Am. Fed. of St., Cty. & Mun. v. City of New York

• Decision Date: 27 December 1984
• Docket Number: No. 84 Civ. 4529 (DNE).,84 Civ. 4529 (DNE).
• Citation: 599 F. Supp. 916
• Parties: AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME), Chappelle, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

599 F. Supp. 916

AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME), Chappelle, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.

No. 84 Civ. 4529 (DNE).

United States District Court, S.D. New York.

December 27, 1984.

COPYRIGHT MATERIAL OMITTED

Winn Newman & Associates, Washington, D.C., Beverly Gross, General Counsel, New York City, for plaintiffs; Lisa M. Newell, Washington, D.C., and Audrey Browne, New York City, of counsel.

Frederick A.O. Schwarz, Jr., Corporation Counsel, New York City, for defendants; Elissa Hutner, New York City, of counsel.

MEMORANDUM OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiffs brought this class action, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the City of New York, the Mayor of New York and certain departments of the city government (the "city defendants"), alleging sex and race based discrimination in wages, promotion and other terms and conditions of employment. The named plaintiffs are representatives for a class of "all employees employed within the applicable limitations period by the City of New York in the classifications of Police Communications Technician (PCT) and Supervising Police Communications Technician (SPCT)." Complaint at ¶ 3.¹ The acts of discrimination alleged are that defendants: (1) maintain job classifications and assign jobs on the basis of race and sex; (2) discriminate on the basis of race and sex "by compensating PCTs and SPCTs who are predominantly female and minority less than Fire Alarm Dispatchers (FADs) and Supervisory Fire Alarm Dispatchers (SFADs) who are predominantly male and white and whose duties are substantially equal and/or require an equivalent or lesser composite of skill, effort, responsibility and working conditions ..."; (3) discriminate on the basis of race and sex in determining promotions from PCT to SPCT; and (4) discriminate on the basis of race and sex in other terms and conditions of employment. Complaint at ¶ 4(a)-(d).²

On August 1, 1984, defendants filed an answer to the complaint. The answer includes a counterclaim for contribution or indemnification against the unions. The counterclaim alleges:

In the event the City is found liable to have discriminated against plaintiffs in violation of Title VII, union plaintiffs are responsible in whole or part in that they caused or attempted to cause defendants to discriminate against plaintiffs in that it caused or attempted to cause defendants to discriminate sic in violation of 42 U.S.C. Section 2000e-2(a) and (c).

Answer at ¶ 28. The plaintiff unions have moved to dismiss the counterclaim.

DISCUSSION

Under the doctrine of contribution, one tortfeasor seeks to avoid paying more than his proportionate share of liability by joining another tortfeasor who is also partly liable for the plaintiff's loss. In Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), the Supreme Court held that an employer found liable to its employees under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, has no statutory or common law right to contribution from unions which allegedly bear partial responsibility for the statutory violations. The Court stated that an employer's right to contribution could only arise under two theories: (1) as an implied right of action under the statute; or (2) under federal common law.

Defendants do not have an implied right of action for contribution under Title VII. In Northwest Airlines, the Supreme Court examined the "language of the statute itself, the legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supercede or to supplement existing state remedies." Northwest Airlines, supra, 451 U.S. at 91, 101 S.Ct. at 1580. The Court found no manifestation of a congressional intent to create an implied right to contribution under Title VII. Accordingly, the statute does not provide the defendants herein with an implied right to contribution against the unions.

Defendants contend that the court, under its equitable powers, should fashion a common law cause of action for contribution against the unions. In Northwest Airlines, however, the Court expressly declined to "add a common law right to contribution to the statutory rights that Congress created in the Equal Pay Act and Title VII." Id. at 98, 101 S.Ct. at 1584. The Court stated that Title VII constitutes "a comprehensive legislative scheme" that includes "an integrated system for enforcement," id. at 97, 101 S.Ct. at 1584, and "the Judiciary may not, in the face of such comprehensive legislative schemes, fashion new remedies that might upset carefully considered legislative programs." Id.

Defendants contend that Northwest Airlines is distinguishable because the defendant there brought an independent action for contribution against the union. In contrast, the employer in this case has counterclaimed against the unions. Defendant refers the court to the unpublished opinion in Connecticut State Employees Ass'n CSEA v. Connecticut, Civ. Action No. H79-197 (D.Conn. November 18, 1981) (Claire, C.J.). In CSEA the court stated:

The Supreme Court's reasoning in Northwest Airlines does not support the plaintiffs' claim that defendants' counterclaim should be dismissed at this state of pretrial discovery. The teaching of Northwest Airlines does not extend to situations where the employer counterclaims in a suit establishing liability between it and the plaintiff union. The Court will not permit the union, merely by bringing the employment discrimination action on behalf of its female members to insulate itself from liability for sex discrimination.

Id. at 4.

The court does not find the reasoning of CSEA persuasive. There is no danger of the union "insulating" itself from claims of employees for sex discrimination, by bringing an employment discrimination action on behalf of the employees. By merely taking the initiative in filing suit against the employer, the union is not immune to liability either in the same action or in a separate action for its own wrongdoing.³ All the union is insulated from is a claim for contribution by the defendant employer. According to the Supreme Court in Northwest Airlines, this is exactly the legislative scheme Congress enacted. If no claim can be asserted for contribution against unions in a separate action, Northwest Airlines, supra, and no claim for contribution may be asserted when the union is a defendant in the same action, Anderson v. Local 3 IBEW, 582 F.Supp. 627, 630-32 (S.D.N.Y. 1984), then there is no basis, either implicit in the statute or under federal common law, for fashioning a different rule when the union is a plaintiff.

Defendants' counterclaim based on indemnification is also dismissed. As the court stated in Anderson, supra, 582 F.Supp. at 633, "the rationale of Northwest Airlines would equally bar claims for indemnity."

Defendants alternatively contend that they have an independent cause of action against the unions based on Section 703(c) of Title VII, which provides:

(c) ... it shall be an unlawful practice for a labor organization—

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

42 U.S.C. § 2000e-2(c)(3).

Section 706(f)(1) of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(1), provides that the "aggrieved party" may bring a civil action "against the respondent named in the charge ...," after exhausting administrative remedies. There are two prerequisites to the filing of Title VII action in federal court: the timely filing of an administrative charge of discrimination with the EEOC and the filing of a complaint in the district court within ninety days from the receipt of the right-to-sue letter. See 42 U.S.C. §§ 2000e-5(e) and (f)(1). Defendants concede that they have failed to meet both requirements.

Defendants contend that their failure to meet the jurisdictional prerequisites should be excused. They contend that the court should exercise ancillary jurisdiction over the employers' claim against the union because it arises out of the same set of circumstances as the plaintiffs' claims. See Newton v. Kroger Co., 501 F.Supp. 177, 178 (E.D.Ark.1980).

The general rule is that a party who has not been named in an EEOC charge or a right-to-sue letter may only be named as a defendant if the unnamed party had a substantial identity of interest with a party who was named as a respondent in the EEOC action, received notice of the charge and an opportunity to conciliate on that charge. Women in City Government United v. City of New York, 515 F.Supp. 295, 299 (S.D.N.Y.1981); Schick v. Bronstein, 447 F.Supp. 333, 336 (S.D.N.Y.1978). In this case, the union plaintiffs have no substantial identity of interest with the parties named in the EEOC charge, the city defendants. Moreover, the union plaintiffs were parties to the State Division proceedings only in their capacity as plaintiffs. They had no notice of the city defendants' proposed charge against them.⁴ Any conciliation efforts occurring at the State Division involve only the defendants' liability to the plaintiff employees. The unions' liability either to the employees or to the defendants herein was not at issue. The fact that the unions participated in conciliation efforts vis-a-vis the employees' claims against the city defendants is not sufficient under the statute to allow this court to exercise jurisdiction over the city defendants' claim against the unions.

Moreover, the defendants do not have standing to assert a claim under Section 703(c) of Title VII against the unions. Although, a union's role in ratifying a discriminatory practice could be enough to compel a finding of union liability, Donnell v. General Motors Corp., 576 F.2d 1292, 1300 (8th Cir.1978), that...