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September 26, 1979

EDNA H. SOBEL, M.D., and BELLA C. CLUTARIO, M.D., on behalf of themselves and other professional faculty members employed by the Defendant, Yeshiva University, similarly situated, Plaintiffs, and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Intervenor, against YESHIVA UNIVERSITY, EPHRAIM FREIDMAN, M.D., CHESTER EDELMAN, JR., M.D., EMANUEL GENN, HENRY L. BARNETT, M.D., LABE C. SCHEINBERG, HAROLD SCHULMAN, M.D., NEAL BRICKER, M.D., EDWARD HEHRE, M.D., HENRY P. LAUSON, M.D., and ARTHUR S. ABRAMSON, M.D., Defendants.

The opinion of the court was delivered by: GOETTEL

In this putative class action brought by female physicians on the faculty of the Albert Einstein College of Medicine ("AECOM") complaining of sex discrimination, the defendants have moved, pursuant to Fed.R.Civ.P. 56, for summary judgment asserting that the two named plaintiffs have not proven any personal claims of discrimination and, pursuant to Fed.R.Civ.P. 12(b)(6), for dismissal of the cause of action brought under Title IX, Educational Amendments of 1972, 20 U.S.C. § 1681 Et seq., asserting that the plaintiffs have failed to state a claim upon which relief may be granted. The plaintiffs, who had previously moved to certify the class on their first amended and supplemental complaint, now move to file a second amended complaint and to certify the class pursuant to the amendment.

Defendants' Motion for Summary Judgment

 The plaintiffs have asserted that they, along with other female professional employees of AECOM, have been discriminated against on the basis of sex, and that as a result they have received inferior treatment with respect to salary increases, promotions, pensions and other fringe benefits and conditions of their employment. They state that, at a minimum for the purposes of this motion, questions of fact exist which preclude the granting of summary judgment.

 The defendants dispute these claims. They argue with regard to the salary increases that, at least at all times subsequent to when Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e Et seq., became applicable to universities (March 29, 1972), all such increases have been nondiscriminatory and based upon a standard increment. The defendants assert that as a result the two named plaintiffs have received the standard salary increases since 1972, and also claim that they have not been passed over for any promotions which they would have been eligible for or interested in. In addition the defendants state that all pension contributions are directly dependent upon a person's salary, and that such contributions are uniform for both sexes.

 The plaintiffs, in turn, claim that salary increases have not been neutrally and uniformly granted in all of the AECOM departments, and note that the utilization of "out-of-guideline" increments by AECOM make the use of any such system of uniform increases somewhat meaningless. In addition, they assert that at least one of the named plaintiffs (Dr. Clutario) has had her salary set anew (upon reappointment) at a time subsequent to the effective date of Title VII, and thus that the failure to reevaluate and compensate her at the level to which she would have been entitled had she not been subject to pre-Act discrimination constituted a new discriminatory act. As to promotions, plaintiffs assert that they have been discriminatorily granted, with male employees of AECOM obtaining promotions in a shorter period of time than similarly situated females. Finally, the plaintiffs state that the pension benefits paid by AECOM's insurance carrier are not equal since they provide for the payment of a smaller monthly annuity to the women employees than is paid to the men. *fn1"

 In regard to Dr. Clutario's claim of salary discrimination, it has been held that evidence of a discriminatory act which occurred prior to the passage of Title VII and which has some continuing effect on the operation of neutral, legitimate post-Act policies, does not, by itself, serve to taint such legitimate policies. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977); Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Absent an allegation of new, post-Act, discrimination, as opposed to an allegation of pre-Act discrimination which has been perpetuated by post-Act policy, no Title VII claim has been made out. Thus, since it is undisputed that Dr. Clutario has been receiving standard salary increases at all times during the post-Act period, it does not appear that she will be able to sustain a Title VII claim based upon her pre-Act, possibly discriminatory, lower salary level unless she can somehow convert this into a present discriminatory practice. The Court believes it to be highly unlikely that a routine reappointment to the faculty, absent a showing of some special circumstances, *fn2" would be sufficient to constitute a new discriminatory act. Nevertheless, and especially in view of the stringent standard for granting summary judgment, See infra, the plaintiffs must be given the opportunity to prove that such special circumstances exist.

 Turning to the pension benefit claim, the plaintiffs assert that the Supreme Court's decision in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978), is dispositive of the instant issue. In Manhart, it was held that the practice of the defendant, a self insurer, of requiring female employees to make larger contributions to a pension fund than did their male counterparts (in view of the greater average longevity of females) in order to receive the same retirement benefits, was violative of Title VII.

 The pension plan involved in the instant action, however, is different from the plan involved in Manhart. The AECOM plan is funded through a private insurance company, and requires equal pension contributions from men and women. Nevertheless, problems still arise with this plan since it calls for the eventual payment of smaller monthly annuities to women employees than to similarly situated males. *fn3"

 The problems which arise in regard to the pension claim are somewhat vexing. To a substantial degree this results from the difficulty in applying the legalistic rationale of Manhart to a pension plan which is funded through a private insurance company. As was noted in Equal Employment Opportunity Comm'n v. Colby College, 589 F.2d 1139, 1143 (1st Cir. 1978), "Manhart brought to the Court the case that presented the fewest difficulties, and the most conspicuous discrimination, if discrimination there were." The court in Colby College, supra, at 1144, went on to note, however, that it was "difficult to perceive a distinction (from Manhart ) that would permit a plan whereby women make contributions equal to those of men, but receive smaller monthly payments." See Reilly v. Robertson, 266 Ind. 29, 360 N.E.2d 171 (1977), Cert. denied, 434 U.S. 825, 98 S. Ct. 73, 54 L. Ed. 2d 83 (1977). Similarly, the defendants in the instant action will have difficulty distinguishing their pension plan from the rationale of Manhart. Nonetheless, there are serious problems which are present in the instant factual situation. One of the more difficult considerations arises as to the defendants' ability to alter or modify the existing plan, or to compel the private insurer (which has not been named as a party to this action) *fn4" to distribute pension payments in a manner different from that found to be actuarially sound under the existing life expectancy tables. *fn5" Thus, although the Court sees difficulties with the AECOM pension plan, we believe that the complex problem of applying Manhart to a plan funded through a private insurance company in a manner which is both consistent with that decision, and yet can be realistically carried out by the insurance industry, cannot be decided on a motion for summary judgment (either brought by the plaintiffs or the defendants).

 Turning to the remaining claims relating to alleged discrimination in salary, promotion, and fringe benefits (such as allocation of research and office space, and secretarial and fellowship assistance), the Court does not believe that either of the named plaintiffs has, as to this point, made a particularly persuasive showing of individual discrimination. There is, however, a strong policy in this circuit against the granting of summary judgment. See, e.g., Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975). Summary judgment can only be granted when there are no material questions of fact which remain unresolved, Fed.R.Civ.P. 56, and only after all ambiguities and doubts have been resolved, and all inferences drawn, in favor of the party against whom summary judgment is sought. FLLI Moretti Cereali S.p.A. v. Continental Grain Co., 563 F.2d 563 (2d Cir. 1977); American Mfrs. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967). Summary judgment is a "harsh remedy," FLLI Moretti Cereali S.p.A. v. Continental Grain Co., supra, to be granted only in extremely rare instances. See S. E. C. v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978). *fn6"

 Applying this standard, the Court finds that questions of fact exist which preclude the granting of summary judgment. In this regard, the Court believes it to be difficult to evaluate the intent, and effect, of faculty appointment and promotional decisions on an individual basis, absent the submission of extensive comparative material. See Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169 (1st Cir. 1978); Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974) (necessity in job discrimination suit that there be a comparison made with other employees, taking into account experience, skill, and purpose for hiring). In addition, in the context of the instant action as a class suit, it may be that proof of existing discriminatory practices against the class will serve to strengthen the individual claims made by the named plaintiffs. In any event, as to salary, evidence as to the use of out-of-guideline increments could prove the existence of favoritism towards the male employees, a circumstance which would make the fact that these female employees may have received standard pay increases immaterial.

 Accordingly, the defendants' motion for summary judgment is denied.

 Defendants' Motion to Dismiss the Title IX Claim

 The defendants have also moved to dismiss the plaintiffs' claim which is based upon Title IX, Educational Amendments of 1972, 20 U.S.C. § 1681 Et seq., asserting that no implied private right of action exists under which these plaintiffs may maintain their suit for sex ...

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