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July 23, 1980

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


This action was commenced in 1975 by the named plaintiff filing a claim on her own behalf and on behalf of all other female employees of defendant *fn1" alleging that the latter's employment practices violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. ┬ž 2000e et seq. Two determinations have already been rendered by the court, familiarity with which will be assumed. Plaintiff's motion for certification of the action as a class action representing all of defendant's female employees was granted, 72 F.R.D. 443 (1976), and a Stage I holding that plaintiff had established a prima facie case by showing that "female employees as a class had been subjected to disparate treatment because of their sex" was rendered. 458 F. Supp. 1147, 1165 (1978). We have now reached Stage II, the final stage of this litigation in this court. At this phase of the proceedings, hearings were held on October 10-28, 1979, to enable the individual members of the class to establish their entitlement, if any, to (1) monetary damages, (2) an order affirmatively requiring defendant to adopt employment practices which will insure compliance with Title VII, and (3) an award of counsel fees and other special costs assessed against defendant.


 At this stage of the proceeding a rebuttable presumption is operative that each member of the class was discriminated against because of her sex, and that various employment decisions during the period when unlawful discrimination was found to exist were made in pursuit of the employer's unlawful policy. The burden rests upon the employer to overcome that presumption. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S. Ct. 1843, 1867-68, 52 L. Ed. 2d 396 (1977); Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 772-73, 96 S. Ct. 1251, 1268, 47 L. Ed. 2d 444 (1976). Members of the class are seeking backpay awards, and the law is settled that where unlawful employment discrimination has been found, "backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373, 45 L. Ed. 2d 280 (1975). See also Franks v. Bowman Transportation Co. Inc., supra, 424 U.S. at 763-64, 771, 96 S. Ct. at 1263-64, 1267. However, "(t)here is no evidence of any salary disparities between men and women occupying the same position." Ste. Marie v. Eastern Railroad Association, supra, 458 F. Supp. at 1156. The statistical data evidencing a gap between male and female employees in salary and salary expectations was found to result from the exclusion of women "from top ranking management positions." Ibid.

 Moreover, as has been indicated in the Stage I proceedings, defendant has removed some of the indices of gender-based bias. Backpay awards, however, are not granted to punish the employer, but to make whole the victims of discrimination. Hence a defendant's good faith is irrelevant. Johnson v. Goodyear Tire & Rubber Co., Synthetic Rubber Plant, 491 F.2d 1364, 1376 (5th Cir. 1974). While the Equal Employment Opportunity Commission has recently adopted a policy recognizing the good faith efforts of unions and employers acting jointly or unilaterally to eliminate discriminatory employment practices, the good faith effort must be of a compelling and aggressive nature to warrant recognition. See EEOC Resolution to Encourage Voluntary Affirmative Action, April 1, 1980, 42 U.S.L.W. 2660 (April 8, 1980). *fn2" The defendant has not succeeded in eliminating all gender-based discrimination and seems only dimly aware of how far distant its practices are from the requirements of Title VII and relevant case law in respect of eliminating all vestiges of employment bias. Under the circumstances, to deny backpay to employees who were barred from advancement because of their sex would clearly defeat the central purposes of Title VII, see Albemarle Paper Co. v. Moody, supra, 422 U.S. at 421, 95 S. Ct. at 2373, and constitute an abuse of discretion. Thus, while class-wide backpay is an appropriate remedy in light of the Stage I finding, see Johnson v. Goodyear Tire & Rubber Co., Synthetic Rubber Plant, supra, 491 F.2d at 1375, such compensation may properly be awarded only to those members of the class who were subjected to gender-based discrimination by being denied a promotion or upgrading or the opportunity to which they otherwise would have been entitled. See English v. Seaboard Coastline R. R. Co., 12 FEP Cases 90, 92-93 (S.D.Ga.1975).

 During the Stage II evidentiary hearing plaintiff did present evidence showing that a number of the class members were in fact for a time performing the duties and responsibilities of their superiors without benefit of the title or pay their superiors enjoyed. While it is established that members of the class were denied promotional opportunities because of their sex, the court is not convinced that these instances of women performing some of the responsibilities of their male superiors stemmed from gender-based discrimination. In any organization, there are times when subordinates have to assume their superiors' burdens. There was no convincing evidence that the pattern in this regard differed substantially from the norm. Accordingly, an award of backpay on this basis is disallowed.

 Plaintiff's class has clearly been denied equal access to promotional benefits and advantages, however, and during the Stage II proceedings various individual members of the class presented evidence designed to show that they had been qualified for promotion but were denied upgrading because of their sex. Defendant sought to counter these claims by proving that each employee in question would not have been promoted even absent defendant's discriminatory policy because she failed to meet valid non-discriminatory criteria for advancement. See Richerson v. Jones, 551 F.2d 918, 924-25 (3d Cir. 1977); Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C.Cir.1976); Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972). We now turn to the specific claims of the individual claimants.


 A. Mary Matthews was employed as a file clerk in 1972; in November, 1972, she was made a junior rate clerk, and was promoted to intermediate rate clerk in 1973. She enrolled in the Traffic Academy. In June, 1974, while she was still attending the Academy and acting as senior rate clerk, she applied for promotion to senior rate clerk. Defendant, however, passed over Matthews and, instead, on June 28, 1974, promoted two men to this position. One of these men was junior to Matthews in terms of service by 6 months, the other by 7; neither had attended the Traffic Academy. Defendant claims that Matthews, who had begun working for defendant two years earlier at age 19, was passed over on the advice of her immediate superior that she was not ready to assume the added responsibility that being a senior rate clerk entailed. However, a memorandum to C. L. Smith, defendant's chief executive, dated April 8, 1975, from William Bolch, Chairman, General Freight Traffic Committee (GFTC), states that Matthews had been fulfilling the duties of senior rate clerk "for the past nine months" and requests that she therefore be promoted and paid the salary of the lowest paid senior rate clerk of all the groups. There is also a July 29, 1974 memorandum from Bolch to the files stating that when Matthews inquired of him as to why she had not been promoted, she was advised that neither of her immediate superiors felt she had the qualifications, and that Matthews "willingly admitted that she was not as capable as the two" men appointed.

 The reasons given for passing over Matthews in favor of the two men is not a satisfactory justification to meet plaintiff's claim of gender-based discrimination. Matthews had superior qualifications by all objective standards seniority and attendance at Traffic Academy, the latter of which was sometimes cited by defendant as a requisite for success and advancement in the freight department. Her acquiescence in defendant's decision to promote two men her junior in seniority did not constitute a waiver of her claims. No objective criteria have been suggested that establish the superiority of the two men who were promoted.

 Matthews is entitled to the difference between her pay as an intermediate rate clerk and the pay of Kupferberg and Campbell, the two men promoted ahead of her, between June 28, 1974 (the date of their appointment as senior rate clerks) and April, 1975, when she was finally appointed senior rate clerk. If Kupferberg and Campbell were accorded a different rate of pay during that period, then Matthews is to be paid at the higher rate. Moreover, her seniority in the position of senior rate clerk is to run from June 28, 1974 the day the two men were appointed with seniority over the two men if they are still employed by defendants and with pay commensurate with that added seniority. In short, she is to receive backpay covering the differential between intermediate and senior rate clerk, and also pay based on her rightful seniority. She is to take that place on the pay scale ahead of the two men as of June 28, 1974, to which her seniority would have entitled her had she not been discriminated against.

 B. Nancy DiGisi started her tour of employment as a stenographer in 1937. Then she worked in the determination advice and rate proposal room for 15 to 17 years as assistant manager, dealing with all aspects of tariffs. During World War II, she was acting manager of the file room with the responsibility of matching correspondence with the proper file. When the male employee she had replaced returned after the war, DiGisi returned to her former position, assistant manager of the determination advice department, where her duties required her to determine whether a matter required rate analysis, and if it did, to turn the matter over to those employees dealing with rates. She applied for the job of manager of the freight department in 1974, when that vacancy was publicized, but the job was given to Robert Tomasulo. She is now secretary to John Fitts, one of defendant's executive officers.

 Tomasulo came on board in 1961 as a file clerk in the freight department. After 17 months he became a junior rate clerk; after 61/2 months in that position he was promoted to intermediate rate clerk. He remained in that post for 2 years and was then promoted to the position of rate analyst. After a short time he became a senior rate clerk. Seven years later he became a chief rate clerk, and after 2 years in that capacity he was made manager of the freight department, successfully bidding on the bulletined position in 1974.

 Defendant argued at the Stage II trial that Tomasulo was appointed on merit alone. Pointing to the incumbent's wide experience in rate making, defendant contended that knowledge of rate making is a requisite to being a successful manager of the freight department because in that capacity one must answer many questions requiring such expertise. Defendant, however, filed Exhibit A during the Stage II proceedings which describes in summary fashion defendant's various activities. The document is apparently designed to give the general public a better understanding of what defendant is and how it operates. In that publication the function of manager of the freight department is spelled out somewhat differently than it was in the testimony presented at Stage II. There Tomasulo is referred to as an office manager "who maintains overall supervision of the Control Section and the department's personnel." Ex. A at page 3. The control section is said to consist "of a group of clerks and typists whose duties entail certain record keeping outside the responsibility of a specific rate group." Id. at pp. 5 and 6. William Bolch is listed as GFTC chairman with Charles Darrell as assistant chairman, and the various research groups report to Bolch.

 Moreover, court exhibit 1, a memorandum dated May 17, 1977, in which William Bolch provides a job description for the position, states that the manager supervises all clerical personnel within the freight, printing and mailing departments, monitoring their attendance, punctuality and office conduct; presides at meetings with the chief rate clerk on freight department rules and procedures; interviews and assists the GFTC chairman in the selection of new employees; presents the chairman with performance evaluations "and all other pertinent information on clerical personnel for promotion, pay increases etc."; prepares monthly reports on the three departments; coordinates freight department activities with other departments of the Traffic Executive Association ("TEA"); and supervises office tariff records and files, office supply inventories, printed supply purchases, and maintenance of publications of the freight department.

 Neither Ex. A nor court Ex. 1 places any emphasis on expertise in rate making. These job descriptions do not accord with defendant's current description of the position ...

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