The opinion of the court was delivered by: STERN
Kyriaki Cleo Kyriazi filed this Title VII action on behalf of herself and a class of over 10,000 women on April 30, 1973, alleging a pattern of sex discrimination by Western Electric Company ("Western") at its Kearny, New Jersey facility. With the distribution in August 1981 of over $ 7 million to plaintiff class members, and with the institution of a four-year affirmative action program, the last chapter in this lengthy litigation has drawn to a close. The complexity of the case, the novelty of the later stages of the proceedings, and the significance of the settlement dictate the issuance of this opinion, which summarizes the proceedings and sets forth the stipulation of settlement and several orders of the Court.
Kyriazi, formerly employed as an engineer at the Kearny plant, alleged in her complaint that Western had discriminated against her on account of sex and had retaliated against her by terminating her employment when she filed charges of discrimination. She also alleged that Western discriminated systematically against women in ten areas: hiring, promotion transfer, layoff, discharge, tuition refund benefits, participation in the Bell Systems Savings Plan, maternity leave, participation in training programs and opportunities for testing. Finally, she alleged that five employees at Western had harassed and abused her, thus conspiring to deprive her of her civil rights in violation of 42 U.S.C. § 1985(3) and tortiously interfering with her employment, in violation of state law.
With respect to the claims of systematic discrimination against women as a class, the Court, on July 16, 1975, certified a class consisting of:
"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."
Discovery continued through mid-1977. Near the close of the discovery process, the Court held that Kyriazi was not required to continue discovery so as to isolate the individual and specific claims of each and every class member. Kyriazi v. Western Electric Co., 74 F.R.D. 468, 471 (D.N.J.1977). See Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3rd Cir.), rehearing denied, 551 F.2d 1 (1976).
The Court severed the liability and damages portion of the action, and trial before the Court on Stage I-the liability stage-was conducted between July 7, 1977 and December 1, 1977. The Court found, with respect to both the individual and class claims, "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." Kyriazi v. Western Electric Co., 461 F. Supp. 894, 898 (D.N.J.1978). The Court also found that Kyriazi individually "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." Id. The individual defendants were found liable under section 1985(3) and state law. Id. at 949-51.
On February 21, 1979, the beginning of Stage II-the remedy stage-of the proceedings, the Court directed that Western, at its expense, send notice to all class members pursuant to Fed.R.Civ.P. 23(d)(2). All class members still employed at Western or whose addresses were known to Western were sent a notice and a proof of claim form together with a prepaid envelope. Remaining class members, primarily those who were never employed by Western and former employees who had changed address, were located, if possible, by use of their Social Security numbers, in cooperation with the Social Security Administration. Notice was also published in the Sunday edition and in three weekday editions of six local newspapers for two consecutive weeks. All forms of notice made clear that a class member could not participate in Stage II of the action unless she filed a proof of claim form with the Court postmarked no later than April 9, 1979. In order to explain more fully the status of the lawsuit to class members still employed by Western, the Court directed that counsel for the plaintiff class be permitted by Western to enter the Kearny plant at least once during each shift to meet with class members and discuss the suit. The Court also directed that no class member be denied pay or other benefits for time spent attending such a meeting. Western was prohibited, of course, from retaliating against any woman based on her participation in this action.
The Court's objectives at the beginning of Stage II were, first, to expedite the appellate process by entering a final order with respect to liability which included an injunction prohibiting those practices found to be discriminatory, and, second, to establish a mechanism for adjudicating the individual remedy claims of the plaintiff class members.
Named plaintiff Kyriazi's Stage II remedies were to be included in the final order embodying judgment as to Stage I. The method for computing Kyriazi's back pay and entitlement to reinstatement were set forth in this Court's opinion of September 13, 1979, which was rendered after a hearing on the issue of her individual damages. Kyriazi v. Western Electric Co., 476 F. Supp. 335 (D.N.J.1979). Pursuant to that opinion, the parties calculated that Kyriazi would receive a back pay award and interest of $ 103,506.75, and that she would be entitled to reinstatement to a senior engineering position with all benefits and seniority as if she had been employed continuously by Western and promoted to the senior position in 1971. These remedies were set forth in an order of October 9, 1979, attached as Appendix A. The order also required five individual defendants to pay Kyriazi $ 1,500 each as punitive damages, and prohibited Western from indemnifying those defendants. See id. at 340-41. It also entered judgment on behalf of the plaintiff class as to Western's liability for classwide discrimination, and on behalf of Western with respect to certain claims of the plaintiff class which the Court rejected. Counsel fees were awarded against Western for Kyriazi's individual case and for Stage I of the class action.
In the meantime, the Court established a procedure for adjudication of the Stage II claims. The Court appointed three Special Masters pursuant to Fed.R.Civ.P. 53(a). Bernard Hellring, Esquire, was appointed to serve as the Administrative Special Master, with particular responsibility for assigning hearings among the other Special Masters. These other masters, Thomas F. Campion, Esquire, and Bruce I. Goldstein, Esquire, were responsible for conducting hearings on each claim and preparing reports and recommendations. A fourth master, Lawrence S. Horn, Esquire, was subsequently appointed to serve with Mr. Campion and Mr. Goldstein. Western was responsible for compensating the masters at rates set by the Court. Detailed guidelines for the adjudication of the claims of class members were set forth in an "Order of Reference and Guidelines for Special Masters." See Kyriazi v. Western Electric Co., 465 F. Supp. 1141 (D.N.J.1979). The Court subsequently ordered that Western compensate all those whom it still employed-class members as well as its own witnesses-for time spent testifying at Stage II hearings. Kyriazi v. Western Electric Co., 469 F. Supp. 672 (D.N.J.1979).
A portion of the Guidelines provided that class members who did not file proof of claim forms by the stated deadline would be excluded from consideration as to individual damages and other individual relief unless they showed "good cause which shall not include neglect." Kyriazi v. Western Electric Co., 465 F. Supp. at 1151, P 3. The initial hearings conducted by the masters were to consider whether "late filers" could demonstrate good cause for their delay; in other words, the initial hearings determined participation in Stage II rather than the remedy due a participant. Each master filed reports and recommendations following these hearings. Both plaintiffs and Western had an opportunity to appeal to the Court from an adverse decision by a master. Counsel for the plaintiff class represented each applicant appearing before a Special Master who desired such representation.
Once the late-filer hearings were concluded, the Special Masters began individual liability and damage hearings with respect to those class members who were "rejected applicants." Rejected applicants, that is, women who applied for employment at Western but were turned down, constituted a group of women for whom determination of damages was relatively easy. If a rejected applicant set forth a prima facie case, which merely required demonstrating that she applied for employment at Western and was turned down, and Western was unable to establish a defense set forth in the Order of Reference, see id. at 1152, P 11(a), a back pay award could be determined by computing pay from the date she should have been hired until the date when she found a job, or, with due diligence, should have found a job.
With respect to non-rejected applicants-woman actually employed at Western-the Court directed Western to computerize its personnel records so that information necessary to adjudicating these claims would be readily available to the Special Masters. Once the claim of an aggrieved employee was assigned to a Special Master, an evidentiary hearing would be conducted within sixty days. The masters would be required to file a report and recommendation not later than thirty days from the date of the hearing. Parties would then have ten days within which to file objections, which would then be heard by the Court.
A large number of hearings were conducted between late 1979 and June 1980, and 108 final judgments were entered on behalf of those prevailing class members who were rejected applicants. The awards for rejected applicants totalled $ 234,271.25. Each judgment was certified for appeal pursuant to Fed.R.Civ.P. 54(b). The claims of sixty rejected applicants had not been adjudicated by June 1980, however, and only a few of the claims of woman actually employed at Western during the actionable period had reached the hearing stage, with none having been adjudicated.
The Court ordered that notice of the settlement be mailed to all class members, including those who had not filed proof of claim forms, and that notice be published in area newspapers. See Exhibits D and E to Appendix B. Class members were required to file objections no later than July 21, 1980, and a final hearing on approval of the settlement was scheduled for July 24, 1980. Numerous objections were received, most of them from women who were excluded from receiving money from the settlement fund because they failed to file a proof of claim form.
On July 24, 1980, the Court overruled virtually all of the objections and approved the settlement. The Court ruled, however, and the parties agreed, that any woman who had filed a timely objection and could demonstrate that she had failed to file a proof of claim form for good cause, which "shall include only personal incapacity by reason of illness or hospitalization, nonreceipt of notice, or the mailing of a claim form which was not received by the Clerk," would be eligible to participate in the settlement fund. Pursuant to this provision, about one hundred women were given the equivalent of late-filer hearings before Special Masters Horn and Campion, and many were included among those eligible to receive money from the settlement fund. The Court approved the portion of the settlement which excluded from participation in the fund women who had not filed a timely claim form, and also stated that the settlement "is deemed to be in full satisfaction of any and all claims ... which plaintiff or any member of the class had ... through the effective date of execution of the Order of Settlement...." The final order of settlement was executed on October 1, 1980. See Appendix C. The parties subsequently agreed on an award of attorney's fees and disbursements of approximately $ 2 million.
The Court appointed Mr. Campion to serve as Fiscal Administrator of the settlement fund. The order of appointment, See Appendix D, set forth criteria for investment of the fund and required that the expenses for administration of the fund be paid out of the interest generated by the fund. Mr. Campion was also directed to devise a formula for distribution of the fund to eligible class members. In his capacity as administrator, Mr. Campion negotiated an agreement with the Internal Revenue Service to facilitate withholding of taxes with respect to distribution of the fund. See Appendix E. Agreements were also reached with state tax authorities. A formula for distribution, reprinted as Appendix F, took into account such factors as seniority, promotions, and education. This formula was later amended slightly to remove ambiguities with respect to the award of promotion credits.
Eleven women who were excluded from participation in the distribution for failure to file proof of claim forms without good cause appealed to the Third Circuit this Court's order overruling their objections. Distribution of the settlement fund and implementation of the affirmative action plan were stayed pending this appeal. On April 30, 1981, the Court of Appeals held that the Court's proof of claim procedure was appropriate, and approval of the settlement was affirmed. Kyriazi v. Western Electric Co., 647 F.2d 388 (3d Cir. 1981). Distribution of the settlement was again stayed pending the running of time for a petition for certiorari to the United States Supreme Court. When this time expired the fund was distributed. The Court will continue to monitor the affirmative action program.
ORDERED that plaintiff Kyriazi is to receive back pay in the amount of seventy-four thousand, nine hundred thirty-three dollars and thirty-two cents ($ 74,933.32) and interest thereon in the amount of twenty-eight thousand, five hundred seventy-three dollars and forty-three cents ($ 28,573.43), for a total of one hundred three thousand, five hundred six dollars and seventy-five cents ($ 103,506.75) from defendant Western Electric;
ORDERED that plaintiff Kyriazi is to be reinstated to the position of Senior Information Systems Staff Member at Western Electric's Kearny plant, with all attendant benefits and seniority as if she had been continuously employed by defendant Western Electric since April, 1965, and had been promoted to the position of Senior on March 1, 1971;
ORDERED that defendants Wilser, Boyd, Snyder, Armstrong and Liu each pay to plaintiff Kyriazi the sum of one thousand five hundred ($ 1,500.00) dollars as punitive damages;
ORDERED that defendant Western Electric shall not indemnify defendants Wilser, Boyd, Snyder, Armstrong or Liu in any part for payments made by the individual defendants to plaintiff Kyriazi in accordance with this order;
ORDERED that judgment be and is hereby entered on behalf of plaintiff class as to defendant Western Electric's liability for discrimination in the areas of hiring, promotion, participation in job training programs, layoffs, discharge, transfer into Kearny, and opportunities for testing;
ORDERED that judgment be and is hereby entered on behalf of defendant Western Electric with respect to the claims of plaintiff class with respect to discrimination in maternity leaves, college tuition refund benefits, participation in the Bell System's Savings Plan, and the apprenticeship training program and plant trades training program;
ORDERED that defendant Western Electric's motion to decertify the class to exclude therefrom applicants for employment never hired by Western Electric be and is hereby denied, and the Court's certification of the class consisting of "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" be and is hereby reaffirmed;
ORDERED that defendant Western Electric shall pay to counsel for plaintiff attorney's fees, expenses and costs pursuant to 42 U.S.C. § 2000e-5(k) in the amount of Six-hundred and sixty-three thousand, eight hundred and seventy dollars and ninety-eight cents dollars ($ 663,870.98), less previous payments made under prior orders of this Court in the amount of two hundred eighty thousand, eight hundred thirty-four dollars and forty-nine cents ($ 280,834.49);
ORDERED that defendant Western Electric be and is hereby enjoined from continuing its practices with respect to those aspects of its employment policies found by the Court herein to discriminate against plaintiff class;
ORDERED that the foregoing provisions of this Order be and are hereby stayed for a period of thirty (30) days from the date hereof, and thereafter pending appeal of the provisions of this Order;
ORDERED that, pursuant to F.R.Civ.P. 54(b), final judgment be and is hereby entered with respect to all claims of plaintiff Kyriazi against all defendants, there being no just reason for delay of the final resolution of Kyriazi's claims;
ORDERED that, pursuant to F.R.Civ.P. 54(b), final judgment be and is hereby entered with respect to those claims of plaintiff class as to which judgment is being entered on behalf of defendant Western Electric, there being no just reason for delay, particularly because in the event of reversal of said rulings, the Stage II mechanism for trying individual claims is presently in position.
STIPULATION OF SETTLEMENT
WHEREAS, on April 30, 1973, this action was instituted by plaintiff Kyriaki Cleo Kyriazi (hereinafter "plaintiff") against the defendant Western Electric Company, Incorporated (hereinafter "Western Electric"), alleging individually and on behalf of all persons similarly situated discrimination on the basis of sex at Western Electric's Kearny Works in New Jersey (including the Clark Shops and hereinafter collectively referred to as the "Kearny Works") in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and
WHEREAS, by Order dated July 16, 1975, the District Court certified this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure as a class action encompassing all females who were then or who at any time since June 9, 1971, have been employed by Western Electric or sought employment with Western Electric at the Kearny Works; and
WHEREAS, following a bifurcated trial (the trial commenced on July 7, 1977 and concluded in December 1977) on the issues of class liability and relief (reserving for later decision the specific relief to be awarded individual class members) and liability and damages with respect to the plaintiff, an Opinion was issued by the District Court on October 30, 1978 holding Western Electric liable for discrimination on the basis of sex with respect to the plaintiff class and with respect to the plaintiff, all as more fully set forth in its Opinion entered on October 30, 1978, Kyriazi v. Western Electric Co., 461 F. Supp. 894 (D.N.J.1978); and
WHEREAS, the District Court by Opinion and Order dated February 21, 1979, as amended March 6, 1979, adopted a procedure for the determination of the appropriate relief for all class members ("Stage II"), Kyriazi v. Western Electric Co., 465 F. Supp. 1141 (D.N.J.1979), requiring that all class members who sought to pursue their claims file a "Proof of Claim" form, certifying that they were members of the class, and answering questions concerning their claims; and
WHEREAS, the District Court appointed four Special Masters to conduct Stage II proceedings with respect to the over 2000 women who filed "Proof of Claim" forms, and as of June 6, 1980, 172 claims have been fully heard and confirmed by the District Court, and it is estimated that approximately five years may be required to complete hearings and determinations of the balance of the claims; and
WHEREAS, the District Court by Order of October 9, 1979, determined the named plaintiff's damages and the relief to which she was entitled against Western Electric, pursuant to hearings before the District Court; and
WHEREAS, the District Court by Order of October 9, 1979, also enjoined Western Electric from continuing those employment practices which the District Court had found unlawful; and
WHEREAS, both the plaintiff and the defendants have filed appeals with the United States Court of Appeals for the Third Circuit (now pending) regarding various aspects of the Order of the District Court issued on October 9, 1979, pursuant to its decision of October 30, 1978, as well as other Orders of the District Court issued prior and subsequent thereto, all such appeals being currently pending; and
WHEREAS, after extensive discussions the plaintiff and Western Electric now desire to settle and compromise this action and all individual and class claims which are asserted against Western Electric or which could have been asserted against Western Electric in this action;
NOW, THEREFORE it is hereby stipulated and agreed by and between the undersigned attorneys that all claims which are or could have been asserted in this action against Western shall be settled and compromised, subject to the approval of the District Court and according to the following terms and conditions:
1. This action is to be settled for the gross sum of seven million dollars ($ 7,000,000.00) (hereinafter referred to as the "Settlement Fund"), which sum shall be paid by Western Electric to the Fiscal Administrator of the Settlement Fund (hereinafter "Administrator") within seven (7) days of the execution by the District Court of an Order Regarding Tentative Approval of Stipulation of Settlement, a copy of which is attached hereto as Exhibit A. The Administrator shall be appointed by the District Court and such Administrator shall thereafter be responsible, in conjunction with the District Court, for the placement of the Settlement Fund monies in an interest bearing account(s) and for the subsequent allocation and distribution of the Settlement Fund. The Administrator will advise the parties of the proposed allocation and distribution and they may, if they so desire, comment or submit alternative proposals.
2. Any Administrator's fees, Special Masters' fees, attorneys' fees for counsel for the plaintiff, or any other costs or expenses arising in connection with the allocation and distribution of the Settlement Fund monies, including the costs and expenses of any proceedings incurred subsequent to the date of the receipt of the Settlement Fund in connection with the processing of any Stage II claims of class members before the Special Masters or the District Court, shall not be the responsibility of Western Electric, but shall be paid from the Settlement Fund and any interest accruing thereon. Such interest accruing from the Settlement Fund will first be used for the payment of these administration fees and expenses before any money is paid for that purpose from the Settlement Fund.
3. The monies paid into the Settlement Fund by Western Electric shall be distributed to and allocated among those class members who have filed timely Stage II proofs of claim with the Clerk of the District Court in response to the previous notices to the class (including those persons whose claims were filed late but who were found by the District Court to have shown good cause for the late filing). With respect to those persons who filed such timely proofs of claim, but whose only claim relates to Western Electric's alleged failure to grant them employment, so called "rejected applicants" (hereinafter "Applicants"), the agreement is as follows: (1) in those Applicant cases in which a hearing has been held before a Special Master and the decision of the Special Master has been issued and confirmed by the District Court prior to the date of the Order Regarding Tentative Approval of Settlement, the Applicant will receive payment from the Settlement Fund only of the amount, if any, which she has been awarded by the Special Master as confirmed by the District Court, and (2) no person shall receive any payment from the Settlement Fund as an Applicant if prior to the date of the Order Regarding Tentative Approval of Settlement her claim for monetary relief had been denied by the Special Master as confirmed by the District Court.
With respect to plaintiff Kyriazi, she will receive the money awarded to her by the District Court pursuant to the Order of October 9, 1979 ($ 74,933.32, plus interest) from the Settlement Fund.
4. No money shall be paid from the Settlement Fund to any person until such time as all terms and conditions of the Order of Settlement (attached hereto as Exhibit B) regarding the expiration of the right to appeal or the exhaustion of all appeals therefrom have been satisfied.
Priority Consideration for Hiring
5. Class members who filed timely Stage II proofs of claim and who are either (a) Applicants (other than those Applicants found not to be entitled to priority hiring by the District Court or, subsequent to the date of the Order Regarding Tentative Approval of Settlement, by the Special Masters) or (b) who were laid off by Western Electric and not rehired or, since their layoff, have not been offered reemployment at the Kearny Works, will be granted priority consideration for hiring if qualified for a job opening in accordance with Western Electric's then current employment practices and subject to Western Electric's right to hire the best qualified available candidate whether or not that candidate's name is on any priority list, all as more fully set forth in Exhibit C attached hereto. In addition, any such claimant class member who was previously laid off and who has been rehired or may be rehired as a result of this priority consideration will, upon rehire, be given credit in her term of employment for previous credited service as of the date she was last laid off by Western Electric (but shall not be given credit in term of employment from the time of that layoff to the date of rehire), all as more fully set forth in Exhibit C attached hereto.
If any class member on the priority consideration for hiring list is denied a job vacancy because Western Electric does not consider her to be the best qualified candidate, she and the coordinator of the Affirmative Action Program (Exhibit D) shall be so informed, and the class member shall be informed by the coordinator of her right to appeal such denial pursuant to the procedures of the Affirmative Action Program.
Affirmative Action Program
6. In addition to the establishment of the Settlement Fund and the priority consideration for hiring, Western Electric will also implement a special Affirmative Action Program (hereinafter referred to as the "Program") in the form annexed hereto as Exhibit D. The Program shall be effective for a period of four years from the date of entry of the Order of Settlement.
7. As soon as possible after the date of execution of this Stipulation of Settlement, the parties shall submit the Order Regarding Tentative Approval of Stipulation of Settlement to the District Court for execution and filing. At that time, the parties shall also submit to the District Court a proposed form of Order Regarding Rule 23(e) Notice (attached hereto as Exhibit E) and a proposed form of Notice for mailing (attached hereto as Exhibit F) and a proposed form of Notice for publication (attached hereto as Exhibit F-1) providing for notice to class members of the proposed settlement and advising the class members of their right to object to the proposed settlement and to present such objections at a hearing to be conducted by the District Court.
8. Following the conduct of a hearing with regard to the proposed settlement by the District Court, and if the District Court grants final approval to the settlement pursuant to Rule 23(e), the parties shall present the Order of Final Approval and for Dismissal and Remand of Appeals (attached hereto as Exhibit G) to the District Court for execution and filing.
9. Following the execution and filing of the Order of Final Approval and for Dismissal and Remand of Appeals, the parties shall file a joint motion dismissing the appeals identified on the schedule attached hereto as Exhibit H and requesting that the matters be remanded to the District Court for entry of the Order of Settlement (but preserving the right to reinstate the appeals if the Order of Settlement is not entered or if the Order of Settlement becomes void by its terms because of an appeal by class members from the final approval of settlement).
10. Following the remand of the matters on appeal as set forth in the paragraph above, the parties shall present the Order of Settlement to the District Court for execution and filing.
11. Neither the execution of this Stipulation of Settlement, nor any other agreement or order referred to herein, nor any factual finding or legal conclusion rendered by the District Court in any phase of this lawsuit, shall be construed to be, or shall be admissible in any proceeding as evidence of, an admission by Western Electric of any violation of Title VII of the Civil Rights Act of 1964 or any local, state or other federal equal employment opportunity law or executive order or regulation.
12. Upon execution of this Stipulation of Settlement, the rights of the class members shall be only as contained herein. Consistent therewith, the above described settlement is deemed to be in full satisfaction of any and all claims, monetary or otherwise including, but not limited to, all claims for damages, back pay, benefits, injunctive, declaratory or other relief, which were raised or which could have been raised against Western Electric relating to sex discrimination in employment at the Kearny Works under Title VII of the Civil Rights Act of 1964 or any local, state or other federal equal employment opportunity law or executive order or regulation, which plaintiff or any member of the class had or has from July 2, 1965 through the effective date of execution of the Order of Settlement and such settlement supercedes all prior findings of liability and orders for relief and shall also operate as an accord and satisfaction of any outstanding judgments or orders in this matter.
13. Each class member who receives a portion of the Settlement Fund will, as a condition of receiving the same, execute any acknowledgment of receipt or release as the District Court may require.
14. Following the allocation and distribution of the money in the Settlement Fund by the Administrator, counsel for the plaintiff shall provide Western Electric with such documents as are required to effectuate the satisfaction of those portions of the judgments in this matter which are satisfied by reason of this settlement and compromise.
15. Attorney's fees and costs to plaintiff's counsel for services in this litigation are not a subject of this stipulation, except for such fees and costs incurred in connection with the distribution of the Settlement Fund, and nothing contained herein affects the entitlement of plaintiff to such fees and costs as may be agreed upon by the parties or as awarded by the District Court for services rendered prior to the date hereof, subject to appeals, or the right of plaintiff to make application for fees and costs incurred for services rendered by plaintiff's counsel during the implementation of this Stipulation of Settlement.
16. In the event that for any reason the Order of Settlement is disapproved by the District Court, or approved but reversed on appeal, then at the option of either Western Electric or plaintiff this Stipulation of Settlement shall be null and void.
ORDER REGARDING TENTATIVE APPROVAL OF STIPULATION OF SETTLEMENT
This matter having been opened to the District Court on May 20, 1980 upon the joint application of Vladeck, Elias, Vladeck & Engelhard, Attorneys for Plaintiff (Judith P. Vladeck, Esq., appearing) and Pitney, Hardin & Kipp (S. Joseph Fortunato, Esq., appearing) and Joe Ramirez, Esq. and Lawrence M. Joseph, Esq., Attorneys for Defendant Western Electric Company, Incorporated (hereinafter "Western Electric"), for tentative approval of the settlement of all class claims and the individual claim of plaintiff against Western Electric; and the parties having orally advised the District Court of the basic terms of settlement on May 20, 1980, and having thereafter entered into a Stipulation of Settlement dated June 6, 1980, a copy of which is annexed hereto; and the District Court having considered the proposed terms of settlement and good cause having been shown;
IT IS on this 6th day of June, 1980:
ORDERED that the proposed settlement as memorialized in the attached Stipulation of Settlement dated June 6, 1980, is granted tentative approval by the District Court; and it is further
ORDERED that final determination of whether the proposed settlement is fair, adequate and reasonable shall be reserved by the District Court pending notice pursuant to Fed.R.Civ.P. 23(e) and an opportunity for class members to present any objections to the proposed settlement; and it is further
ORDERED that a hearing with regard to final approval of the proposed settlement be held before the undersigned in Courtroom No. 1 in the United States District Court, United States Post Office and Courthouse Building, Newark, New Jersey, 07101, at 10:00 a.m. on July 24, 1980, at which time and place any class member who has filed a written objection by mailing or delivering same to the Clerk of the District Court, United States District Court, United States Post Office and Courthouse Building, Newark, New Jersey, 07101 at least ten (10) days prior to the date of hearing shall be afforded an opportunity to be heard, either in person or through counsel, as to why the proposed settlement should not be granted final approval; and it is further
ORDERED that notice of the proposed settlement of the hearing thereon and of the right to file objections to the proposed settlement shall be given to the class members in a manner and form to be approved by the District Court; and it is further
ORDERED that any member of the class who fails to object in the manner specified above shall not be entitled to contest the approval of the proposed settlement and the Order entered thereon, and shall be deemed to have waived and shall be foreclosed from raising any objections she might have; and it is further
ORDERED that within seven (7) days of the date of entry of this Order Western Electric shall deposit with the Fiscal Administrator for the Settlement Fund appointed by the District Court (hereinafter the "Administrator") the gross sum of seven million dollars ($ 7,000,000) (hereinafter referred to as the "Settlement Fund"); and it is further
ORDERED that such Administrator shall thereafter be responsible, in conjunction with the District Court, for the placement of the Settlement Fund monies in an interest bearing account(s) and for the subsequent allocation and distribution of the Settlement Fund; and it is further
ORDERED that in the course of the allocation and distribution of the monies in the Settlement Fund, Western Electric will supply such information to the Administrator or the District Court in connection with its employees or prior employees as it has in its possession and as may be reasonably required by the Administrator or the District Court for use in and administration of the Settlement Fund; and it is further
ORDERED that Western Electric is hereby directed that, both prior to and at the time of payment of the Settlement Fund monies to the Administrator and at the time of distribution from the Settlement Fund by the Administrator or the District Court, Western Electric shall not withhold, collect, pay and/or report any federal, state and local income taxes, social security taxes, unemployment and disability taxes, or any other like sum which may be due and owing as a result of the payment of the Settlement Fund monies by Western Electric to the Administrator or the distributions from the Settlement Fund by the Administrator or the District Court, nor be responsible or liable for such withholding, collecting, paying and/or reporting; and it is further
ORDERED that in the event that final approval for the settlement is not granted by the District Court pursuant to Fed.R.Civ.P. 23(e), or if such final approval is granted but vacated or reversed on any appeal, all monies contained in the Settlement Fund and all interest accrued thereon, less any expenses for administration of the Settlement Fund, shall be returned to Western Electric within thirty (30) days of the District Court's denial of final settlement approval or the vacation or reversal of final approval on appeal; and it is further
ORDERED that all proceedings in this matter are hereby stayed effective the date of the execution of this Order, except in connection with settlement matters.
PRIORITY CONSIDERATION FOR HIRING
There shall be two lists (List "A" and List "B") containing names of individuals who shall be given priority consideration for hiring in accordance with Western Electric's then current employment practices.
b) List "B" shall be a consolidated list of the names of both
(1) Class members who were not offered employment with Western Electric and whose claims have been fully adjudicated prior to the date of this Stipulation of Settlement and who were determined by the Special Masters as confirmed by the District Court to be entitled to placement on the priority hire list, and
(2) Class members who were not offered employment with Western Electric and who have been determined by the Special Masters, subsequent to the date of this Stipulation of Settlement, to be entitled to placement on the priority hire list.
These women will be placed on the priority hire list in order of their "designated date," that is, the date they should have been hired by Western Electric (1) as determined by the Special Masters and confirmed by the District Court or (2) as determined by the Special Masters.
When, to meet the needs of the business, hiring is utilized, Western Electric shall first give priority consideration for employment to the individuals on List "A", in the order in which their names appear on that list, if they are qualified for the job opening in accordance with Western Electric's then current employment practices and subject to Western Electric's right to hire the best qualified available candidate whether or not that candidate's name is on List "A." Western Electric shall continue to give first consideration for hiring to the individuals on List "A" until all such individuals have been considered.
After all individuals on List "A" have been considered, Western Electric shall then give priority consideration for employment to the individuals on List "B", in the order in which their names appear on that list, if they are qualified for the job opening in accordance with Western Electric's then current employment practices and subject to Western Electric's right to hire the best qualified available candidate whether or not that candidate's name is on List "B." Western Electric shall continue to give first consideration to the individuals on List "B" until all such individuals have been considered. Thereafter, Western Electric's obligation as to priority consideration for hiring will terminate.
If any class member on the priority consideration for hiring list is denied a job vacancy because Western Electric does not consider her to be the best qualified candidate, she and the coordinator of the Affirmative Action Program (Exhibit D) shall be so informed, and the class member shall be informed by the coordinator of her right to appeal such denial pursuant to the procedures of the Affirmative Action Program.
An individual on List "A" who is rehired under the provisions of this Stipulation of Settlement shall, upon rehire, be given credit in term of employment for previous credited service as of the date she was last laid off by Western Electric but shall not be given credit in term of employment from the time of that layoff to the date of rehire. Nothing contained herein shall operate to preclude Western Electric from granting similar credit to any of its other employees.
An individual's name will be stricken from List "A" should such individual refuse an offer of reemployment for a job at or above the level she was at the time she was laid off. An individual's name will be stricken from List "B" should such individual become employed by or refuse an offer of employment with Western Electric.
The Coordinator and Deputy Coordinator will function with respect to Exhibit C of the Stipulation of Settlement in the same manner as they function under Exhibit D. The Company Administrator shall submit a report to the Court, Coordinator and plaintiff's counsel semi-annually for the next four (4) years, with detailed information as to its administration of Exhibit C. This report shall be subject to the same requirements of confidentiality as set forth in Article II.C. of Exhibit D to the Stipulation of Settlement.
AFFIRMATIVE ACTION PROGRAM
III GOALS FOR FILLING VACANCIES
VII STATUS OF CERTAIN JOBS
A. The terms of this Document shall be binding upon and have effect only at the Company facility known as the "Kearny Works," located in Hudson County, New Jersey and the "Clark Shop" located in Union County, New Jersey and only with respect to employees and prospective employees in the categories of jobs enumerated below:
(1) Ungraded Employees : department chiefs, section chiefs, engineers, information systems, PAE and Wage Practices, technicians (engineer associates and information systems associates).
(2) Graded Employees : salaried, craft workers, operative, service, technicians.
B. The Company shall give notice of this Affirmative Action Program to all current employees.
A. The Company shall designate one or more of its employees to act as Company Administrator under this Document.
(1) The Company Administrator shall supervise all measures set forth herein and take those steps which he/she deems appropriate for the purpose of implementing the terms of this Document.
B. (1) The Court shall, with the advice and consent of the Company and plaintiff's counsel, (a) appoint an individual (other than an employee of the Company), who shall be designated as the Coordinator and (b) appoint an individual (other than an employee of the Company), who shall be designated as the Deputy Coordinator. The Deputy Coordinator shall function in the absence of the Coordinator or as otherwise directed by the Coordinator, consistent with the terms of this Document. The Company will deliver all reports contemplated by this Document to the Coordinator.
(2) Either the Company Administrator or the Coordinator may request a meeting with the other for purposes related to compliance with the terms of this Document including, but not limited to, discussion and clarification of reports and discussion of other matters encompassed within this Document which are of concern to either party.
(3) In the event that the Coordinator has reason to believe that a provision or provisions of this Document have been violated, the following procedure will be followed:
(a) The Coordinator will give written notice to the Company Administrator of the alleged violation together with a short statement of the factual basis underlying such claim.
(b) The Company Administrator shall, within 15 days after receipt of such notice, file a written response with the Coordinator.
(c) If the Coordinator, after consideration of the Company Administrator's response, still believes a violation may have occurred, he and the Company Administrator shall, by informal discussion, attempt to resolve the alleged violation.
C. All reports, personnel records, data, material or information required by or furnished to or examined by the Coordinator because of the terms of this Document are deemed to be confidential and, with the exception noted in C.(1) and (a) below, shall not be furnished to or examined by any other person. Moreover, in the event such other person secures access to any of the above described materials or information contained therein, he shall be and is hereby similarly prohibited from disclosing to, or discussing with other persons any such confidential material. All written material of any kind is to be returned to the Company within a reasonable time but no later than upon termination of this Document. In no event shall any of the above described materials be disclosed to or discussed with anyone except for the purpose of carrying out the terms of this Document.
(1) Counsel for Plaintiff shall, upon request to the Coordinator, with notice to the Company Administrator, have access to the reports, personnel records, data, material and information furnished to the Coordinator in accordance with paragraph C. above and only for their use in connection with carrying out the terms of this Document. Counsel for plaintiff agrees that such materials are confidential, that they shall not be copied, furnished to, discussed with, examined by or otherwise disclosed to any other person except as provided herein in (a) below and further agrees to return all such material to the Company within a reasonable time but no later than upon termination of this Document.
(a) It is understood that counsel for plaintiff may find it necessary to disclose certain of this material to other persons consistent with the carrying out of the terms of this Document. In the event this does occur, counsel for plaintiff agrees that prior to such disclosure they will undertake full responsibility of informing such other person that he/she is prohibited from disclosing such information as set ...