Kyriazi v. Western Elec. Co.

• Decision Date: 06 March 1979
• Docket Number: Civ. A. No. 475-73.
• Parties: Kyriaki Cleo KYRIAZI, Plaintiff, v. WESTERN ELECTRIC CO. et al., Defendants.
• Court: U.S. District Court — District of New Jersey

465 F. Supp. 1141

Kyriaki Cleo KYRIAZI, Plaintiff, v. WESTERN ELECTRIC CO. et al., Defendants.

Civ. A. No. 475-73.

United States District Court, D. New Jersey.

February 21, 1979.

As Amended March 6, 1979.

COPYRIGHT MATERIAL OMITTED

Vladeck, Elias, Vladeck, Zimny & Englehard by Judith P. Vladeck, New York City, for plaintiff.

Pitney, Hardin & Kipp by Edward P. Lynch, S. Joseph Fortunato, Barry A. Guryan, Claire B. Dubin, Morristown, N. J., for defendants.

OPINION

STERN, District Judge.

At the conclusion of "Stage I" of this Title VII litigation—the liability phase— this Court found that Western Electric discriminated against its female employees, applicants and former employees in the areas of hiring, promotion, participation in job training programs, layoffs, wages and opportunities for testing.¹ We now enter "Stage II", the damage phase. Stage II requires adjudication of the claims of thousands of class members.²

To assist it in this formidable task, the Court has appointed three Special Masters pursuant to Rule 53(a) of the Federal Rules of Civil Procedure. The Court now addresses some of the procedural hurdles which confront it at this stage.

1. Burden of Proof

The Supreme Court has made clear that once there has been a finding of class-wide discrimination, the burden then shifts to the employer to prove that a class member was not discriminated against; that is, a finding of discrimination creates a rebut-table presumption in favor of recovery. The Court first addressed this in Franks v. Bowman, 424 U.S. 747, 772, 96 S.Ct. 1251, 1268, 47 L.Ed.2d 444 (1976) in which it held that:

Petitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination.

More recently, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361-2, 97 S.Ct. 1843, 1868, 52 L.Ed.2d 396 (1977), the Court specifically rejected the contention that in the remedial stage of a pattern-or-practice case, the government must prove that the individual was actually the victim of discrimination:

That basic contention was rejected in the Franks case. As was true of the particular facts in Franks, and as is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking.

The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination.

As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.

(Footnote omitted; citation omitted).

Accordingly, the sole burden upon class members will be to demonstrate that they are members of the class, that is, that now or at any time since June 9, 1971, they were either employed by Western, applied for employment at Western or were terminated by Western. In practical terms, this will be reflected in the Proof of Claim forms which class members will be required to fill out. Those forms require only that the putative class member state the dates of her employment and/or application, the positions she held and/or sought.³ The Court will not require individual class members to specify the manner in which they were discriminated against. As was held in Stage I, employees remained for the most part ignorant of the fact that they were being passed over for promotion and training programs, and unsuccessful applicants may well be unaware that they were rejected on the basis of their sex. The fact is that employment decisions are rarely put in discriminatory terms, no matter how discriminatorily bottomed. Individual employees should not be put to the almost impossible task of delving into the corporate consciousness to demonstrate how an already proven policy of discrimination exactly impacted each one of them.⁴ Thus, once an individual demonstrates that she is a class member, the burden will then shift to Western to demonstrate that the individual class member was not the victim of discrimination.

2. Notice

Pursuant to Rule 23(d)(2), Federal Rules of Civil Procedure, Western is required to give notice to class members in the following manner. All class members whose addresses are known to Western will be sent a notice and Proof of Claim form together with a prepaid envelope. The remaining class members will be notified by publication in six local newspapers for two consecutive weeks in the Sunday editions and three weekday editions.⁵ All costs of notification are, of course, to be borne by Western. See Love v. Pullman, 13 FEP Cases 423 (D.Col.1976); Sledge v. J. P. Stevens & Co., 18 FEP Cases 259 (E.D.N.C. 1976); English v. Seaboard Coastline RR Co., 12 FEP Cases 90 (S.D.Ga.1975); and Meadows v. Ford Motor Co., 62 F.R.D. 98 (W.D.Ky.1973).

The Court has scanned the early returns from the newspaper notices and the mailings and has determined that it would be advisable to supplement the notice to the nearly 1,900 class members who are presently employed by Western by providing an opportunity for class counsel to communicate with them directly at the plant.⁶ Accordingly, Western will permit counsel for the class to enter the plant for the purpose of meeting with class members who are presently employed by Western. Western may accomplish this in any manner that will minimize loss of productivity and disruption of its normal activities, provided that the manner selected gives employees advance notice and a reasonable opportunity to meet with counsel. Undoubtedly, mass meetings will be required in order to minimize the number of visits which counsel will have to make. These meetings may take place before or after working hours, if Western prefers, but sufficient time must be allocated and a suitable facility must be provided. With these guidelines in mind, counsel are directed to meet and work out a schedule which will commence not later than March 12, 1979 and terminate not later than March 31, 1979, nine days before the April 9, 1979 cutoff date for the filing of claims by class members.

3. Computation of Back Pay Awards

The courts have adopted a number of approaches in connection with the computation of back pay awards.⁷ One approach, the "pro rata" formula referred to in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), and United States v. United States Steel, 520 F.2d 1043 (5th Cir. 1975), looks to the difference between the salary of the class members computed collectively and that received by employees of comparable skills and seniority, not the victims of discrimination. The class member then receives his pro rata share of that collective difference, based upon his salary differential and the number of competitors for the position. Another approach is the "test period" approach, used in Bowe v. Colgate, Palmolive Co., 489 F.2d 896 (7th Cir. 1973), in which the court awards class members the difference between the pay they receive after implementation of the Title VII decree and the pay they received while the discriminatory policies were in force. A variation of the "test period" approach was used in Stewart v. General Motors, 542 F.2d 445 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977), in which the court awarded the class members the difference between the wages of salaried white workers during a test period and that actually received by the class. Yet another approach was used in Stamps v. Detroit Edison Co., 365 F.Supp. 87, 121 (E.D.Mich.1973), rev'd on other grounds sub nom. EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), in which the court awarded class members the difference between their own actual earnings and the earnings of the skilled trade opportunity jobs from the effective date of Title VII.

The Court finds none of these approaches appropriate here. As we found in connection with Stage I, we deal with discrimination which manifests itself in a number of ways. For example, a woman might initially be hired at the lowest grade —32—while a comparable male would have been hired at grade 33. During the course of a ten-year period, the woman—perhaps unbeknownst to her—would be passed over for promotion, denied entry into job training programs and, finally, notwithstanding her seniority, would be the first to be laid off because she was in the lowest job category. She may in fact have been laid off and rehired a number of times.⁸ By contrast, the male, during the same period and having started at a higher grade, would be promoted several grades—perhaps even trained for a supervisory position—and would thus remain unscathed in times of layoffs. It is, therefore, apparent that a back pay award must take into account the fact that a male and a female entering Western with comparable skills would, over a period of time, take dramatically divergent paths.

While this approach will not yield an exact measure of damages, neither could any other approach. However, the law is clear that where one has been damaged by the wrong of another, the victim is not to be denied any recompense merely because the exact measure of damages is uncertain. See Zenith Radio Corp....