Moche v. City University of New York

• Decision Date: 02 January 1992
• Docket Number: No. 91-CV-1312 (JRB).,91-CV-1312 (JRB).
• Citation: 781 F. Supp. 160
• Parties: Dinah MOCHE, Plaintiff, v. CITY UNIVERSITY OF NEW YORK, Queensborough Community College, Physics Department of Queensborough Community College, Defendants.
• Court: U.S. District Court — Eastern District of New York

781 F. Supp. 160

Dinah MOCHE, Plaintiff, v. CITY UNIVERSITY OF NEW YORK, Queensborough Community College, Physics Department of Queensborough Community College, Defendants.

No. 91-CV-1312 (JRB).

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

January 2, 1992.

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Ernest Holzberg, New York City, for plaintiff.

O. Peter Sherwood, Corp. Counsel, City of New York, New York City, for defendants; Norma A. Cote, of counsel.

MEMORANDUM-DECISION AND ORDER

BARTELS, District Judge.

FACTS AND PROCEDURAL HISTORY

This motion for summary judgment brought by the defendants is a phase of a complicated employment discrimination lawsuit alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 2000e et. seq. ("Title VII"),¹ and N.Y. Executive Law § 297(9). However, the story begins in 1973 when a class action employment discrimination suit was brought in the United States District Court for the Southern District of New York against the defendants² in which the court found discrimination against the plaintiff class through the payment of salaries in violation of Title VII. Melani v. Board of Higher Education, 561 F.Supp. 769, 783 (S.D.N.Y.1983), later proceeding Melani v. Board of Higher Educ., 652 F.Supp. 43 (S.D.N.Y.1986), aff'd without op. Melani v. Board of Higher Ed., 814 F.2d 653 (2d Cir.1987). The plaintiff in the present suit, a physics and astronomy professor at QCC, was a member of the plaintiff class of female educational instructors in Melani. On September 10, 1984, a consent decree approved by the court pursuant to Fed.R.Civ.P. 23(e) settled the suit ("Melani consent decree"). Melani v. Bd. of Higher Education of City of New York, 73 Civ. 5434 (LPG) (S.D.N.Y. September 10, 1984). As a party to the Melani consent decree, the plaintiff received a damage award of $1780.35. In addition, she has a salary adjustment claim pending before the Melani Special Master.

In this case, the plaintiff claims that the defendants never complied with the terms of the Melani consent decree, thereby rendering it void. The plaintiff asserts both pre and post-Melani consent decree sex discrimination claims and seeks monetary and injunctive relief. She sets forth the following three causes of action: (1) that prior to and since September 10, 1984 (the effective date of the Melani consent decree), the defendants have committed and continue to commit discriminatory and retaliatory acts with respect to the plaintiff's terms and conditions of employment in violation of 42 U.S.C. § 1983 and Title VII; (2) that the defendants deliberately impose discriminatory work conditions and assignments upon the plaintiff, in violation of § 1983 and Title VII; and (3) that the defendants committed and continue to commit discriminatory employment practices in violation of N.Y. Executive Law § 297(9).

The defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56(c) concerning the plaintiff's salary related discrimination and Title VII claims. In addition, the plaintiff's non-salary related discrimination claims raise a host of issues concerning the subject matter jurisdiction of this Court. While these issues were not raised by the defendants, the Court pursuant to Fed.R.Civ.P. 12(h)(3) resolves them on its own motion for the reasons set forth below. See Republic of Philippines v. Marcos, 806 F.2d 344, 352 (2d Cir.1986), cert. denied New York Land Company v. Republic of Philippines, 481 U.S. 1048, 107 S.Ct. 2178, 95 L.Ed.2d 835 (1987).

DISCUSSION

Summary judgment is proper only when it appears plain from the record that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 571-73 (2d Cir.1991). The function of a court in a motion for summary judgment is to determine whether there are any genuine issues for trial while resolving all ambiguities and doubtful inferences against the moving party. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).

For the sake of clarity in comprehending the defendants' motion for summary judgment, the Court treats separately the plaintiff's salary related and non-salary related discrimination claims. Consideration of the non-salary related claims, in turn, raises several issues as follows: (i) the applicability of the Eleventh Amendment; (ii) the alleged procedural default of the plaintiff under Title VII; and (iii) the subject matter jurisdictional question whether § 1983 municipal employee discrimination claims are foreclosed after a procedural default under Title VII.

Salary Related Discrimination Claims

The main issue raised by the defendants is that the Melani consent decree has res judicata effect over the plaintiff's salary related discrimination claims. Res judicata applies when "a final, valid determination on the merits is conclusive on the parties and those in privity with them as to the matter adjudged, or which should have been litigated, in another action or proceeding involving the same cause of action." 1B Moore's Federal Practice ¶ 0.4053 at 190 (2d ed. 1991). The plaintiff responds that the Melani consent decree is not a judgment on the merits, but merely a contractual arrangement that can have no preclusive effects in subsequent lawsuits involving the same parties.

"The general rule is that a final consent decree is entitled to res judicata effect.... This is so because the entry of a consent judgment is an exercise of judicial power ... that is entitled to appropriate respect and because of the policy favoring finality of judgments." Amalgamated Sugar Co. v. NL Industries, Inc., 825 F.2d 634 (2d Cir.1987), cert. denied Rothenberg v. Amalgamated Sugar Co., 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511 (1987); Wallace Clark & Co. v. Acheson Industries, Inc., 532 F.2d 846, 848 (2d Cir.1976), cert. denied 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976). This principle applies with even greater force to class action consent decrees because Fed.R.Civ.P. 23(e) requires such suits "shall not be ... compromised without the approval of the court...." Fed.R.Civ.P. 23(e); Stella v. Kaiser, 218 F.2d 64, 65-7 (2d Cir.1954), cert. denied 350 U.S. 835, 76 S.Ct. 71, 100 L.Ed. 745 (1955); 1B Moore's Federal Practice ¶ 0.4095 at 326-27. The Melani consent decree was approved in 1984 by the district court under Fed.R.Civ.P. 23(e). There can be no question that the Melani consent decree is an adjudication having res judicata effect over related claims brought subsequently by and against parties to the original litigation.³

The only remaining question is the extent to which the Melani consent decree bars the plaintiff's lawsuit. In this regard, the plain "language of a consent decree ... defines the obligations of the parties." U.S. v. O'Rourke, 943 F.2d 180, 187 (2d Cir.1991). The plain language of the Melani consent decree waives the plaintiff class's employment discrimination claims up to and including September 10, 1984. Sections VI and VII of the Melani consent decree awarded the plaintiff class $7.5 million and enjoined the defendant from engaging in a variety of discriminatory practices. In return, the plaintiff class agreed in Section IV(B) to

"waive any and all rights to pursue, initiate, prosecute, or commence any action ... or to file any charge of employment discrimination with regard to acts of commission or omission by the defendant respecting such class members regarding position or compensation, or any other term or condition of employment prior to or as of the effective date of the Decree."

Recognizing that members of the Melani plaintiff class were not identically situated in terms of salary schedule and rank as of September 10, 1984, the Melani consent decree set up in Sections VIII, IX, X, and XVIII a system for resolution of past salary discrimination claims. Section IX(B)(1)(a) dictates that any plaintiff class member claiming salary discrimination as of the decree effective date must file an adjustment claim with the Melani Special Master. The plaintiff filed such a claim in December, 1984 and the Special Master's decision is still pending.

All salary related discrimination claims the plaintiff alleges in this lawsuit must stem from events occurring prior to the effective date of the Melani consent decree. The plaintiff was hired in 1965 and received her final promotion to full professor in 1979. She is the senior member of the Physics Department of QCC and cannot be promoted any higher than the rank of full professor. At least since 1984, the plaintiff's wages have been paid on the basis of her rank through university-wide gender-neutral salary schedules stipulated by the CUNY collective bargaining agreement with the CUNY Professional Staff Congress. Even assuming arguendo that the plaintiff was hired in 1965 at a lower salary and promoted to full professor in 1979 at a slower rate than her male colleagues, her salary related claims necessarily turn on events occurring within that time period.

Allegedly discriminatory employment practices occurring up to and including September 10, 1984 fall squarely under the binding terms and conditions of the Melani consent decree. The plaintiff's salary adjustment claim with the Melani Special Master is her exclusive remedy for her salary related claims because these must be derived from events occurring between 1965 and 1979. Summary judgment is accordingly granted to the defendants for all salary related claims brought by the plaintiff in this lawsuit.

Non-Salary Related Discrimination Claims

Summary judgment is also granted to the defendants for nonsalary related claims occurring prior to and including September 10, 1984 because of the res judicata effect of the Melani consent decree. As the Melani consent decree has no effect over plaintiff's allegations of harassment, retaliation...