Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 65 EPD ¶43,315, Joanne Flynn, Plaintiff v. Goldman, Sachs & Co., Defendant., (Sep. 02, 1993), (Sept. 2, 1993)

Joanne Flynn, Plaintiff v. Goldman, Sachs & Co., Defendant.

United States District Court, Southern District of New York. No. 91 Civ. 0035 (KMW), September 2, 1993, (836 FSupp 152).

Title VII--Civil Rights Act of 1964

New York--Human Rights Law

Duplicity of Suits--State Law Claims--Election of Remedies.--

An employer’s election of remedies defense to a state law job bias claim posed no bar to an employee’s Title VII suit, despite the fact she had filed a claim with the Division of Human Rights. The election of remedies defense was intended to protect an employer from responding to charges in two different forums, but the state agency claimed that it had no record of receiving the claim from the EEOC. Further, the employer had never been required to respond to the employee’s charges. Moreover, even if the claim had been pending, the employee would be permitted to request a dismissal of that claim for “administrative convenience” during the pendency of the federal court action.

Back references.--¶2234.33 and New York ¶25,999.842 .

Sex Discrimination--Disparate Treatment--Relocation and Severance Pay.--

An employer was not entitled to summary judgment on an employee’s claim that she was treated differently than a similarly situated male employee with respect to a relocation option and a severance package. The employee presented evidence indicating that a male worker was offered an opportunity to relocate to another department at the time of his termination while the female employee was not. Additionally, the male was allegedly offered an opportunity to appeal his termination and severance package, but the female employee was never notified of this option.

Back references.--¶560 and New York ¶25,999 .

Sex Discrimination--Sexual Stereotypes--Aggressive Female Rejected.--

A female employee presented sufficient evidence from which it could be inferred that the reason that she was not promoted to a managerial position was because of a male coworker’s belief that she was “self-promoting”and too aggressive a woman. During the selection procedure, the male coworker indicated that the employee was responsible for “undermining all the male supervisors” to whom she reported and was responsible for the termination of one male employee. Because the evidence supported the employee’s argument that sex stereotyping was the cause of the promotion denial, the employer was not entitled to summary judgment on the discrimination claim.

Back references.--¶542.131 and New York ¶25,999.411

Promotions--Sex Discrimination--Hired to Fire Female Employee.--

Because it was possible for a fact finder to conclude that a woman who was selected for a promotional position was hired for the purpose of terminating another female employee rather than because she was better qualified for the position, the employer’s request for summary judgment was denied. Individuals involved in the selection decision were aware of the animosity between the two women, and from the first day she started work, the woman was warned about the employee’s “undermining” tactics. Additionally, on the first day she started work, the woman began keeping a journal that documented the employee’s faults. Finally, within two weeks after she began work, the woman adopted a departmental restructuring plan with respect to all employees in the department except the claimant, who was left with the only “ungraded” position in the department.

Back references.--¶542.131 and New York ¶23,999.411 .

Title VII--Civil Rights Act of 1964

Timeliness, Charges Filed with EEOC--Continuing Violation--Claims Connected.--

Because an employee provided evidence establishing a connection between her failure to be promoted and her eventual termination, her promotion denial claim was not time-barred, even though the charge was not filed with the EEOC within the 300-day limitations period. The employee alleged that her failure to be promoted, together with the selection of an individual with whom the employee had a history of animosity, was part of a concerted effort by the employer to terminate her because of her sex. Thus, because the employer hired the individual within the 300-day limitations period, the promotion denial claim was not time-barred.

Back reference.--¶1941.1911 .

Equal Pay Act of 1963

Wage Differentials--Equality of Work--Temporary v. Permanent Duty.--

An employer unsuccessfully argued that its higher salary for a male employee than for a female was justified because the female’s position as “Acting Manager” was temporary, resulting in a lower level of responsibility than that of the male’s permanent position. The female held the “temporary” position for more than eight months, creating a question as to whether the exception for temporary assignments applied. Moreover, although the male employee may have been responsible for management programs that the female was not involved in, her male replacement was not involved in the programs either, yet he received the exact salary that the permanent manager was paid.

Back reference.--¶518 .

Wood, D.J.: Plaintiff claims that her former employer, Goldman, Sachs & Co., discriminated against her by:

(1) paying her less than the man she replaced as Acting Manager of the Management Training and Development Department;

(2) failing to promote her to the position of Manager of that department;

(3) demoting her;

(4) terminating her; and

(5) giving her an inferior severance package.

Plaintiff claims that these were acts of gender discrimination that violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., the New York Human Rights Law (“NYHRL”), N.Y. Exec. L. Sec. 296, and the Equal Pay Act, 29 U.S.C. §206(d) . Defendant moves for summary judgment on all claims. For the following reasons, the court denies defendant’s motion, except to the extent stated below.

Background

Defendant raises four arguments in support of its motion: (1) that plaintiff elected to pursue an administrative remedy for her state law claims and is, therefore, barred from asserting her pendent claims under the New York Human Rights Law in this action; (2) that plaintiff offers no competent evidence from which a jury could reasonably conclude that defendant took the adverse employment actions because of plaintiff’s gender; (3) that plaintiff’s claims regarding defendant’s failure to promote her and her alleged demotion are barred by the 300 day limitations period; and (4) that plaintiff fails to sustain her burden of identifying any higher paid male who performed equal work during the limitations period of the Equal Pay Act.

I. Summary Judgment

Pursuant to Fed.R.Civ.P. 56(c), the moving party is entitled to summary judgment if the court determines that “there is no genuine issue of material fact to be submitted to the trier of fact, and that the movant is entitled to judgment as a matter of law.” Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). In determining whether the moving party has met this standard, “all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.” Id., citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986).

Although summary judgment is no less appropriate in discrimination cases than in other cases, see Meiri v. Dacon, [36 EPD ¶35,124 ] 759 F.2d 989, 998 (2d Cir.), cert. denied, [38 EPD ¶35,535] 474 U.S. 829 (1985), in any case where the credibility of conflicting witnesses must be assessed in deciding material issues of fact, the court should deny summary judgment and let the trier of fact make that assessment. The factfinder may, but need not, infer intentional discrimination if it finds defendant’s proffered reasons unworthy of credence. See Saint Mary’s Honor Ctr. v. Hicks, [61 EPD ¶42,322 ] 113 S. Ct. 2742, 2749 (1993). “[F]or the purposes of a motion for summary judgment, it must be recognized that a jury need not accept the testimony of defendants’ witnesses when surrounding circumstances would support a contrary inference.” Kirby v. Cullinet Software, Inc., 721 F. Supp. 1444, 1455 (D.Mass. 1989), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58 (1970); Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726, 737 (2d Cir. 1987), cert. denied, 485 U.S. 1007 (1988).

II. Election of Remedies with Respect to State Law Claims

Defendant asserts that plaintiff’s claims are barred because she elected to pursue an administrative remedy: she filed a claim with the New York State Division of Human Rights (“NYSDHR”). This argument is without merit. The election of remedies defense is an equitable doctrine intended to protect the employer from being required to respond to charges in two different fora. Here, NYSDHR claims that it has no record of receiving plaintiff’s claim from the EEOC. Defendant has never been required to respond to plaintiff’s charges before the NYSDHR. Moreover, even if plaintiff had a claim pending before the NYSDHR, decisional law favors permitting plaintiff to request a dismissal of that claim for “administrative convenience” even during the pendency of the federal court action. See Promisel v. First American Artificial Flowers, Inc., [57 EPD ¶41,050 ] 943 F.2d 251, 257 (2d Cir. 1991), cert. denied, 112 S. Ct. 939 (1992); Postema v. Nat’l League of Prof. Baseball Clubs, [59 EPD ¶41,683 ] 799 F. Supp. 1475, 1485-86 (S.D.N.Y. 1992) (plaintiff may request that the NYSDHR reopen a closed case solely to obtain a dismissal for administrative convenience), rev’d on other grounds, [62 EPD ¶42,525 ] 1993 U.S. App. LEXIS 15,504 (2d Cir. June 25, 1993) (per curiam). Such a course of action would make no sense here, given NYSDHR’s assertion that it never received plaintiff’s claim. The court finds that defendant’s election of remedies defense poses no bar to plaintiff proceeding to trial on her state law claims. The court also rejects defendant’s argument that the court should not exercise pendent jurisdiction over plaintiff’s state law claims. See Promisel, 943 F.2d at 254 (pendent jurisdiction routinely exercised in employment discrimination cases).

III. Title VII and NYHRL Claims

The issue to be decided in this case is whether the employer’s stated reason for an adverse employment action is merely a pretext for impermissible discrimination. [1] See Saint Mary’s Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2753 (1993). When passing on a summary judgment motion in a Title VII case, courts must apply the above-described summary judgment standards to the shifting burdens established in McDonnell Douglas Corp. v. Green, [5 EPD ¶8607 ] 411 U.S. 792 (1973) and its progeny.

Plaintiff has made out a prima facie case sufficient to defeat summary judgment. Defendant asserts that it has proffered non-discriminatory reasons for paying plaintiff less than the man she replaced, refusing to promote her, demoting her, terminating her, and granting her a severance package that was less favorable than that granted to a similarly situated male who left the firm. Thus, the court’s ruling on this motion centers on defendant’s argument that plaintiff cannot offer any evidence from which a rational fact finder could conclude that it is more likely that defendant’s actions were motivated by discriminatory reasons than by legitimate reasons. See, e.g., Rosen v. Thornburgh, [56 EPD ¶40,633 ], 928 F.2d 528, 533-34 (2d Cir. 1991) (reversing grant of summary judgment because fact finder could rationally conclude that defendant’s assertion that plaintiff was unqualified was unworthy of belief); Ramseur v. Chase Manhattan Bank, [48 EPD ¶38,549 ] 865 F.2d 460, 467 (2d Cir. 1989) (reversing grant of summary judgment because fact finder could conclude that defendant’s reasons for terminating plaintiff were pretextual); Tuck v. Henkel Corp., [59 EPD ¶41,733 ] 973 F.2d 371, 376-77 (4th Cir. 1992) (same), cert. denied, [60 EPD ¶42,036] 113 S. Ct. 1276 (1993).

Plaintiff has offered sufficient evidence to permit a rational factfinder to conclude that defendant’s actions were motivated by plaintiff’s gender, as opposed to plaintiff’s character. The following evidence proffered by plaintiff precludes summary judgment on her gender discrimination claims.

Plaintiff’s theory of this case is that she was the sole candidate for the job of Manager of the Management Training and Development Department (“MTD”) until she fired Edward Verlander, a male subordinate. Plaintiff asserts that defendant began to discriminate against her as a result of that firing, which she alleges was viewed by defendant as inappropriate solely because plaintiff is a woman, and the person she fired is a man. Defendant then started considering additional candidates for the job of MTD Manager, and ultimately chose Doris Smith. Plaintiff claims that when defendant hired Smith, defendant planned to use Smith as an instrumentality to terminate plaintiff. Plaintiff alleges that defendant knew, when it hired Smith, that plaintiff and Smith did not get along. Defendant argues that its hiring of Smith supports its position that it did not discriminate against plaintiff because of her gender. However, it is not inconceivable for a corporation to use a woman to discriminate against another woman.

[ Promotion Denial ]

Plaintiff has proffered the following evidence in support of her claim of discrimination. On June 29, 1988, plaintiff’s supervisor, A. Denny Scott, told plaintiff she was going to be promoted to Manager of MDT. Joint Annotated 3(g) Statement ¶80. Plaintiff had been commended for her performance in the Acting Manager position and for her leadership in filling the void created by the departure of her former supervisor, Peter Mathias. Id. ¶¶74, 79. Plaintiff’s interviews with the senior partners concluded on July 13, 1988. Id. ¶84. The next day, Scott approved plaintiff’s termination of Edward Verlander, one of plaintiff’s male subordinates, the first termination of a male subordinate by a female manager in the Personnel Department. Id. ¶¶91-92. Scott now suggests in his affidavit that plaintiff’s decision to terminate Verlander was improper and, therefore, justified an increase in Verlander’s severance package. Scott May 20, 1993 Aff. at ¶18.

By August 3, 1988 Verlander had aired his complaints about his treatment by plaintiff to Scott, Jonathan Cohen and other senior Goldman, Sachs officers. Id. ¶97. Scott told plaintiff that he could not tell her the reason the firm was “reopening the search for the manager position” and that she was no longer being considered as the lead candidate. Id. ¶102.

In support of her view that defendant denied her the promotion because of her gender, plaintiff points to the fact that Scott admits that he deemed the opinion of Nicola Caporale, a senior partner, “very significant” in ultimately choosing the new Manager. Scott Tr. 370-72. In 1987, when plaintiff was first considered for promotion to vice president, Scott was aware of Caporale’s opinion that plaintiff was too “self promoting.” Id. ¶¶49-52; 55-57. When Scott began the search of a permanent manager, in March of 1988, Scott affirmatively solicited Caporale’s input. Scott could not recall Caporale’s exact words to him, but plaintiff points out that Caporale told Smith on Smith’s first day that plaintiff was a “treacherous bitch,” who was responsible for undermining all the male supervisors to whom plaintiff had reported, and was responsible for the Verlander termination. Id. ¶127. Scott offered Smith the position of Manager on September 20, 1988.

The Supreme Court has stated that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Price Waterhouse v. Hopkins, [49 EPD ¶38,936 ] 490 U.S. 228, 250 (1989) (plurality). Plaintiff has produced sufficient evidence for a rational factfinder to infer that Scott’s rejection of plaintiff was motivated by a male coworker’s belief that plaintiff was too aggressive.

[ Purpose of Hire ]

It is also possible for a reasonable factfinder to conclude that Smith was hired by defendant for the purpose of terminating plaintiff, rather than because Smith was better qualified for the Manager position. Although outside consultant Handy Associates’ evaluation of Smith was quite favorable, it was based on Smith’s work at a different firm, where she supervised a smaller staff. Scott May 20, 1993 Aff. ¶9; Ex. C. Smith’s evaluation by the Goldman, Sachs partners who interviewed her does not appear to have been appreciably better than their assessment of plaintiff. Annotated 3(g) Statement ¶102. Further, at least one of the five interviewing senior partners specifically recommended that defendant not hire Smith. Id. ¶109. Smith had been rejected for the position of Manager in 1984, when she sought it then. Id. ¶104. Plaintiff, however, was commended for her work as Acting Manager at defendant. In light of all this evidence, a reasonable factfinder could disbelieve defendant’s assertion that Smith was better qualified than plaintiff. See Gibson v. American Broadcasting Companies, Inc., [52 EPD ¶39,546 ] 892 F.2d 1128, 1133 (2d Cir. 1989) (evidence comparing qualifications of other employees admissible in a Title VII suit).

Although there is no unequivocal evidence that officers of defendant involved in the decision to hire Smith were told about the animus between Smith and plaintiff, one could infer from the following facts that, before hiring Smith, Scott was aware of the past differences between Smith and plaintiff that had arisen in 1984-85 when Smith was an outside consultant to defendant’s Personnel Department and plaintiff was employed there. See Malarkey v. Texaco, Inc., [60 EPD ¶42,044 ] 983 F.2d 1204, 1213 (2d Cir. 1993) (jury may infer from negative comments made by employee to others about candidate, that the appointing officer was aware of employee’s negative assessment of candidate). During 1984-85, Smith had accused plaintiff of plagiarizing training materials, a charge plaintiff had denied. Annotated 3(g) Statement ¶16 . Plaintiff’s former supervisor, Thomas Kitrick, was aware of the animosity between plaintiff and Smith that dated back to 1984-85. Id. Smith at that time had warned Kitrick that plaintiff was not his friend and was trying to undermine him. Id. Kitrick was replaced as Manager of MDT in 1984 because the firm “became dissatisfied with his performance.” Neschis Dec. Ex. 4 (Cannon Jan. 19, 1990 Letter to EEOC) at 7. But Kitrick, despite having been replaced for cause in 1984 and having retired from Goldman, Sachs in 1985, was invited in March 1988 to meet with Scott and Cohen, when (1) the search for a permanent Manager was underway, (2) Smith had indicated her interest in the post to former colleagues at defendant, and (3) plaintiff was also a candidate. Annotated 3(g) Statement ¶65.

A reasonable factfinder could also infer from Smith’s behavior toward plaintiff immediately upon starting in the position of Manager that Smith was being used by defendant as an instrumentality to find a pretext to fire plaintiff. On Smith’s first day on the job, Caporale called Smith to warn her about plaintiff, and referred to plaintiff as a “very treacherous bitch.” Id. ¶127(E). That came day, another unidentified vice president also referred to plaintiff with the term “treacherous bitch.” Id. ¶127(F). During Caporale’s call to Smith on her first day, Caporale told Smith that plaintiff was responsible for undermining and destroying the credibility of associates and every boss she ever worked for including Bob Burke, Thomas Kitrick, Ricardo Shaw, Ed Verlander and Peter Mathias. Caporale then warned Smith that plaintiff had already begun to undermine Smith’s position and credibility. Id. ¶127(E). On Smith’s first day on the job, Smith began keeping a journal (the “JTF Journal”) in which she recorded these and other negative comments by coworkers about plaintiff. Smith kept notes only on plaintiff, and continued keeping notes after Smith terminated plaintiff in March of 1989. The meticulous way Smith sought to document plaintiff’s purported faults could lead a reasonable factfinder to conclude that, from the outset, Smith was amassing evidence in order to justify terminating plaintiff. Plaintiff’s claim that this evidence was mere pretext is supported by the fact that several of the people who, according to Smith’s records, made negative comments about plaintiff subsequently denied making any statements. Id. ¶¶133-37. Plaintiff also alleges that in their first meeting after Smith was hired on October 17, 1988, Smith again accused plaintiff of having committed plagiarism in 1984, and warned plaintiff that she would be terminated if she ever engaged in such conduct again. Id. ¶127(C). Within two weeks of starting at Goldman, Sachs, Smith adopted a departmental restructuring plan with respect to all employees in the department, except for plaintiff. Plaintiff’s position was the only position that was “ungraded,” and plaintiff was denied the new title of Manager, Sales Training. Id. ¶¶138-43. Plaintiff raises a material issue of fact with respect to whether plaintiff’s exclusion from the departmental restructuring plan and the “ungrading” of her position amounted to a demotion for which she can recover.

[ Disparate Treatment ]

Plaintiff has also proffered evidence that she was treated differently from Verlander. At the time Verlander was terminated, defendant considered relocating Verlander to another department. Id. ¶156. Plaintiff was offered the option of relocation in mid-November 1988 when her difficulties with Smith began, but defendant refused to consider that option in March 1989, when plaintiff was fired upon her return from a successful job assignment in London. Id. ¶157. Plaintiff’s severance package also raises an issue for resolution at trial. Plaintiff claims she was not given the opportunity afforded to Verlander to appeal her termination and initial severance offer to Cohen, the partner in charge. Id. ¶168. Scott claims that he told Verlander that he could appeal his termination to Cohen, because Scott had approved plaintiff’s termination of Verlander in advance, and did not want to be a judge in his own case. Id. ¶92. In response to plaintiff’s assertion that she was not told she could appeal to Cohen, defendant asserts that plaintiff never requested an appeal. Id. ¶168. However, Scott approved Smith’s termination of plaintiff in advance just as he had approved plaintiff’s termination of Verlander in advance. Thus, Scott’s failure to tell plaintiff that she could appeal to Cohen was inconsistent with his treatment of Verlander. A factfinder could reasonably conclude that Scott’s treating plaintiff differently from Verlander supports an inference of gender bias, if the proffered explanation for the difference in treatment is not credited. Plaintiff may establish that she was entitled to be advised of her right to discuss her termination with Cohen and seek a more favorable severance package.

For the reasons stated above, the court finds that summary judgment on plaintiff’s Title VII and NYHRL claims is inappropriate. The function of summary judgment is not to resolve factual disputes, but to identify them. See Spence v. Maryland Casualty Co., [61 EPD ¶42,277 ] 995 F.2d 1147, 1155-56 (2d Cir. 1993). The evidence proffered by plaintiff requires the assessment of credibility and the determination of plausibility by the triers of fact in this case. Drawing all reasonable inferences in plaintiff’s favor, the court cannot conclude that there are no genuine issues of material fact in dispute.

IV. Statute of Limitations for Title VII Claims

The court now considers defendant’s argument that plaintiff’s claim arising out of her failure to be promoted to Manager of MDT is time-barred under Title VII. Defendant argues that plaintiff may not recover for any acts of alleged gender discrimination that occurred prior to December 12, 1988, because those claims are barred by the 300 day limitations period applicable to charges filed with the EEOC. See 42 U.S.C. §2000e-5(e) . Defendant offered the job of Manager of MTD to Smith on September 20, 1988, more than 300 days before her charge was deemed filed with the EEOC. [2] For the following reasons, the court rejects this argument.

The timely filing of a charge with the EEOC is a prerequisite to bringing suit in federal court. That prerequisite may be excused, however, on equitable grounds. See Zipes v. Trans World Airlines, Inc., [28 EPD ¶32,432 ] 455 U.S. 385 (1982). Here, plaintiff relies on the “continuing violation” exception to the timely filing requirement, and argues that her failure to be named as permanent Manager of MTD was related to the violations that were timely charged, namely her alleged demotion and termination. See, e.g., Gomes v. Avco Corp., [59 EPD ¶41,544 ] 964 F.2d 1330, 1333 (2d Cir. 1992); Miller v. Int’l Telephone & Telegraph Corp., [36 EPD ¶34,996 ] 755 F.2d 20, 25 (2d Cir. 1985), cert. denied, [38 EPD ¶35,535] 474 U.S. 851 (1985). A Title VII claimant may rely upon time-barred acts of discrimination if they are linked to an act that is within the limitations period. See Selan v. Kiley, [59 EPD ¶41,664 ] 969 F.2d 560, 564 (7th Cir. 1992). Such reliance is appropriate where a plaintiff alleges that the employer has “ ‘for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy. . . . In such cases the challenged practice is evidenced by a series of discrete, allegedly discriminatory acts.’ ” Id. at 565, quoting Stewart v. CPC Int’l, Inc., [29 EPD ¶32,702 ] 679 F.2d 117, 121 (7th Cir. 1982).

When this issue arises in the context of a motion for summary judgment, the court considers whether the plaintiff “produced sufficient evidence to establish that there existed a genuine issue of fact whether the defendants’ acts were ‘related closely enough to constitute a continuing violation’ or were ‘merely discrete, isolated and completed acts which must be regarded as individual violations.’ ” Id. quoting Berry v. Board of Supervisors of L.S.U., [32 EPD ¶33,828 ] 715 F.2d 971, 981 (5th Cir. 1983). See also Wingfield v. United Technologies Corp., [49 EPD ¶38,707 ] 678 F. Supp. 973 (D. Conn. 1988).

The court finds that plaintiff has provided sufficient evidence to establish the existence of a genuine issue of fact with respect to the connection between her failure to be promoted and her eventual termination. Rather than a series of completed acts, plaintiff here alleges that her failure to be promoted to the position of Manager of MDT was part of a concerted effort by defendant to eventually terminate her because of her gender. Plaintiff argues that naming Doris Smith as Manager and supervisor of plaintiff was a move calculated to result in plaintiff’s eventual termination, an act that occurred within the limitations period. In Grich v. Textron Lycoming, the plaintiff alleged that the defendant “continually and gradually reduced his responsibilities according to a deliberate plan” to discriminate against him based on his age. See Grich v. Textron Lycoming, 822 F. Supp. 66, 69 (D.Conn. 1993). There, the plaintiff alleged a plan, which was implemented in four steps, to remove him from the defendant’s workforce because of his age. The court found that these steps, if proven, would constitute a continuing violation of the law against age discrimination. See id. Similarly, the facts alleged here appear to be closely related enough to be characterized as part of one plan, to terminate plaintiff. If plaintiff succeeds in proving that Smith was hired by defendant as an instrumentality to terminate plaintiff, plaintiff will also have proven the necessary connection between the events to establish a continuing violation of Title VII. The court, therefore, holds that the allegation of acts that reasonably can be viewed as part of the same plan to discriminate against an individual employee based on gender states a continuing violation of Title VII. [3] Thus, plaintiff’s claim of a violation of Title VII based upon her failure to be promoted is not time-barred. [4]

VI. Equal Pay Act

Defendant argues that plaintiff’s claim under the Equal Pay Act, 29 U.S.C. 206(d) , must be dismissed because she fails to point to a male counterpart who performed work that is substantially equal in terms of skill, effort and responsibility. Plaintiff asserts that her work as Acting Manager in 1988 was comparable to the work performed by Peter Mathias in his last year as Manager. In 1987, Mathias received $225,000 in total compensation, including discretionary bonuses. [5] Plaintiff’s total compensation in 1988 when she was Acting Manager was $180,944. For the following reasons, the court rejects defendant’s argument with respect to Peter Mathias. [6]

Defendant argues that because plaintiff’s position as Acting Manager was temporary, she did not have the same responsibility Mathias had when he was permanent Manager. Defendant’s reliance on the title of Acting, as opposed to permanent, Manager is unavailing. The Regulations implementing the Equal Pay Act recognize that employees assigned to a position need not be paid the higher rate paid an employee of the opposite sex if the assignment is temporary. See 29 C.F.R. §1620.26(b) (1992). However, the “failure to pay the higher rate to an employee reassigned for a period of greater than one month will raise questions as to whether the reassignment was in fact intended to be temporary.” Id. (emphasis added). Here, plaintiff worked for over eight months in the position of Acting Manager, creating a factual issue under the Regulations whether the exception for temporary assignments applies.

Defendant also argues that plaintiff’s job duties as Acting Manager differed from those performed by Mathias, because plaintiff was not responsible for a new employee performance management system that Mathias had been working on. Defendant also asserts that plaintiff was not expected to, and did not, fill the role Mathias had played with respect to certain programs that he had introduced to the firm. This may be true, but the same can be said of Smith, who was paid the exact amount that Mathias received. If plaintiff is correct in asserting that Smith’s job duties were not enlarged from those performed by plaintiff in her capacity as Acting Manager, defendant’s argument that plaintiff did not perform work that was substantially similar to that of Mathias would be subject to question. Thus, defendant is not entitled to the entry of summary judgment with respect to plaintiff’s Equal Pay Act claim based on the total compensation paid to plaintiff in 1988 as compared with the total compensation paid to Mathias.

Conclusion

For all the reasons stated above, defendant’s motion for summary judgment is denied, except to the extent indicated above. The parties are reminded that the court has set September 27, 1993 as a firm trial date. The parties are directed to prepare to try the case in four days.

[QR]So Ordered.