manager Lefkowitz,

testified in substance to the following effect: That on March 22,

1983, at about 9:20 a.m., he went to the respondent's office to

inquire about her unauthorized absence the previous day. when

he questioned the respondent, she began to scream at him, “you

pig, you fucking pig, you son of a bitch, don’t touch me.” Ms.

Owens then rose from her desk and started to follow him (Mr.

Lefkowitz who immediately sought the assistance of the

superintendent of the project, Mr. Flack. After Mr. Flack had

quieted Ms. Owens down and left the area, Ms. Owens went

into his (Mr. Lefkowitz’s) office screaming, “you filthy pig, you

molested me again, don’t touch me.” Mr. Lefkowitz, concluded

his testimony relative to Charge 8, a and b, by stating that the

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respondent called the housing police, who responded and were

present when Ms. Owens served him with a summons for the

mediation center. The witness emphatically stated, that he never

struck, molested, or verbally abused the respondent at any time.

Mr. Arakel, testified on cross examination, that he had sent

a memo to the chief manager, dated March 22, 1983, (see

authority’s exhibit #2) relative to Ms. Owens screaming at Mr.

Lefkowitz and calling him a “filthy pig.” Mr. Arakel also alleged,

that the respondent falsely accused Mr. Lefkowitz of molesting

her, and that he based that conclusion on the fact that he knew

Ms. Owens to be a habitual liar.

The respondent testified in her own behalf relative to Charge

8, a and b, in substance to the following effect: That she was

not loud and abusive to her assistant manager. She further

testified, that on march 22, 1983, Mr. Lefkowitz came into her

office, slammed her door and grabbed her by the arm, saying

lets talk. The respondent became angry, and said to Mr.

Lefkowitz in a loud voice, that he could speak to her without

slamming the door or pulling on her arm. Ms. Owens concluded

her testimony by admitting that she called mr. Lefkowitz a ‘filthy

pig, because, he dropped cigarette ashes all over her desk,

however, the respondent denied being insubordinate to Mr.

Lefkowitz- Additionally, the respondent testified that she didn’t

protest to anyone relative to Mr. Lefkowitz’s alleged harassment

of her on March 22, 1983, however, she may have written a

couple of memos. The respondent failed to indicate to whom

the memos were written, or to offer the alleged memos as the

respondent’s exhibits.

It is the opinion of the undersigned, after reviewing all the

testimony and evidence offered relative to Charge 8, specifica-

tions a and b, that the respondent was loud and abusive toward

Mr. Lefkowitz on March 22, 1983, and did falsely accuse him

of molesting her and was otherwise insubordinate. The res-

pondent is found of Charge 8, specifications a and b, on the

basis of the credible and convincing testimony of Mr. Lefkowitz,

which was corroborated by Mr. Arakel, who testified that he

A-71

heard Ms. Owens screaming at Mr. Lefkowitz, calling him a

“filthy pig,” and falsely accusing Mr. Lefkowitz of molesting her,

on March 22, 1983. (see authority’s exhibit #2)

On the other hand, the respondent’s testimony and denials

were found by the undersigned, to be unconvincing and unwor-

thy of belief. Additionally, the respondent admitted speaking

in a loud voice to Mr. Lefkowitz because she was angry, and

she also admitted calling him a “filthy pig,” because, he dropped

cigarette ashes on her desk.

Relative to specification 8b, it is the opinion and finding of

the undersigned, based on the credible testimony of both Mr.

Lefkowitz and Mr. Arakel, that Ms. Owens falsely accused Mr.

Lefkowitz of molesting her as means of defending herself against

charges of insubordination, and countering criticism for her

disruptive and outrageous behavior that was brought to the at-

tention of Mr. Flack, superintendent of LaGuardia Houses.

Therefore, the undersigned finds the respondent guilty of

Charge 8, specifications a and b.

Charge 9

Relative to Charge 9, Mr. Lefkowitz testified in substance to

the following effect: That on March 23, 1983, at about 3:15 p.m.,

he went into the respondent’s office to discuss a tenant’s account

with her, when the respondent began yelling, “you filthy pig,

you fucking pig, don’t touch me again,” and moved close to his

face pointing her finger without touching him.

Mr. Lefkowitz concluded his testimony by stating that there

were no witnesses to the incident that he was aware of.

The respondent testified, and denied being loud and abusive

and having directed foul language at the assistant manager, on

March 23, 1983.

It is the finding of the undersigned, after a plenary review

of all the relevant testimony and evidence, that the respondent

A-72

is guilty of Charge 9. The respondent’s guilt was established

by the credible and convincing testimony of Mr. Lefkowitz.

On the other hand, the undersigned found the respondent’s

testimony and denial of the charge, unconvincing and not

believable.

Therefore, the undersigned finds the respondent guilty of

Charge 9.

Charge 10

Relative to Charge 10, Mr. Arakel, the manager, testified in

substance to the following effect: That on March 28, 1983, the

respondent came to work late, at about 12:53 p.m., without call-

ing him or the office. When he asked the respondent why she

was Late for work, she replied that it was none of his business,

and refused to tell him. When he informed Ms. Owens that she

could not remain in the office “outside of his supervision,” she

failed to answer After he Left the respondent’s office, she came

to his office and said to him, “and that is another nail in your

coffin.”

On cross examination, Mr. Arakel admitted that he did not

prepare a counselling memo for the respondent relative to her

lateness, on March 28, 1983, and the disrespectful remarks she

made to him. The reason given by the witness for not prepar-

ing a memo relative to the incident on March 28, 1983, was that

there were so many incidents at the time, that he didn’t have

the time to sit down and write a memo on every incident.

The respondent testified in her own behalf relative to Charge

10, in substance to the following effect: That she did punch in

for work on March 23., 1983, at about 12:30 p.m. or 1:00 p.m.,

because she was in court regarding a complaint that she had

made against Mr. Lefkowitz. Ms. Owens also admitted that she

did not request time off to go to court according to the Author-

ity’s established procedures. The respondent concluded her

testimony by denying that she was disrespectful or insubordinate

to Mr. Arakel on March 28, 1983.

A-73

It is the finding of the undersigned, after hearing and review-

ing the credible and convincing testimony of Mr. Arakel, that

on March 29, 1983, the respondent addressed Mr. Arakel in a

disrespectful and hostile manner and was otherwise

insubordinate.

On the other hand, the undersigned found the respondent’s

denial of the charge, unconvincing, and her contentious de-

meanor on the witness stand to be corroborative of Mr. Arakel’s

testimony relative to Charge 10. The respondent also displayed

an apparent hostile and disrespectful attitude toward Mr. Arakel

throughout her testimony.

Therefore, the undersigned finds the respondent guilty of

Charge 10.

Charge Ll

Relative to Charge 11, specifications a, b, c, and d, Mr. Arakel

testified in substance to the following effect: That on March 29,

1983 Ms. Owens came to work at 1:17 p.m., and when he asked

her where she was, she responded, “I find you ugly, I find you

ugly and obnoxious.” When he continued to question her about

her whereabouts, she went into Mr. Meyer’s office without

answering him. After following her into Meyer’s office and tell-

ing her that she can’t come in and do nothing, that she had to

do some work, especially what he had told her to do. She then

got up from the desk, and shoved him as she left the office, and

went downstairs to the maintenance area, where she lingered

with the caretakers.

On cross examination, Mr. Arakel repeated his direct testimony

relative to the incident with the respondent, on March 29, 1983.

The respondent testified in her own behalf relative to Charge

ll specifications a, b, c, and d, in substance to the following

that on March 29, 1983, when she punched in for work, Mr.

Arakel and Lefkowitz came to her office, and asked her where

she had been all. morning. She replied that she was in court,

A-74

and that she wasn’t going to take all their abuse, so she went

into Mr. Meyer’s office.

She admitted that she raised her voice in anger to Mr. Arakel,

however, she denied shoving him, being insubordinate, or calling

him ugly and obnoxious. 2

It is the finding of the undersigned, after hearing and review-

ing the credible and convincing testimony of the Manager, Mr.

Arakel, that the respondent, a) did refuse a direct order from

him to perform her regular assigned duties, b) that she did ad-

dress him (Mr. Arakel) in a loud and hostile manner, by her own

admission, c) that she physically shoved Mr. Arakel with her

hand, and d) that she was otherwise insubordinate.

The respondent’s denial of Charge 11, specifications a, b, c,

and d, were found by the undersigned to be unconvincing and

unworthy of belief.

The respondent exhibited throughout her testimony, a com-

bative, contemptible, and disrespectful attitude toward authority

in general, and authority figures in particular.

Therefore, the undersigned finds the respondent guilty of

Charge 11, specifications a thru d.

Charge 12

Relative to Charge 12, Mr. Arakel, the manager, testified in

substance to the following effect: That on March 9, 1983, the

respondent was absent without leave from work, and gave no

explanation. on March 10, 1983, the respondent punched out

at 12:20 p.m., without permission, after walking out of a

counselling session. March 1, 14, 15 and 21, 1983, the respondent

was absent without leave from work. on March 16, 1983, the

respondent punched out at 1:41 p.m., and was docked 3 1/2

hours. on March 17, 1983, the respondent came to work at 12:57

p,m., instead of 9:00 a.m. (see authority’s exhibit 15)

A-75

On cross examination, Mr. Arakel testified that the apparent

erasures of the letter “S” on the respondent’s time cards for the

dates, march 9, 11, 14, 15, and 21, 1983, were made at his in-

structions by his secretary, who replaced the letter “S” with the

letter “P.” Mr. Arakel’s explanation for the change, was that his

secretary routinely places an “S”, for sick, when an employee

is absent from work without calling the office, however, he

directed the change to “P”, indicating personal leave not sick

leave. (see authority’s exhibit 15)

The respondent testified relative to Charge 12, in her own

behalf in substance to the following effect: That on March 9,

1983, she called in sick, but she couldn’t remember who she spoke

to, however, she believes it was Mr. Arakel’s secretary.

On March 10, 1983, she punched out early after telling Mr.

Arakel that she wasn’t feeling well. The respondent submitted

a doctor’s note for the days, March 10 thru 15, 1983, and a second

note for March 18, 1983, which stated, “Treated on March 18,

1983, in my office.” (see respondent’s exhibit 6) The respondent

further submitted a Request to appear before the Dispute Resolu-

tion Center, March 2] 1983, for Mr Arakel, as the reason for

her absence on that date. (see respondent's exhibit 7) The respon-

dent further testified that she probably clocked out early on

March 16, 1983, because she generally, felt ill after following

an episode with Mr. Arakel or Mr. Lefkowitz. Relating to March

17, 1983, the respondent concluded her testimony by stating that

she probably had to go to court for either Mr. Arakel or Mr.

Lefkowitz during the morning, however, she could not find any

papers to substantiate that belief.

It is the finding of the undersigned, after reviewing the

testimony and evidence submitted relative to the respondent be-

ing absent from work without permission and justification on

March 9, 10, 11, 14, 15, 16, 17, and 21, 1983, that the respon-

dent’s doctor’s note (see respondent’s exhibit 6) was an accep-

table justification for her March ll, 14, and 15th absences, in

accordance with the authority’s rules and regulations.

A-76

However, it is the conclusion of the undersigned, that the

respondent was absent without leave on March 9, and 21, all

day, March 10 and 16, 1983, the respondent punched out early

without authority or permission, and on March 17, 1983, the

respondent came to work in the afternoon without prior per-

mission or authority.

The respondent testified, that on March 9, 1983, she stayed

home, because she was sick, and that she notified her job by

calling and speaking to Mr. Arakel’s secretary. Mr. Arakel testi-

fied on the other hand, that Ms Owens did not call him or his

secretary relative to her absence on March 9, 1983. It is Mr.

Arakel’s testimony that the undersigned finds to be credible on

this point as oppose to the respondent’s testimony. Notwithstand-

ing, the fact that Mr. Arakel admitted that he had his secretary

erase the letter “S” and replace it with the letter “P’ for (per-

sonal day) on the respondent’s time card for March 9, 1983.

Relative to March 10, 1983, the respondent admitted that she

punched out early from work, because she wasn’t feeling well,

without notifying her supervisor or obtaining his prior consent

or permission in accordance with the authority’s regulations.

Relative to March 16, 1983, the respcndent also admitted that

she would leave work early whenever she had an episode with

either Mr. Arakel or Mr. Lefkowitz, and that March 16, might

have been one of the days. Relative to March 17, 1983, when

the respondent clocked in for work late, and March 21, 1983,

when the respondent was absent the entire day, the respondent’s

explanation was that she had to appear in court. However, the

respondent admitted that she failed to get prior approval or per-

mission to be late on March 17, or absent on March 21, 1983,

according to the Authority’s rules and regulations.

Therefore, the respondent is found guilty, in part, of Charge

12, for being absent without permission or justification on March

9, and 21, 1983, and for leaving work early without permission

or justification on March 10, and 16, 1983. On March 17, 1983,

respondent is also found guilty, for coming to work late, without

obtaining prior permission or authority.

A-77

Charge 13

Relative to Charge 13, specifications a and b, Mr. Lefkowitz

testified in substance to the following effect: That as a housing

assistant, the respondent is responsible for reviewing tenant's

incomes, which is the basis for setting tenant’s rents. The respon-

dent was assigned two buildings as her area of responsibility

for conducting annual tenant income reviews which was

scheduled on a quarterly basis. (see authority’s exhibit 9)

Mr. Lefkowitz further testified, that his manager, Mr. Arakel,

counselled the entire managerial staff, including the respondent,

relative to procedures to follow for the eradication of the

backlog of tenant reviews. (see authority’s exhibit 10) However,

despite counselling sessions with the respondent relative to

her backlog of income reviews, she failed to complete 41 out

of a total of 60 reviews for the first quarter of 1983, prior to

leaving LaGuardia Houses, March 30, 1983. (see authority’s

exhibit 11)

Additionally, the respondent had 49 incomplete reviews trom

’82, plus 41 incomplete for ’83, for a total of 90 incomplete in-

come reviews. The witness concluded his testimony by stating,

that due to the respondent’s failure to complete her income

reviews on time, the authority lost approximately $2,201.00 in

revenue from uncollected rents, and that the respondent's failure

to complete her income reviews on time, was also partly due

to errors that she consistently made such as e.g., a) non-fixed

employment projected as fixed employment b) improper verifica-

tion of family members entering the household, c) tenant’s in-

formation was not verified and placed in tenant’s interview

record, d) social security recipients and their incomes were pro-

jected incorrectly, e) Federal exernptions were often incorrectly

applied, and f) retroactive credits and charges, were often in-

correctly applied.

On cross examination, Mr. Letkowitz testified that he at-

tributed part of her failure to complete her income reviews on

time, to her refusal to cooperate with Mr. Arakel and himself.

A-78

However, when other housing assistants fell behind with their

income reviews, they were generally able to catch up with their

work when they cooperated with management.

Mr. Lefkowitz rated the respondent as the poorest performer

out of the four housing assistants who were responsible for in-

come reviews Manager, Mr. Arakel, testified relative to Charge

13, specifications a and b, in substance to the following effect:

That the respondent’s income reviews were her “greatest liability

and backlog.” The authority also called Assistant Manager,

Stephen Freiband, as a rebuttal witness. Mr. Freiband, who

works with the HUD Acquired Properties, also wrote the

authority’s manual on income reviews, testified in substance to

the following effect: That the respondent worked for him, at

the Wagner Houses, in 1981. That he found the respondent's

work unsatisfactory relative to income reviews, because the work

was not completed on time, and she had a fairly high percen-

tage of errors, at least 50 % . The witness concluded his testimony

by stating, that even after additional training, the respondent's

performance was sporadic, but for the most part, her per-

formance was unsatisfactory.

On cross examination, Mr. Freiband testified, that out five

housing assistants, the respondent was the only unsatisfactory

performer relative to income reviews. The witness concluded

his testimony by stating, that the respondent’s income reviews

were unsatisfactory, and that he didn’t recall paying the respon-

dent a compliment, however, it is possible that he did pay her

a compliment relative to other aspects of her work.

Prior to calling the respondent to testify in her own behalf

rolative to Charge 13, specifications a and b, Mr. Weisberger

and Mr. Shen, stipulated for the record, the number of late

tenant review files for each of the four quarters of 1982, and

the first quarter of 1983, out of the total number of cases assigned

for review to the four housing assistants, at LaGuardia Houses.

The stipulation is as follows:

Year 1982 Year 1983

HA Ist Qrt. 2nd Qrt. 3rd Qrt. 4th Qrt. Ist Qrt.

Owens 21LR 26LR 1ILR 34LR 41LR

60tot. 70tot. 60tot. 184tot. 60tot.

35%LR 37%LR 18%LR 29%LR 68%1l,.

Zahl 4OLR 77LBR 0 36LR 23LR

124tot. 124tot. 0 123tot. 124tot.

32%LR 62%LR 29%LR 19%LR

Meyer 06 57LR 0 0 - 182LR

0 108tot. 0 0 246tot.

53% LR 66% LR

Pinder 58LR 37LR 0 0 103LR

247tot. 120tot. 0 0 247tot.

23%LR 31%LR 42% LR

A-79

LR - Late Report

The Authority submitted the following unstipulated to figures,

relative to the.tenant reviews that remained undone as of March

30, 1983, for the calendar year 1982, and the first quarter of

1983 as follows:

As of March 30, 1983

Zahl - 6 undone reports out of 367 - ’82 - 23 undone

out of 124 - 83

Pinder - 2 undone reports out of 367 - ’82 - 102 un-

done cut of 247 - ’8s

A-80

Meyer - 8 undone reports out of 382 - ’82 - no in-

completes in "83

Owens - 49 undone reports out of 374 - ’82 - 41 un-

done out of 60 - ’83

The respondent’s testimony relative to Charge 13, was in

substance to the following effect: That she probably completed

more than half of her income reviews for the lst quarter of ’83

before she left LaGuardia Houses, March 30, 1983. The respon-

dent also stated, that she couldn’t complete more income reviews

before March 30, 1983, because she had to request, and wait

for information. She further alleged, that she was told by her

supervisor, not to send for any information prior to February

15, 1983. The respondent concluded her testimony, by denying

that she was incompetent, or that she failed to complete past

due tenant income reviews for 1982, and the Ist quarter of 1983.

It is the finding of the undersigned, after reviewing all the

testimony and evidence relative to Charge 13, specifications (a)

and (b), that the respondent did fail to complete past due tenant

income reviews for 1982, and the first quarter of 1983, and that

the respondent made repeated errors in preparing her tenant

income review reports.

The Hearing Officer’s finding is based on the credible and

convincing testimony of Mr. Lefkowitz. Mr. Lefkowitz, the

respondent’s immediate supervisor, testified that on several oc-

casions he attempted to counsel the respondent relative to the

proper and timely preparation of tenant income reviews, (see

authority’s exhibits 3, 4, 14 and 16) to no avail. There was also

convincing and persuasive testimony by Mr. Freiband, who

stated that the respondent worked for him at the Wagner Houses,

in 1981, and that he found her work relative to income reviews,

to be unsatisfactory, because the income reviews were often sub-

mitted late, by the respondent, with a fifty percent error rate.

It should be noted, that Mr. Freiband was asked to testify only

after the respondent gave testimony that he (Mr. Freiband), had

praised her work in the area of income reviews.

A-81

Additionally, an inspection of the stipulated statistics of the

completion rates of all the housing assistants assigned to the

LaGuardia Houses during 1982 and the first three months of

1983, would appear to indicate that the respondent’s comple-

tion rate of income reviews was not substantially lower than her

colleagues.

However, an examination of the authority’s figures relative

to the outstanding income reviews for all LaGuardia Housing

Assistants, as of March 30, 1983, clearly indicate that the res-

pondent had the largest number of ’82 and ’83 incomplete tenant

income review reports. The credible and convincing testimony

of Mr. Lefkowitz attributed the respondent’s substantial number

of incomplete income reviews to the respondent’s opposition and

resistance to any and all counselling. However, Mr. Lefkowitz

testified that the other housing assistants who had income review

backlogs were amenable to counselling.

(see authority exhibit 10)

On the other hand, the respondent’s testimony and denials

that she failed to complete her tenant income reviews in timely

fashion, and that she didn’t make repeated errors, was found

to be unworthy of belief and unconvincing by the undersigned.

Therefore, the undersigned finds the respondent guilty of

Charge 13, specifications a and b.

Summary

The respondent was found guilty after a plenary review of

all the testimony and evidence, of the following charges: Charge

1, 2, 3, 4a, 5, 7, 8a, and b, 9, 10, Ila thru d, 12, dates 3/9, 3/10,

3/16, 3/17, and 3/21, and 13a and b, and not guilty of Charge

4b, 6, 12, dates 3/11, 14, and 15, 1983.

The respondent was appointed as a housing assistant, July

1978, she is 54 years old. Ms. Owens was the subject of one

prior disciplinary proceeding for using abusive language to her

A-82

supervisor, and for using abusive and threatening language to

her supervisor, on March 11, 1981. She was found guilty of both

charges and fined $100.00

It is the finding and opinion of the undersigned, that the

respondent engaged in disorderly and disruptive behavior when

assigned to the LaGuardia Houses, and was insubordinate,

disrespectful, threatening, and abusive to her supervisors, to the

extent that the day to day operations of LaGuardia Houses were

adversely affected. The respondent’s obstreperous, hostile, ag-

gressive behavior and attitude, were often displayed during the

hearing. Ms. Owens demonstrated throughout the hearings, her

contempt for authority, and for complying with the rules and

procedures of the Authority.

The respondent’s bad temper, abusive and threatening

language, and do as I please attitude, if permitted to go

unchecked, will cause irreparable harm and damage for the

authority, its employees and tenants. Therefore, it is the recom-

mendation of the undersigned, that the respondent be dismissed

as a Housing Assistant, as a just and proper sanction for being

found guilty of the herein serious charges.

Respectfully,

JONATHAN E. RAINES

Trial Officer

A-83

Opinion of Supreme Court, New York County

(February 25, 1985)

SUPREME COURT NEW YORK COUNTY

SPECIAL TERM PART I

Application of CATHERINE OWENS,

Petitioner,

For a Judgment pursuant to Article 78 of the

C.P.L.R. INDEX NO.

- against - 22266/84

NEW YORK CITY HOUSING AUTHORITY = 4933 of

and THE CITY OF NEW YORK, 12/27/84

Respondents.

IRA GAMMERMAN, J.:

This is an application by petitioner pursuant to CPLR Article

78 seeking a judgment annulling respondent New York City

Housing Authority’s action dismissing her from the position of

Housing Assistant. Co-respondent, the City of New York cross

moves pursuant to CPLR 7804(f) for a judgment dismissing the

petition on the ground that it fails to state a cause of action.

Petitioner challenges her dismissal alleging primarily that the

Trial Officer violated lawful procedure and also upon the ground

that the penalty imposed was grossly excessive.

It is undisputed that in August 1983 petitioner was

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