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LEISNER v. NEW YORK TEL. CO.

March 1, 1973

Susan Wagner Leisner et al., Plaintiffs,
v.
New York Telephone Company, Defendant


Motley, District Judge


The opinion of the court was delivered by: MOTLEY

MOTLEY, DISTRICT JUDGE:

Plaintiffs are all women employed in management level positions with the defendant New York Telephone Company. They have brought this class action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. for injunctive relief and damages. They alleged that defendant discriminates against women employed by the New York Telephone Company in management level positions in its traffic departments throughout the state in violation of the statute. Defendant's motion to dismiss the complaint on numerous grounds was denied on November 27, 1972. *fn1" Plaintiffs' motions for a preliminary injunction and for class action certification are granted for the reasons stated below.

 The named plaintiffs are or have been employed in the Southern Manhattan Dial Division. All were hired during the period September, 1970 to September, 1971. They seek to bring this action on behalf of themselves and all women employed in management level positions in the defendant's traffic departments throughout New York State.

 The New York Telephone Company is organized into five geographical territories. Within each territory there are separate functional units, including a traffic department, which provides operator services and administers the equipment by which telephone calls are routed. Within the Traffic Department of the Manhattan territory there are several divisions, including the Southern Manhattan Dial Division in which the named plaintiffs work or have worked. Management employees within the traffic departments are placed in various salary grade levels, ranging from Grade 5, the lowest significant management level, to Salary Grade 23. Approximately 38% of the management level employees within the Company are women. This figure reflects the percentage of women in the relevant labor force and has remained unchanged for the past six years. However, within the traffic departments located in the New York Standard Metropolitan Statistical Area, as of December, 1971, the distribution of men and women in management level positions at various salary grade levels was as follows: Level Maximum Salary Men Women Total % Women 5 $ 11,400 5 386 391 98.7 6 12,300 4 185 189 97.9 7 13,300 21 787 808 97.4 10 16,800 174 292 466 62.7 21, 22, 23 20,700 220 57 277 20.6

 According to the Company's own projections, little significant change in the percentage of women at the higher management levels is to be anticipated in the Company as a whole as distinguished from the traffic departments. In September, 1972, 9.1% of the second-level management employees throughout the Company (Grades 21-23) were women. Defendant estimates that by the end of 1976, 14.5% of its second-level management employees will be women. (Defendant's Exhibit J.)

 Within specific job titles, there were more significant disparities in the numbers of men and women. For instance, 73.7% of the women in the higher management levels, Grades 21-23, were classified as traffic supervisors, as compared with only 41.8% of the men. Moreover, defendant classified only approximately 7% of the women traffic supervisors as "officials and managers," persons ". . . who set broad policies, exercise overall responsibility for execution of these policies, and direct individual departments or special phases of a firm's operations." The remaining 93% are classified as "professionals," persons whose occupations require ". . . either college graduation or experience of such kind and amount as to provide a comparable background." *fn2" By contrast, approximately 27% of the male traffic supervisors are classified as "officials and managers."

 Within Level 10, which has several job titles as of December, 1971, 52.7% of the women were chief operators while there was only one male in that position. Ninety-nine percent of the female chief operators were classified by the Company as officials and managers. While chief operators do not make policy decisions, they are the source of recommendations as to changes in operating practices, make payroll decisions and schedule their work force.

 By contrast, 48.3% of the males within Level 10 were classified as dial service supervisors. Each dial service supervisor supervises approximately 20 persons and has overall responsibility for the central offices. Dial service supervisors must determine whether equipment in a central office is functioning properly. If they note a problem, they have the responsibility to secure corrective action, often from other departments of the Company. As of September 30, 1972, the average length of service within the Company of dial service supervisors was 8.4 years for males and 23.3 years for females.

 In Salary Grade 7, 89.6% of the women were group chief operators, most of whom were classified by the Company as "officials and managers." The group chief operators work under the supervision of the chief operators and are responsible for planning, training and scheduling the work of groups of telephone operators. According to a bulletin once used by the Company to recruit college women, "[this] is the most popular position among college girls entering New York Telephone." (Plaintiff's Exhibit 6.)

 Of the men situated in Level 7, 76.2% were assistant dial service supervisors all "officials and managers."

 Assistant dial service supervisors, who work under the dial service supervisors, supervise approximately eight people, and are responsible for spotting indications of deterioration in the offices to which they are assigned. The average length of service within the Company for assistant dial service supervisors was 1.3 years for males and 15.4 years for females as of September 30, 1972.

 The Company operates several training and career development programs designed to develop the talents of persons the Company believes to have potential for management level positions. One of the programs, the Nyack Training School, is a five or six week program designed to give dial service supervisors additional technical expertise. Between June 1, 1970 and June 1, 1972, approximately 18% of those who attended throughout the state were women. *fn3"

 The Management Development Program is designed to permit employees to demonstrate that they have the aptitude for high management level positions. The program affords its participants limited amounts of formal training and participants are expected to demonstrate that they can perform effectively at the higher levels. If, after a period of a year to 15 months, a participant is not adjudged to have the characteristics the Company deems necessary for further promotions, he or she is discharged. From 1965 through 1970, there were only two or three women in the Management Development Program. Between June 1, 1970 and June 1, 1972, approximately 6% of the participants were women (or 20 out of a total of 339). As Dominick Carbone, general personnel supervisor for defendant, conceded, ". . . the program is predominantly male."

 Defendant discontinued the Management Development Program in its Manhattan Traffic Department in March, 1972 and replaced it with a Career Development Program. The Company purportedly terminated the Management Development Program in Manhattan because of its failure to attract significant numbers of women and because it wanted to include management people other than those ". . . who had exhibited supervisory interests and had significant technical experience. . . ." The program includes counseling, staff tours, training sessions and testing. About 50% of the participants are women.

 Mr. Carbone testified that, in placing persons in management level positions within the Manhattan Traffic Department, employment interviewers consider whether the person is interested in numerical or analytical work, whether the person has proven successful in previous endeavors and, for positions involving significant supervisory responsibilities, whether the applicant has had supervisory experience. The Company considers whether a person has a technical degree in determining his or her interest in and aptitude for technical work but does not consider a technical degree to be a prerequisite for such work. *fn4" The Company also considers results of various objective tests designed to ascertain leadership abilities and performance evaluations completed by an employee's immediate supervisor. In short, according to Carbone, ". . . we stand back and look at the individual as a total individual, and, 'Is this person going to be successful in our business?' becomes our final criterion after we have all of these factors reviewed."

 With respect to the Management Development Program, Carbone testified that applicants ". . . first of all, have to have an express interest in supervisory line management. These individuals have objectively demonstrated skills of leadership. They have come to us with proven 'track' records in the area of supervision or leadership. These individuals have high academic achievements." Carbone noted that the Company has had considerable success in recruiting Management Development Program candidates from the military because "[the] military . . . [tends] to give their officers rather immediate roles of responsibility." He testified further that ordinarily teaching is not considered to be significant supervisory experience.

 It appears that Company interviewers have considerable discretion in determining whether applicants have the potential for the Management Development Program. On the basis of their training, they must evaluate ". . . how significant this leadership or lack of leadership is."

 Two of the named plaintiffs in this action, Susan Wagner Leisner and Jane Booth, were hired into the Company as assistant dial service supervisors at Grade Level 7. Mrs. Leisner was hired on March 22, 1971. Her first assignment was teaching clerical employees and some management level employees at the management dial training school. During the six months she taught at the school, all but one of her students were female as were all of the other instructors. [Mrs. Leisner was graduated from the University of Pennsylvania in 1968. While there, she was an alumni regional scholar for four years and a member of an academic honor society. She subsequently was a teacher in the Philadelphia school system and worked in the business department of a magazine company for approximately 18 months in New York. At the time she joined the telephone company she had completed four semesters at New York University in postgraduate work toward a Masters degree in business administration.]

 On September 9, 1971, Mrs. Leisner filed a charge of sex discrimination with the Equal Employment Opportunity Commission alleging that the Company discriminated against women with regard to hiring and other conditions of employment. The charge was deferred to the New York State Division of Human Rights pursuant to 42 U.S.C. § 2000e-5(b).

 Mrs. Leisner charges that, as the result of her filing, various supervisors have warned her that her actions could jeopardize her career at the Company.

 However, in May, 1972, Mrs. Leisner was invited to attend the Management Assessment Center for testing. She received the highest of the three possible ratings. The report issued by the Center stated, "Susan demonstrated above average ability in most skill areas. This, combined with her innate ability and high work standards, makes her acceptable for a manager's position." (Plaintiff's Exhibit 5.) She has received an average rating in her job performance evaluation, completed approximately one year after she joined the Company. Mrs. Leisner charges that the "average" rating was in retaliation against her filing of the EEOC charge. She has not yet received any promotions although she has been offered an opportunity to attend the Nyack training school. She is currently on a five-month leave of absence commenced in September, 1972, in order that she might continue her graduate studies.

 Miss Booth began working for the Company as an assistant dial service supervisor (Grade 7) in September, 1970.

 Like Mrs. Leisner, her first assignment was teaching clerks at the dial training school for approximately six months. She was subsequently the supervisor in charge of line assignment, responsible for supervising five managers who in turn supervised approximately 35 clerks.

 Plaintiff Booth filed a complaint dated March 3, 1972, with the EEOC and the complaint was deferred to the State Division of Human Rights. The complaint alleged that the defendant discriminated against women in its hiring and other conditions of employment.

 She was subsequently evaluated at the Management Assessment Center and, like plaintiff Leisner, received the highest of the three possible scores. She also received a superior performance evaluation rating and was subsequently promoted to Grade 10 as a dial service supervisor in charge of line assignment. She also has been offered opportunities to attend the Nyack training school.

 The other named plaintiffs filed charges with the EEOC in December, 1971, alleging essentially the same discriminatory practices as those alleged by plaintiffs Leisner and Booth. On May 17, 1972, plaintiff Leisner was issued a notice of right to sue pursuant to 42 U.S.C. § 2000e-5(e) and on August 25, 1972, notices were issued to plaintiffs Gedeon, Hurowitz, Malinowski, Milkman, Principe and Wanio. Plaintiffs Gedeon, Milkman, and Principe have alleged harassment and retaliation in response to their complaints filed with the EEOC.

 Plaintiffs Hurowitz and Milkman have since resigned from the Company and plaintiffs Malinowski and Gedeon have requested transfers to other Bell System companies. Plaintiffs Wanio and Principe continue in the Level 5 jobs to which they were first assigned upon entering the Company.

 Since 1963, the Company has had various programs in effect designed to increase employment of racial minorities and women throughout the Company. The latest Affirmative Action Program was promulgated in 1971 pursuant to the federal contract compliance program. The program pledges the Company "to achieve within a reasonable period of time, an employee profile with respect to race and sex in each major job classification which more or less resembles the relevant labor pool the Company draws upon."

 Among the affirmative steps which the Company has taken to expand employment opportunities for women, it has instructed employment agencies used to recruit college graduates to restrict their referrals for the Management Development Program to women and members of racial minority groups and has placed several advertisements demonstrating the Company's interest in management-level women.

 Plaintiffs' motion for preliminary injunction was heard on November 27-30 and December 1, 1972. On January 18, 1973, while plaintiffs' motion for preliminary injunction was under consideration, a consent decree was entered in the United States District Court for the Eastern District of Pennsylvania compelling the affiliate companies of the American Telephone and Telegraph Company, including New York Telephone Company, to take certain affirmative steps to expand opportunities for women and minorities and to award back pay to certain employees. Equal Employment Opportunity Commission, et al. v. American Telephone and Telegraph Company, et al. (E.D. Pa., January 18, 1973) (Higginbotham, J.).

 The benefits of that decree are available, however, only to those employees who affirmatively elect to relinquish any complaint of discrimination against the Company in exchange for relief provided by the decree. The most immediate relief appears to be a salary increase for those who elect to be bound by the decree. No promotions are guaranteed. The decree also places a judicial stamp of approval on defendant's Affirmative Action Plan which provides for the establishment of goals by defendant. This plan was received in evidence on the hearing of plaintiffs' motion for preliminary injunction. The decree also appears to bind ...


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