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April 30, 1975

Jane Monell et al., Plaintiffs
Department of Social Services of City of New York et al., Defendants

Metzner, D.J.

The opinion of the court was delivered by: METZNER


This action is brought by female employees of the New York City Board of Education (Board) and the New York City Department of Social Services (Department) on behalf of themselves and other female employees in city agencies similarly situated. Plaintiffs challenge, on constitutional grounds, the rules and regulations of the defendant city agencies which plaintiffs claim arbitrarily compelled pregnant employees to take unpaid leaves of absence when they desired to, and were capable of working beyond the mandatory leave period. Plaintiffs seek declaratory and injunctive relief and damages for back pay.

 According to the allegations of the complaint, the individual defendants Sugarman, Scribner and Lindsay are sued in their official capacities.

 Jurisdiction is based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (the civil rights statute and its jurisdictional counterpart), and 42 U.S.C. § 2000e, et seq. (Title VII, the Equal Employment Opportunity Act).

 Judge Motley has previously determined that the suit may be maintained as a class action. 357 F. Supp. 1051 (1972).

 Defendants have moved to dismiss the action or, in the alternative, for an order granting summary judgment. They also seek to vacate the order granting class action status to this suit or, in the alternative, to compel plaintiffs to pay for the class action notice if it is ruled that the action proceed as a class action.

 Plaintiffs have cross-moved for summary judgment.

 The original complaint was filed on July 26, 1971, with the plaintiffs being Monell, an employee of the Department, and Terrall and Zapata employed by the Board. An amended complaint was filed on September 14, 1972, which added plaintiff Abbey, who was employed by the Board. The amended complaint was filed following the amendment to Title VII permitting actions against governmental agencies charged with discrimination in employment. The record shows that each of the four plaintiffs was directed to take maternity leave about a month before the date that their respective doctors would have ordered.

 In the fall of 1971, the Department changed its maternity leave policy to provide that no woman need report her pregnancy or take maternity leave as long as she is able to continue to perform her job and desires to do so. This policy change was ordered effective in all city agencies, including the Department, on January 29, 1972, by a directive from former Deputy Mayor Edward K. Hamilton.

 The Board of Education of the City of New York similarly changed its bylaws effective September 1, 1973.

 These changes, while made subsequent to the institution of this action, antedated the decision in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), which would hold the practices complained of here to be unconstitutional. Consequently, the claims for equitable relief by way of injunction or declaratory judgment are moot. See, Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), cert. denied, 417 U.S. 936, 41 L. Ed. 2d 240, 94 S. Ct. 2652 (1974); Nieves v. Oswald, 498 F.2d 802, 813 (2d Cir. 1974).

 We are left then with claims for back pay covering the periods for which plaintiffs allege they could have worked after being forced to take maternity leave.

 The holding in City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) supports a ruling that an action under Section 1983 will not lie against either the Board or the Department for any relief. Plaintiffs place great reliance on Forman v. Community Services, Inc., 500 F.2d 1246, 1254 (2d Cir. 1974), cert. granted, 419 U.S. 1120, 95 S. Ct. 801, 42 L. Ed. 2d 819, 43 U.S.L.W. § 403 (1975) (No. 647), as authority for the proposition that the Board is not immune to an action under that section. That case is not in point since the statute creating the State Housing Authority specifically waived governmental immunity both as to the agency and the state.

 Under the Eleventh Amendment which precludes any action by a citizen against a state, it has been held that a state officer sued in his governmental capacity may be enjoined from future action that may be violative of the Constitution. Edelman v. Jordan, 415 U.S. 651, 664, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); McMillan v. Board of Education of State of New York, 430 F.2d 1145, 1148-49 (2d Cir. 1970). However, the Court went on to hold that monetary damages, even if characterized as "equitable restitution," may not be awarded for past injury if they are to be paid from the state treasury. Such an action runs afoul of the Eleventh ...

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