The opinion of the court was delivered by: WYATT
This is a motion by defendant (Carbide) for an order dismissing the action because the complaint fails to state a claim upon which relief can be granted (Fed. R. Civ. P. 12(b)(6)) or, in the alternative, for a stay of further proceedings herein for 60 days pending termination of proceedings between the parties in the New York Supreme Court.
The action is brought under the "Equal Employment Opportunities" subchapter of the Civil Rights Act of 1964 (42 U.S.C. § 2000e and following). The complaint avers in substance that plaintiff (Marina) was employed by Carbide for 22 years and always rated good to outstanding; that Marina became "Senior Secretary to the General Manager of Linde Personnel services"; that she performed many administrative functions normally done by men in the organization; that she sought promotion to a "staff-level assignment" but was refused promotion because she is a woman and at Carbide "staff-level" is only for men; that then all her administrative functions were taken away and reassigned to "staff-level" men; that because she sought promotion she was reassigned to clerical duties on a lower level than that on which she had been; and that because she refused to be "down-graded and demoted" she was fired by Carbide on July 31, 1968. The complaint asserts that Carbide engaged in unlawful employment practices by discriminating against Marina and other women and by classifying its employees because of sex, all in violation of 42 U.S.C. § 2000e-2. The principal relief sought is for a declaratory judgment, for a preliminary and a permanent injunction, and for back pay (see 42 U.S.C. § 2000e-5(g).
Jurisdiction is asserted under 42 U.S.C. § 2000e-5(f) and also under 28 U.S.C. §§ 1331, 1343, 2201 and 2202.
Affidavits were submitted and are considered; the motion may be treated as one for summary judgment. Fed. R. Civ. P. 12(b).
The following appears without dispute.
On December 26, 1968, Marina filed a complaint against Carbide with the New York Division of Human Rights (the Division). N.Y. Executive Law §§ 293, 297(1). The complaint was of an "unlawful discriminatory practice" by Carbide because of the sex of Marina. N.Y. Executive Law § 296(1)(a).
On December 30, 1968, Marina filed a written charge against Carbide with the Equal Employment Opportunity Commission (EEOC).
The Division found probable cause to believe that Carbide was engaging in an unlawful discriminatory practice. N.Y. Executive Law § 297(2).
On or about May 27, 1969, the Division apparently served a "written notice" requiring Carbide to answer the complaint and to appear at a public hearing. N.Y. Executive Law § 297(4)(a).
Thereafter, in the Division proceedings, Carbide and Marina (as "complainant") executed what was called a "stipulation of settlement" ("conciliation agreement" is the term used in the state law; N.Y. Executive Law § 297), dated August 12, 1969. This stipulation was made an order of the Commissioner (head of the Division; N.Y. Executive Law § 293(1)) on September 23, 1969.
The Division then determined that Carbide had not complied with the terms of the stipulation.
The Division filed a petition in the Appellate Division, First Department, to enforce the September 23, 1969 order of the Commissioner. N.Y. Executive Law § 298.
On April 23, 1970, the Appellate Division denied the petition and remanded the matter to the Division "for the purpose of making an appropriate record of the claimed non-compliance with findings thereon." State Div. of Human Rights ...