The opinion of the court was delivered by: STERN
I. INTRODUCTION AND SUMMARY OF COURT'S FINDINGS
This is a class action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e Et seq. The named plaintiff, Kyriaki Cleo Kyriazi ("Kyriazi"), charges defendant Western Electric Co. ("Western") with across-the-board sex-based discrimination with respect to virtually every condition of employment at its Kearny plant. Kyriazi also alleges that she herself was the victim of sex discrimination at Western in a number of respects. The issue of liability having been severed from that of damages, the case was tried on the liability issue alone commencing July 7, 1977 and concluding on December 1, 1977.
The Court, having heard the testimony at trial and having reviewed the voluminous exhibits submitted by the parties, finds that Western systematically denied women the employment opportunities it afforded men in the areas of hiring, promotion, and participation in training programs; that it slotted women initially into the lower-paying "women's jobs" and laid them off in disproportionate numbers in times of economic stress. This was proved through statistical evidence, never rebutted by the defendant, and through other evidence of purposeful discrimination.
In addition, the Court finds that Kyriazi is an adequate representative of the class, and that, as such, she may appropriately challenge Western's employment practices. Finally, the Court, having considered Kyriazi's individual case, finds that she was underrated, underpaid, and denied promotional opportunities by Western because of her sex; that she was harassed by her male co-workers; and that she was terminated on account of her sex and in retaliation for having lodged a complaint of sex discrimination.
The Court has jurisdiction over this action under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1343(1). Timely charges of discrimination were lodged with the New Jersey Department on Civil Rights and with the EEOC, which found reasonable cause to believe there was discrimination against Kyriazi and all women employed at Western's Kearny plant. (P-161). Pendent jurisdiction exists over the tort claims against the individual defendants.
Plaintiff Kyriazi was hired by Western in 1965 as a professional in the Information Systems (computer) field at Western's New York Headquarters. In February 1966 she was transferred into the Industrial Engineering organization at Western's Kearny plant. She was promoted to the position of Industrial Engineer in May 1967 and transferred in February 1969 into the Information Systems organization at Kearny. She was terminated by Western on November 19, 1971.
Kyriazi claims that (1) Western denied her promotions and gave her lower ratings and a lower salary than she deserved on account of her sex, in violation of 42 U.S.C. § 2000e-2(a); (2) that she was terminated by Western on account of her sex, in violation of 42 U.S.C. § 2000e-2(a); (3) that she was terminated by Western in retaliation for having filed formal charges against it, in violation of 42 U.S.C. § 2000e-3(a); (4) that Western and the five individual defendants conspired to deprive her of federally-protected rights, in violation of 42 U.S.C. § 1985(3); and (5) that the five individual defendants are liable under state law for having tortiously interfered with her employment at Western.
Defendant Western, an "employer" within the meaning of 42 U.S.C. § 2000e(b), is engaged in the manufacture of telephone equipment. Western's Kearny Works Organization consists of a main facility, the Kearny plant, and a satellite location, the Clark Shops. The main facility manufactures exchange area and video pair cable, key equipment, PBX's switchboards, amplifiers for underseas cable, and transmission apparatus for the Bell System (Exhibit P-77; Introduction). The Clark Shops manufacture submarine cable repeaters for the United States Government (Exhibit P-77) and for the telephone company (Malina, 43: 5335-6) (Hobbie, Tr. 197).
The five named individual defendants are Fred Wilser, Kyriazi's supervisor during her tenure at the Information Systems department in Kearny; Ralph Boyd, who supervised a department of the Information Systems professionals during the period in which Kyriazi was physically located there; and Kyriazi's male co- workers in Information Systems: James Snyder, Robert Armstrong and Shen T. Liu.
C. Scope of Class and Class Claims
By order dated July 16, 1975, the Court certified the class to encompass:
all females who are now or at any time since June 9, 1971, have been employed by defendant Western Electric Company, or who sought employment with said Company during the pendency of this suit, at the Kearny works organization.
On behalf of this class, Kyriazi contends that women have been discriminated against in the areas of (1) Hiring, (2) Promotion, (3) Transfer, (4) Layoff, (5) Discharge, (6) Maternity Leave, (7) Tuition refund benefits, (8) Participation in the Bell Systems Savings Plan, (9) Participation in training programs, and (10) Opportunities for testing.
D. Kyriazi's EEOC Charge and its Effect on Class Membership
As a prerequisite to suit under Title VII, timely charges must be filed with both the state agency and with the EEOC. 42 U.S.C. § 2000e-5(e). Where a named plaintiff in a class action has complied with these requirements, he or she may represent a class composed of all those who could have filed charges of discrimination as of the date on which the named plaintiff filed her charge. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3rd Cir.), Cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975).
The Court, in accordance with its earlier order certifying the class, credits Kyriazi's first charge with the EEOC filed January 7, 1972, thereby allowing her to represent a class of women who had viable claims of discrimination within 210 days of that date, or June 9, 1971. For it is by now well-settled law that unsworn, unserved charges are effective on the date filed. See, e.g., Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). In balancing the possible prejudice to each side, we find that selection of the earlier date affects only the measure of defendant's damages not its liability while selection of the latter date would preclude relief to women who were deliberately denied their federally-guaranteed right to equal employment opportunities. Accordingly, the Court adheres to its order certifying the class and holds that the class consists of all women who had viable claims of discrimination as of June 9, 1971.
Western argues further that the class claims should be limited to those asserted by Kyriazi in her EEOC charge. (Def's Pr. Finding No. 25). It is clear, however, that a Title VII named plaintiff may raise not only his or her own claims, but also those "growing out of such allegations during the pendency of the case before the Commission." King v. Georgia Power Co., 295 F. Supp. 943, 947 (N.D.Ga.1968). See also, e.g., EEOC v. General Electric, 532 F.2d 359, 368-9 (4th Cir. 1976); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
We next address the question of the time period for which Western may be held liable. Western argues that it may be held liable only for those acts of discrimination which occurred within the 210 days before Kyriazi filed her charge with the EEOC, and that claims arising prior to that date are time-barred. Plaintiff argues that while class membership is governed by this date, class members may secure remedies for acts of discrimination occurring back to July 2, 1965 (the effective date of Title VII) or the date of their hire, whichever is later, because Western has engaged in a "continuing violation" of Title VII.
The "continuing violation" theory permits a Title VII plaintiff to challenge an employment practice even if all the acts of discrimination alleged did not occur within the EEOC filing period. This is so because where an employer has regularly and systematically discriminated against a class it will often be impossible to isolate specific acts of discrimination occurring within the filing period. See generally, Barbara Lindemann Schlei and Paul Grossman, Employment Discrimination Law, 884-908 (1976). This theory serves a number of different purposes; for example, it permits a plaintiff to challenge a practice without the necessity of alleging that he or she is presently affected by it, See e.g., Bartmess v. Drewrys USA Inc., 444 F.2d 1186 (7th Cir.), Cert. denied, 404 U.S. 939, 92 S. Ct. 274, 30 L. Ed. 2d 252 (1971) (female employee challenging system which forced women to retire earlier than men did not have to await her own retirement to file EEOC charge); Wetzel v. Liberty Mutual, supra (system of segregating females into certain jobs may be challenged at any time). It also permits a Title VII plaintiff to seek redress for acts of discrimination occurring Prior to the EEOC filing period, for, as the Court of Appeals for the Tenth Circuit has noted, the short EEOC filing period "looms inconsequential" in the face of a practice which regularly discriminates against a class. Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975). See also, Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y.1973), Appeal dismissed, 496 F.2d 1094 (2nd Cir. 1974) (charge timely even though no applications made within 180 day filing period).
Defendant argues that the Supreme Court's recent decision in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977) abrogates the "continuing violation" theory. We disagree.
In Evans, the plaintiff had been forced to resign in 1968 from her position as a stewardess because of her employer's Then prevailing no-marriage policy. That policy had been eliminated when the plaintiff resumed her employment in 1972. More than a year later she challenged her lessened seniority which, she contended, was the direct result of the discriminatory policy which prevailed in 1968. The Court held that since she did not make a timely charge in 1968, she could not now challenge the practice because at present she suffered no more than the present effects of past discrimination.
It is clear to this Court that Evans does not overrule the "continuing violation" theory of Title VII. For, as the Supreme Court was careful to point out in Evans, the only employment practice which presently existed was the seniority system, which, while it had an adverse impact on the plaintiff to the extent that it perpetrated the effects of Past discrimination, was itself non-discriminatory. Thus, no Present continuing violation existed:
Respondent emphasizes the fact that she has alleged a Continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present Violation exists.
Id., at 558, 97 S. Ct. at 1889 (Emphasis in original). Here, by contrast, we deal with an employment practice which Did constitute a violation of Title VII As of the time the EEOC charges were filed.
Kyriazi's claims against Western and the five individual defendants under 42 U.S.C. § 1985(3) will be governed by New Jersey's six year statute of limitations applicable to actions for breach of contract and injury to property, N.J.S.A. 2A:14-1, See, Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir., 1978), as will Kyriazi's tort claims against the five individual defendants.
III. SUMMARY OF PLAINTIFF'S PRIMA FACIE CASE
It is by now axiomatic that a Title VII plaintiff has the initial burden of offering evidence adequate to create an inference that the employer has engaged in a pattern and practice of discrimination directed at the class. In a "disparate treatment" case, the plaintiff must show if only through circumstantial evidence a discriminatory motive or intent on the part of the employer; in a "disparate impact" case, the plaintiff must show that facially neutral practices, while "fair in form" are "discriminatory in operation."
Once this initial burden is discharged, the burden then shifts to the employer to provide a non-discriminatory explanation for its practices. See, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See generally, Schlei & Grossman, Supra, at 1147-96; George Cooper, Harriet Rabb & Howard Rubin, Fair Employment Litigation, 64-130 (1975).
The Supreme Court has recently made clear that a Prima facie case may be made on statistics alone, albeit that the reliability of those statistics depends on all the surrounding facts and circumstances. See, Teamsters, supra, at 339-340.
Here we are satisfied that plaintiff has met her burden based on statistics alone. She has shown through statistical evidence, discussed more fully hereafter, (1) that women are disproportionately clustered into the lowest graded jobs at Western; (2) that women are hired initially in disproportionate numbers into the lowest grades; (3) that women are promoted in fewer numbers and with less frequency than men; (4) that women are completely foreclosed from participating in job programs which would help them ascend from the low ranks; and (5) that women were laid off in far greater numbers than men.
This is not, however, merely a "statistical" case. In addition to an overwhelming amount of highly relevant statistical evidence, itself sufficient to sustain her burden, plaintiff has brought these statistics to life with direct evidence that supervisors on every level at Western intentionally discriminated against women on a plant-wide basis. This evidence includes the use of discriminatory advertising for hire and personnel requisition forms which permitted Western's supervisors to designate their sex preference for a position. Such evidence of discriminatory purpose removes any question that the statistical disparities proved by the plaintiff arose merely as a matter of chance.
We turn first to plaintiff's statistical case.
IV. DISTRIBUTION OF MEN AND WOMEN WITHIN WESTERN'S WORKFORCE AT KEARNY
1. There were 735 employees within the EEO category denominated "Officers and Managers", which encompasses supervisory positions at Western.
Only 1.9% Of this group was female. Even within that small percentage, no women held a position above that of section chief, the lowest level of supervision. (Hobbie, 2: 230; Exhibits P-77; P-11; D-204, Tab 1974).
2. There were 545 employees within the "Professional" category, which includes such diverse occupations as Engineer and Information Systems Staff member. 93.2% Of this group was male. The female professionals who made up the remaining 6.8% Included secretaries and nurses. (Exhibits P-77; P-11; D-204, Tab 1975).
3. There were 426 employees within the "Technical" category, which includes the positions of Engineering Associate, Information Associate and lab technician. 97.7% Of this group was male. (Exhibits P-77, D-204; Hobbie, 2:234).
4. There were 1946 employees within the Office and Clerical category, 66% Of whom were women. There were 6283 employees in the Operative category "30" series, 46.6% Of whom were women, and there were 456 employees in the Operative-Laboratory Technician "600" series, 94.7% Of whom were female. Within those percentages we find women clustered primarily in the lowest grades of each category of employees: (Plaintiff's Proposed Findings of Fact, 11 a, b, c).
a) The Clerical category is divided into the "200" and the "500" series. The "200" series is graded from grade 202 to grade 212; grades within the "500" series run from grade 503 to grade 512. The distribution of men and women was as follows:
b) The "operative" category encompasses jobs which deal directly with the manufacturing process, such as assembler and drill press operator. This category is divided into the "30" series, running from grade 32 to grade 39, and the "600" series (covering laboratory technicians in the Clark Shops) which runs from grade 611 to grade 691. The distribution of men and women within these grades was as follows:
c) In addition, plaintiff's proofs suggest that so-called "female jobs" are graded more strictly than so-called "male jobs":
It is Western's policy to promote from within. Thus, the bulk of Western's hiring is done at the lowest levels, while higher-graded positions are filled almost exclusively from Western's own workforce. (Vines, 11: 1100-11; Hobbie, 2: 340-1, 44: 5368). Nevertheless, Western argues that plaintiff has failed to delineate the relevant labor pool, both for purposes of hiring and promotion. It is clear, however, given Western's promote-from-within policy, that the relevant labor pool for purposes of promotion is Western's own workforce. See, Cooper, Rabb & Rubin, supra, at 84-5:
(There) are situations in which the employer's own conduct can be said to have defined the labor pool. For example, in choosing persons for higher level jobs many employers follow a practice of promoting from within, and the pool of persons in entry level jobs is the pool for promotion . . . (W)here there are substantial percentages (of minorities) in the entry level pool and many fewer at upper levels, there is a statistical disparity.
Moreover, since the entry level positions at Western require virtually no qualifications, and since it is plaintiff's claim that women are initially hired into lower grades than men, it is clear that the relevant labor pool for purposes of hiring are the employees whom Western actually hired. Cf., Wetzel v. Liberty Mutual, supra, (comparing sex composition of "claims adjusters" and "claims representatives" which have similar requirements.)
We turn now to plaintiff's statistics on Western's hiring practices.
Grade 32 and 33 jobs have no requirements of skill, education or experience.
(Exhibit P-15). Nevertheless, during the period from 1967-1976, of a total of 1,664 men and 2,103 women hired for grade 32 or 33 positions, 97.5% Of the women were hired at grade 32 while only 47% Of the men were hired at grade 32. (Exhibit P-14). In operative jobs requiring no prior experience, virtually all the women were hired into grade 32, while in many of the job categories, grade 33 hires were exclusively men:
55.7% Were hired at Grade 32
27.0% Were hired at Grades 202 or 203
6.7% Were hired at Grade A01 (Newark Shop Trainee)
2.1% Were hired at Grade 503
(Exhibit P-45). In sharp contrast, Only 27.5% Of the men hired by Western during the same time period were hired into the three lowest grades,
17.3% Were hired at Grade 32
10.2% Were hired at Grades 202 or 203
This sex-segregation of jobs is dramatically summed up by the following statistic: For the period 1967-1976, there were 141 jobs at Western into which only males were hired and 47 jobs into which only females were hired. (Exhibits P-16, P-46).
Finally although Western rarely fills its higher-graded positions through hire, when it does so, it awards them almost exclusively to men:
As noted earlier, employees hired into the lowest entry jobs can advance by promotion or upgrade to the highest level jobs at Western; that is Western's policy. Thus, an employee hired as a grade 32 operative can progress not only to the highest operative grade, but also to a position in management, or in the professional, technical or craft levels. Indeed, the Court was struck by the fact that many of Western's employees who testified at trial had themselves been promoted from shop or clerical grades to professional or management levels. (Bridges, 16: 1635-9; Kubicki, 15: 1530-33; Marca, 27: 3317-18; Day, 46: 5617; Murath, 16: 1715).
We begin with a labor pool which, as we have already held, is composed of Western's own workforce. During the relevant period between 33 and 39% Of this pool was female. However, as plaintiff's statistics demonstrate, that portion of the workforce remained primarily in the lowest positions within each job category and department, while promotional opportunities at each step of the ladder, from the lowest rungs to the steps within supervision itself, were afforded almost exclusively to the favored 61 to 67% Of the workforce population.
Thus, for example, within the Officials and Managers category, which encompasses Western's supervisory personnel, no woman has ever been promoted above the lowest level, that of section chief. Indeed, no woman has ever held a position above that level, whether by promotion or otherwise. Men have held such positions in large numbers: between 96 and 220 in the position of department chief, the second lowest position; between 36 and 85 in the three highest supervisory positions of assistant manager, director and general manager. (Exhibits D-204, 1967-76).
To the extent that women have been promoted to the position of section chief, this has been done in small numbers. Thus, during the 1967-76 period, the number of male as compared to female section chiefs was as follows:
Moreover, the evidence demonstrates that even when women were permitted to hold the position of section chief, they were given responsibility over stereotypically "female work" and almost exclusively over female populations. (See, e.g., Yesko, 43: 5312; Smith, 43: 5296-7).
It is not surprising that women have been virtually excluded from supervisory positions. It is the incumbents of such positions who do the selection, and they are instructed to look for candidates who "did a good job" who could "handle people and handle new situations" and who "did not require a lot of instruction." (Vines, 14: 1396). The use of such vague criteria by supervisors who, as we shall discuss Infra, almost invariably expressed a personal preference for men in completing their personnel requisition forms, again breathes life into plaintiff's statistics and demonstrates the discriminatory manner in which these criteria were applied.
Similarly, within the Operative, Service Worker and Graded Craft categories, as was shown above, women are clustered within the lowest grades. Despite the large number of women within the promotion pool, an examination of actual promotions during the 1973-6 period reveals that few women were promoted to grades 34 or above and that No women were promoted to grade 37 or above:
The same pattern exists within the Clerical category. As of January 30, 1975, in both the "200" and "500" series, women at each grade had between two and ten years greater seniority than men. (Exhibits P-27, P-28).
The same is true within the remaining job categories at Western. For example, between 1972 and 1975, within the Technical category, 5 males were promoted to the position of Information Associate; no women were promoted to this position. During this same period, 14 males and only 1 female were promoted to the position of Engineering Associate. (Exhibit P-74). During these same years, within the Professional category there were 27 promotions within the ANSE (Administrative Non-Supervisor Employee) position. Only 14.8% Of these promotions went to women. It was not until 1977 that a female was promoted to an ANSE-3 job (Exhibit D-204) and, to date, no woman has held an ANSE-4 job, whether by hire, promotion or transfer. (Exhibits D-204; P-74). Moreover, those women within the ANSE category have been clustered into ANSE-1 positions from which no promotion is possible, in jobs such as Pioneer Representative, Dietician. (Exhibits D-204; P-91(a)). Similarly, during this same period, 5 males and no females were promoted to Senior Information Systems Staff member; 22 males and 7 females were promoted to Information Systems Staff member. (Exhibit P-74).
VII. PARTICIPATION IN TRAINING PROGRAMS AT WESTERN
Training programs have a great impact at Western. Having heard the testimony of nearly two score of Western's former and present supervisors, and having studied their employment histories, the Court was struck by the fact that nearly all of them rose from what are generally considered "blue collar" jobs to important supervisory positions in fields unrelated to those into which they were first hired.
Western has operated two programs to train individuals for jobs in supervision: the Shop Staff Training Program and a program which hires staff trainees.
The Shop Staff Training Program trains individuals with shop backgrounds for positions as section chiefs. (Vines, 13: 1372; 15: 1492; Exhibit D-211). During the years 1964, 1965, 1966, 1970, 1973 and 1975, only 4 females participated in this program as compared to 64 males. (Exhibit P-30). It was not until 1970 that a female participated in this program at all. Although the pool from which these trainees are drawn is the operative classifications, females within this pool were largely ignored even after 1970:
The second program which trains individuals to become section chiefs draws from new employees hired into the classification denominated ANSE-I Staff Trainee. (Vines, 14: 1400; 15: 1492; Exhibits P-91(a); P-18). During the period from 1967 through 1976, no female was ever hired into this classification while 58 males were hired. (Vines, 14: 1400; Exhibit P-74). Western has failed to explain this disparity.
Western also operates a training program for technical-professional employees at its Corporate Education Center in Princeton. (Kubicki, 15: 1566). Female professionals who were selected to participate in this program were encouraged to take courses in such non-technical areas as "Creative Thinking", which could not lead to any substantial career advancement. (Exhibit D-211).
The Kearny workforce has been declining over the past ten years. In 1968, there were 14,502 employees; in 1970, there were 13,000 employees; in 1976, there were 8,000 employees and by May, 1977, Western's workforce was reduced to 7,133 employees. (Exhibit D-204). Of the approximately 5,284 employees whom Western laid off between 1970 and 1976, 63% Were women while only 37% Were male. (Vines, 13: 1349-50, 1553; Exhibit P-17). An examination of the procedures governing layoffs sheds light on this disparity.
The collective bargaining agreement in effect prior to August, 1974 ("the 1971 Agreement") provided, in essence, that individuals would be laid off by occupation and grade, in inverse order of seniority. Thus, under this system, the line supervisor would declare a surplus, and the surplus would then be pegged to an occupation, grade level and department chief's organization. (Vines, 15: 1518; Grider, 54: 5542-3). The individual with the least seniority within that occupation, grade level and department chief's organization was the one laid off. However, management retained complete discretion Not to lay an individual off. (Vines, 14: 1424-5).
If management chose to retain a surplus employee, they had the option to either transfer him laterally if there was a vacancy within his grade level, or, if that proved unsuccessful, to "bump" him down. (Grider, 45: 5513-5).
The "bumping" process worked essentially as follows. An employee may bump down only within his own occupation, but, even then, he may not bump an employee with greater seniority. Thus, for example, if a surplus were declared at the level of grade 34 benchman, the individual within that grade with the least seniority would either be laid off, or if management so chose, he would "bump" a grade 33 benchman with less seniority.
While seniority was a factor in the "bumping down" process, there was no such thing as "bumping up". (Vines, 15: 1515). Thus, if a surplus were declared at grade 32, a grade 32 worker with twenty years seniority could be laid off even if there were a grade 33 worker within that occupation with only two years seniority.
Effective August 1974, Western entered into a new collective bargaining agreement with Local 1470, covering operatives, service workers, "200" clericals and crafts.
Under that agreement, employees in the lowest grades (32, 202 and entry levels 33 or 203) were to be laid off Regardless of where the surplus lay and Before employees in the next highest grade could be laid off. Thus, that agreement, in effect, provided for the opposite of L-I-F-O
in that a class of employees had to be cleared out, regardless of seniority, before employees in the next highest grade could be laid off. (Grider, 45: 5516). Only then would a surplus be declared, and the process of "bumping" would begin. At the time that agreement was negotiated, 90% Of all grade 32 workers were female; 80% In the grade 202-203 category were female. (Exhibits P-77; D-204).
Plaintiff's statistics demonstrate that, under both collective bargaining agreements, women were laid off in disproportionate numbers, seniority notwithstanding, and that they were "bumped" by men. For example, Exhibit D-204 demonstrates that within five different grade 32 occupations, the numbers of women relative to the number of men changed drastically between 1970 and 1977. While in 1970 there were 90 female (and no male) grade 32 adjusters, by 1977, there were 51 females and 33 males within this grade and occupation. Similarly, in 1970 there were 648 female grade 32 benchhands; in 1977, there were only 275 females within this grade and occupation, while within this same period the number of men had increased from 66 to 214:
By overwhelming statistical evidence, plaintiff has established that women at Western earn less than men. This result is not surprising; indeed any other would be, given Western's policies which slot women initially into lower grades, exclude them totally from certain kinds of work, overlook them for advanced training and promotion, and lay them off in times of business adversity. All that being so, however, the Court finds that at this time it is virtually impossible to fix a monetary value on either what all the women employees in the class have lost, or what any one of them exclusive of the plaintiff herself may have lost as a result of Western's discriminatory employment practices. The Court, at least at this stage, is simply not prepared to accept or adopt the regression analysis of plaintiff's expert, Dr. John Ullman. The Court found Dr. Ullman's testimony unhelpful in determining this issue, in large part because his criteria and their valuations were quite arbitrary and subjective, and, frankly, in larger part because his testimony was simply not comprehensible to the Court. There will have to be a second stage in this case, at which time we will determine the amount of damages the class, or any member of it, has sustained. It is sufficient for now to find that wages have been lost by women as a result of sex discrimination by Western and to reserve for later the determination of just how much.
X. OTHER EVIDENCE OF DISCRIMINATION AT WESTERN
Were this merely a case based on statistics, we would already be satisfied that the plaintiff has discharged her burden; indeed, under Teamsters, supra, a statistical showing such as this would compel that result. However, we have before us the rare case in which the plaintiff, in addition to the circumstantial evidence of her statistical case, has produced direct evidence of discriminatory intent. Plaintiff here has done more than provide the Court with cold statistics; she has exposed the very attitudes which produced those statistics in the first place; attitudes held by individuals in key positions at Western, which regard certain jobs as suitable for men only, and others inevitably the lowest paying as suitable for women only.
We turn first to the "Requisition for Personnel" forms.
The history of the "Requisition for Personnel" forms their alteration by employees of the defendant and their eventual discovery by the plaintiff was the subject of an earlier opinion by this Court:
Plaintiff's counsel, on March 31, 1976, while conducting discovery on the Western premises, came upon certain documents Requisitions for Personnel the existence of which had theretofore been unknown to plaintiff. These Requisitions were forms sent by a company supervisor to the Western Personnel Office when a supervisor had a position to fill within his department. Only three such Requisition forms were found, each stapled to Placement Lists which had but recently been made available to plaintiff through discovery. Because there were hundreds of Placement Lists, all showing staple markings, plaintiff's suspicions were aroused. She wanted to know the whereabouts of the remainder of the Requisition Forms.
The answer to this question seemed critical because The Requisition forms contained blanks where a supervisor, by making an X mark in the appropriate space, could indicate whether he preferred a male to fill the slot, or a female, or whether he had no sex preference.
At a conference scheduled before the United States Magistrate later that week, plaintiff's counsel, Ms. Vladeck, expressed concern about what she considered to be tampering with the evidence, that is, the detachment of the requisition forms from the placement lists. Mr. Lynch, counsel for Western, and Ms. Vladeck attempted to work the matter out Inter sese, and on April 8th, Western Electric turned over to plaintiff some two thousand requisition forms. Upon examination of these forms, Ms. Vladeck's suspicions were further excited. It appeared that the forms had been altered to obscure the fact that supervisors using the forms had indicated sex preferences, and to obscure the particular sex preference which the supervisor had indicated. Unlike the three forms discovered on March 31st, many of the forms had X marks, in different colored inks, in all three sex preference blanks M, F, and M or F.
Plaintiff proceeded with her investigation and presented an Order to Show Cause why Western Electric should not be punished for contempt. She maintained that she could prove that the Requisition Forms had been altered between the time they had been requested and the time they had been turned over. A return date was set for June 17th.
Two days before the return date, counsel for Western Electric requested an opportunity to appear before the Court. He conceded that the Requisition Forms had been recently altered. Furthermore, he conceded that Western Electric employees may have committed perjury in deposition testimony concerning the forms.
Kyriazi v. Western Electric, 74 F.R.D. 468, 469-70, n.2 (1977).
At trial it developed that Western's employees not only "may have committed perjury in deposition testimony concerning the forms", as conceded by Western's counsel, but that they actually did. Not only did they give such false testimony under oath, but, as they finally admitted at trial, they altered the Requisition for Personnel forms to conceal the fact that Western's supervisors had been expressing a sex preference for men in the hire and promotion of employees.
A Requisition for Personnel form was a form filled out initially by a Western supervisor, typically a section chief, when a job vacancy occurred in his organization. The form described the job opening, and, in a separate printed box, enabled the supervisor to check "M", "F", or "M or F", depending on whether he wanted the vacancy filled by a male or a female.
The Requisition forms were endorsed by three levels of supervisory personnel. Thus, after the section chief filled in the necessary information Including the sex preference the form was forwarded to the department chief for endorsement and then to yet a third level of supervision, generally the assistant manager, for his endorsement.
It is apparent, therefore, and the Court so finds, that employees at every level of operating management knew that these forms were routinely used throughout the company.
In a further attempt to downplay the significance of the sex designation forms, and their use even three years after this lawsuit was commenced, Western claims that the sex preferences were filled in by the Secretaries of the section chiefs rather than by the section chiefs themselves. (Tr. 2094, 2098).
However, even the author of that theory, Mr. Norman J. Hobbie, who was the Assistant Manager for Western, and for a time the corporate official in charge of Equal Employment Opportunity at Western, conceded that this theory made little sense:
Q. Why did you want them there?
A. I wanted to hear from them because of my mind I recognized the use of old forms was certainly not something that was good so far as this particular case; that I knew it would be used against us in some way.
A. Because it showed that the company showed preference for a particular sex.
Q. Or at least somebody in the company?
A. That somebody in the company
Q. Showed that your line supervisors actually did care whether they were getting males or females?
A. That could be an assumption. My own feeling is that they ignored that area of the form.
Q. Who filled out the form?
A. I must have filled one or two out in the time that I was at Kearny. And I can only evidently say I don't recall ever seeing a box that said, "Male", "Female," or anything. I just never looked at it.
Q. So the forms to the extent they had been filled out by line supervisors did indicate that those line supervisors did have a preference, didn't it?
A. They or their secretaries, you know.
Q. They had to sign them.
A. I see, your point, that, yes, you sign a piece of paper.
Q. Then it had to go up to the Department Chief for his countersignature; isn't that right?
A. I think it goes through three levels. I'm not sure.
Q. They all have to sign it?
Q. Is that why you were concerned that it might be used against the company?
A. I was concerned because I felt it was something that was damaging.
We catalogue other examples drawn from the abundant evidence of the discriminatory attitudes which prevailed at Western: ads for stenographers, typists, and keypunch operators describing women as "the other half of the team" (Exhibit P-53); the male only help-wanted newspaper ads used by Western until at least mid-1970 for all jobs except clericals (Anderson, 6: 425; Exhibits P-52, P-53); employment test results placed on different colored cards for men and women (blue for women, white for men); "word-of-mouth" hiring which, as plaintiff's statistics demonstrate, worked to the substantial disadvantage of women.
This direct evidence of discriminatory intent and purpose sheds light upon and validates the inference which flows inevitably from plaintiff's statistics.
XI. WESTERN'S DEFENSES TO PLAINTIFF'S PRIMA FACIE CASE
As noted earlier, a Title VII plaintiff may discharge her initial burden by creating, on statistics alone if need be, an inference that the employer has systematically discriminated against the class in its employment practices. Here, the impressive statistical showing made by the plaintiff, bolstered with evidence showing the discriminatory intent of Western's supervisors, clearly discharges her burden with respect to Western's practices in the areas of hiring, promotion, participation in job training programs, layoffs and, as a result of the foregoing practices, wages as well. The burden now shifts to Western to furnish an explanation for those statistical imbalances.
We turn now to Western's defenses.
A. Western's Defense to Discriminatory Hiring of Women into Grade 32
Western does not dispute plaintiff's statistical showing (See V, Supra ) that women are hired disproportionately into grade 32, while men are hired into grade 33. Rather, it claims that it did women a favor by hiring them into this lower grade. (Def's Pr. Findings 570-575). It attempts to support this by arguing that since grade 32 Piece Workers the category into which more women are hired than any other earn more than grade 33 Day Workers who are primarily men women in grade 32 earn more than men hired at grade 33.
The basis of this contention is defendant's Exhibit 183-d admitted over the strenuous objection of the plaintiff and notwithstanding the Court's own expressed doubts as to the exhibit's reliability based on Western's destruction of the underlying data.
Having heard the testimony of the exhibit's author, Mr. Ammermann, the Court remains dissatisfied with that testimony and thus rejects D-183-d as unreliable. Moreover, to accept defendant's contention would be to find that the disproportionate grouping of women in grade 32 and men in grade 33 represents a favoring of the women over the men. In the context of the evidence of this case, such a suggestion is, to say the least, implausible. Nor did Western offer any evidence suggesting that women were offered the grade 33 positions, or that they turned such positions down in favor of the more "desirable" grade 32 jobs. In any event, it is clear to the Court, and the Court so finds, that in terms of promotion and layoffs, these women were severely disadvantaged by having been placed in the lower grades. Accordingly, the Court rejects this defense and finds that Western discriminated against women by hiring them into grade 32.
Western seeking to rebut plaintiff's statistical evidence regarding promotions, claims that women were not promoted because they were simply not interested in promotion.
The record demonstrates, however, that when an employee was considered for promotion it was his supervisor who initially determined whether the individual was interested in promotion. (Hayeck, 42: 5206; Matthews, 43: 5252; Rotheramel, 43: 5273). If the supervisor represented that the individual was not interested, that individual was not interviewed and, indeed, never learned that he was a candidate for promotion. (Vines, 12: 1232). Further, the evidence demonstrates that women were never afforded the opportunity to express their alleged lack of interest, because they were rarely even considered for promotion:
The Court finds that Western itself became alarmed at these initial recommendations, and particularly at the "not interested in promotion" label utilized by Western to justify either the disqualification of a woman or the ultimate award of the promotion to a male. Thus, on February 22, 1974, P-115 was circulated to all managers:
MEMORANDUM TO ALL MANAGERS:
This will supplement Mr. Hobbie's memorandum of February 6, 1974.
We have an additional Equal Opportunity requirement that compels us to document all cases where a female or minority group member is disqualified for upgrading or reclassification.
We recognize the burden that this will place on your organization but our Headquarters has reached this agreement with the federal agencies and we have no choice but to follow their direction.
The documentation should contain the specific reason why the female or minority group member was disqualified.
If we receive multiple disqualifications, that appear justified, on an individual recommended for a particular grade and occupation, we will discuss the recommendation with the originating line organization. However, if the employee appears on a placement list due to being in a group selected as a feeder and the group is consistently disqualified, we will review the selection of feeder occupations with the line organization. By taking such measures, we would hope to avoid unnecessary correspondence on your part.
The Personnel Department has been notified ...