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October 16, 1978

Theresa J. STE. MARIE, Individually and on behalf of all other persons similarly situated, Plaintiffs,
EASTERN RAILROAD ASSOCIATION and Traffic Executive Association, Defendants

The opinion of the court was delivered by: CARTER

The Underlying Charge

In August, 1974, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") accusing defendant, Eastern Railroad Association ("ERA"), of maintaining policies and practices that discriminated against her as a female employee because of her sex. The charge cited two acts of alleged sex discrimination (1) the refusal in May, 1974 to allow plaintiff to enroll in evening accounting courses under the company's tuition refund program and (2) ERA's failure or refusal to act favorably on plaintiff's application of June 18, 1974, for appointment to the position of Manager, Freight Department. EEOC referred the charge to the New York State Division on Human Rights. That agency issued its determination on October 24, 1974, finding a lack of probable cause and ordering the complaint dismissed. Plaintiff appealed, and on May 16, 1975, the State Human Rights Appeal Board affirmed dismissal of the complaint.

 Complaint and Class Determination

 On June 30, 1975, EEOC issued its right to sue letter, and on September 26, 1975, plaintiff filed the instant complaint on behalf of herself and all other female employees who allegedly are being victimized by unfair employment practices in re the terms and conditions of employment of the ERA in violation of 42 U.S.C. § 2000e Et seq. Plaintiff moved to certify the class to include all of defendant's *fn1" female employees. Defendant opposed the motion for certification of the proposed class of all female employees on the ground that plaintiff, for a variety of reasons, could not adequately represent a class so broadly defined. Defendant's arguments were rejected, and on October 20, 1976, the court ordered the class certified under Rule 23(b)(2), F.R.Civ.P., and the class as certified was defined as all female employees of the defendant organization. In her case here, plaintiff seeks an injunction prohibiting defendant from continuing the practices alleged to violate Title VII, 42 U.S.C. § 2000e-2(a) and (b) *fn2" , a declaratory judgment that such practices contravene the above cited provisions, damages and attorney fees. The matter was tried before the court between January 31 and February 10, 1978. On the second day of the trial, the parties agreed to limit the trial to issues of liability only. Subsequently, proposed findings of fact, conclusions of law and post-trial memoranda were submitted.

 Overall Organizational Structure of Eastern Railroad Association

 ERA is an unincorporated association which the 23 major railroads in the eastern part of the United States established on November 1, 1970, to provide administrative services and supervision of the Traffic Executive Association ("TEA"), the Eastern Weighing and Inspection Bureau ("EWIB") and the Railroad Perishable Inspection Agency ("RPIA"). Overall administration of ERA is performed by two administrative committees, composed of representatives of the member lines, and day to day executive supervision and administration of ERA rests with Charles L. Smith, President of ERA and Chairman of TEA.


 TEA, functioning since 1877, deals with rates, classifications, allowances and charges. Within TEA is the General Freight Traffic Department (GFTD). This department analyzes rate proposals and recommends to ERA member lines whether to approve or disapprove their adoption. It is the largest department within TEA and offers its employees opportunity for acquiring technical skills in the handling of transportation and traffic problems. There are technical positions in the department (junior, intermediate and senior rate clerk) for which attendance at Advanced Traffic School is considered desirable, and advancement to the upper echelons of the ERA and TEA is said to require experience and knowledge as a rate clerk. Not an inconsiderable number of those now holding exalted positions in the organization, however, were not required to attain their present eminence on the junior, intermediate, senior rate clerk escalator, and a number of defendant's executives did not attend Advanced Traffic School or, if enrolled, did not complete the course.

 Publication Services is the second largest department in TEA. It has two main divisions a Tariff Services Bureau and a Data Processing Center. The Tariff Services Bureau compiles, publishes and files with the appropriate government agency rates, rules and regulations for the member lines. The Data Processing Center provides data processing and computer programming for ERA and member lines. As with GFTD, normal lines of progression seem clear through intermediate technical positions, e.g., junior, intermediate, and senior tariff compiler; key input operator, supervisor, key input section, console operator, programmer (junior, intermediate, senior), and systems programmer, but thereafter the steps upward are not so precisely outlined.

 It had long been TEA's policy to encourage all male employees in GFTD to attend Advanced Traffic School, and to further this policy a tuition refund program was adopted. Under that program 50% Of tuition costs of those attending Advanced Traffic School was paid on enrollment, with the balance of the tuition being reimbursed on satisfactory completion of the course and employment at TEA continuously for 6 months thereafter. Until recently, no such encouragement and assistance were given to female employees, and indeed, women were not employed as rate clerks until approximately 1972. There was testimony that Joseph Liebscher, a long time employee of TEA and currently ERA's Comptroller who interviews new hirees, did not acquaint female employees with the tuition refund program or indicate to them the desirability of attending Advanced Traffic School. There was also testimony that David Rogers, Director, Publications Services and Tariff Publishing Officer, actively encouraged all tariff compilers to attend Advanced Traffic School and those in data processing to improve their knowledge by attending an IBM institute or university such as New York University offering courses in computer science technology. The tuition refund program has been expanded to include the latter programs. Indeed, it is fair to say that the current program embraces any continuing educational curriculum that would render the employee more useful to the ERA. While Liebscher should be more conscientious in providing information to new employees about the organization's policy, the program as currently administered is free of any taint of discrimination, and all female employees know about the program or have ready access to such knowledge.

 Administration and General Services

 The Administration and General Services Department performs general personnel and housekeeping functions for all units of the ERA. It maintains personnel records, handles payroll, payroll taxes, and administers employee benefit and health plans. Its chief officer is the comptroller.

 Eastern Weighing and Inspection Bureau ("EWIB")

 This organization polices weight agreements between railroads and shippers, investigates loss and damage claims and provides various inspection and loading services in connection with railroad cars. Until 1970, EWIB was a constituent part of TEA, but with the formation of ERA that year, EWIB was placed directly under the jurisdiction of that agency subject to the immediate supervision of the Inspection Services Department. A majority of the employees in EWIB are inspectors. There are various district offices located throughout the geographical area in which member lines of the ERA operate and from which the inspectors work. These offices are headed by district managers. Promotion to district manager is made by the general manager of the Inspection Services Department, subject to the approval of the President of ERA. A director of EWIB is appointed with the approval of the President of ERA.

 Railroad Perishable Inspection Agency ("RPIA")

 This agency became a part of ERA in 1970. It performs inspection and loading services, investigates loss and damage claims in respect of perishable commodities, i. e., vegetables, meats and frozen foods. The principal job category here, as in EWIB, is inspector. It operates district offices in some 32 cities. When the agency began functioning in the 1930's, no formal educational qualifications were needed for employment. Since 1940, an RPIA inspector is required to have a minimum of 2 years college in agriculture, biology or bacteriology. This is the only defendant agency which mandates precise educational requirements as a condition of employment. *fn3" A district inspector heads each district office, a district manager is responsible for each home district, and a regional manager heads each region. There is a director and manager of RPIA. Both are appointed on the recommendation of the President of ERA.

 RPIA is the only ERA constituent to be governed by a collective bargaining agreement. The agreement requires that all but excepted positions must be bulletined before they can be filled. The excepted positions director, manager, district inspector, assistant district inspector, chief clerk, assistant accountant, three office managers, dry freight inspectors and secretaries employed at ERA headquarters, Two Penn Plaza in New York need not be bulletined. Appointments to these excepted positions (other than director and manager) are made on the recommendation of the general manager, Inspection Services Department. However, except for the director and manager, the rates of pay and all other terms and conditions of employment of the excepted positions are governed by the collective bargaining agreement between RPIA and the Brotherhood of Railway, Air Line and Steamship Clerks.

 An Inspection Services Department has overall supervision of both EWIB and RPIA. This agency came into being on May 17, 1974, and is headed by a general manager.

 Top Management

 All top key management positions are appointed by Administrative Committees of TEA and RPIA on the recommendation of the President, ERA and Chairman, TEA, both positions now held by Charles L. Smith. These positions include Chairman and Vice Chairman, TEA; Chairman and Vice Chairman, General Traffic Freight Committee; Director, Publication Services and Tariff Publishing Officer; General Manager, Inspection Services; Comptroller; Director and Manager, EWIB; and Director and Manager, RPIA.

 ERA's Policy of Job Qualifications

 Except for the indicated RPIA positions, there are no educational requirements for any position in the organization. Many of those holding top positions are self-made men who rose through the ranks. While the President of ERA and Chairman of TEA, Charles L. Smith, is a college graduate, his fellow high ranking colleagues seem not to possess a college education.

 Defendant contends that rate experience is a Sine qua non for advancement to the higher reaches of TEA, and that, therefore, advancement must include tenure on the rate clerk ladder and attendance at Advanced Traffic School. I reject this contention as unproved. Since a major function of the organization concerns rates, some background and knowledge of this feature of defendant's operation is certainly needed for advancement to top management positions, but it is clear that such background knowledge can be gained without service on the rate clerk gradation.

 As indicated earlier, some of the top men seem to have gained eminence in the organization without experience as rate clerks. The present Comptroller, Joseph Leibscher, came up through the ranks from office boy and became Member, Research Group without having spent time as rate clerk. Rather, by diligent application to his assigned duties, Liebscher apparently earned the respect of his supervisors. As he advanced upward on their recommendations, he amassed sufficient knowledge of the organization's functioning to enable him to take on added responsibilities.

 Nor is the present Tariff Publications Officer one who has had a rate clerk background. David Rogers gained his knowledge about rates and rate making in his former position with the Interstate Commerce Commission. Gloria Endriss, who was appointed in 1977 as a Member, Research Group the first woman to hold that position has no rate clerk background. There are others as well, but further detail is unnecessary. On the basis of this record, defendant has failed to establish that the absence of women from top management positions is due to a lack of experience and training as rate clerks a lack of training for which defendant's policies are directly responsible in any event.

 Defendant may be on sounder footing in its contention that upward mobility in the inspection services departments (EWIB and RPIA) must begin with some experience as an inspector. This seems plausible enough. There is a paucity of female inspectors, however one in EWIB where no specific educational background is required, and two in RPIA where 2 years in agricultural college is necessary. Defendant's ...

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