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September 18, 1980

Lula WADE, 1322 Prospect Place, Brooklyn, New York, on behalf of herself and on behalf of all others similarly situated, Plaintiffs,
NEW YORK TELEPHONE COMPANY, James Ahearn, Manager and Pat Wells, Supervisor, Defendants

The opinion of the court was delivered by: CARTER

Plaintiff, a black female, was employed by defendant New York Telephone Company ("the company") as a Business Office Service Representative from January 6, 1969, until her discharge in November, 1975. Her duties included dealing with business and residential customers who call the company to obtain information or have equipment installed, discussing available services and equipment with these customers, and selling to them services and equipment profitable to the company. *fn1"

After her termination, plaintiff's union took her claim of "discharge without proper reason" to arbitration in January, 1977, pursuant to the collective bargaining agreement in force at the time. At the four-day arbitration hearing, plaintiff was represented by counsel and testified under oath. The arbitrator's decision, issued on June 15, 1977, found that the company had "proper reason" to discharge plaintiff as of November, 1975 in that:

the company had reason to conclude that it had an employee whose personal behavior made it difficult to have harmonious working conditions in the office in which she was employed, that it had an employee who was not performing her job in an acceptable manner in that customers were being given incorrect information and not being treated with the courtesy which the company had a right to demand of its Service Representatives, and that it had an employee upon whom it could not fully rely to act in a truthful manner.

 Arbitrator's Decision, pp. 23-24. Plaintiff did not appeal the arbitrator's decision.

 Plaintiff did, however, file a charge of discrimination with the Equal Employment Opportunity Commission in December, 1975. On her EEOC charge form, plaintiff checked the boxes indicating that she was alleging discrimination based on race and sex. In the space provided on the form for describing "what unfair thing was done to you and how other persons were treated differently," plaintiff wrote that she was "discriminated against because of union activities and racial discrimination and thereby fired for performance."

 On November 30, 1977, the EEOC issued to plaintiff a right-to-sue letter, informing her that it "found no reasonable cause to believe (her) allegations were true." The letter characterizes plaintiff's charge as harassment and subsequent discharge because of race and sex.

 On February 17, 1978, within the statutory time limit, plaintiff initiated this suit by filing a Title VII complaint pro se. Subsequently, plaintiff apparently retained counsel and served an amended complaint, dated April 24, 1978, on defendant on or about May 31, 1978. Although this pleading, which supersedes the original complaint, was served after defendants had answered, the latter apparently consented to the amendment, thus meeting the requirements of Rule 15(a), F.R.Civ.P.

 The amended complaint asserts that it is brought as a class action "on behalf of all past, present and future black and female employees" of the company to challenge "regulations, policies, systems, practices, customers (sic) and usages ... which discriminate on the basis of race and sex against plaintiff Wade and her class with respect to employment opportunities" in the company. First Amended Complaint at PP 4, 8. *fn2" The policies and practices complained of are described only as "(including), but (are) not limited to a policy and practice of hiring, terminating and failing to promote employees, which is arbitrary, capricious and has an adverse impact on blacks and females." Id. at P 17.

 The complaint also alleges that from May to November, 1975, defendants "commenced a course of conduct aimed at badgering, harassing and nagging the plaintiff and more specifically at selectively scrutinizing plaintiff's performance in order to establish misconduct and an unsatisfactory performance record thereby justifying a termination;" that plaintiff was discharged for "alleged unsatisfactory performance," and that the discharge was the culmination of conduct complained of in plaintiff's EEOC complaint filed on December 11, 1975. Id. at PP 14-16. *fn3" The plaintiff claims that defendant's conduct entitles her to relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the 14th amendment to the Constitution of the United States. *fn4"

 Declaratory and injunctive relief for the class against the challenged hiring, promotion and termination policies was demanded, and monetary damages were sought only for plaintiff.

 After answering the amended complaint, and after the discovery deadline set by the court had expired, defendants moved to dismiss the complaint for failure to state a claim, Rule 12(b)(6), F.R.Civ.P., or, alternatively, for summary judgment. As both parties have submitted material for the court's consideration beyond the pleadings, the motion will be considered one for summary judgment under Rule 56, F.R.Civ.P. See Rule 12(c), F.R.Civ.P.

 Plaintiff contends that the complaint presents two alternate theories of liability: disparate treatment and disparate impact. The summary judgment motion will be discussed separately as to each theory.

 Disparate Treatment Allegation

 A disparate treatment claim exists when the plaintiff charges that the employer "treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S. Ct. 1843, 1854, n.15, 52 L. Ed. 2d 396 (1977).

 Insofar as the complaint alleges that plaintiff was harassed and discharged because of her race and sex, it attempts to raise a disparate treatment controversy. Defendants argue, however, that the plaintiff has failed to set forth the elements of a prima facie case of discriminatory discharge as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), and its progeny, especially Powell v. Syracuse University, 580 F.2d 1150 (2nd Cir.), cert. denied, 439 U.S. 984, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978).

 The Prima Facie Case

 McDonnell Douglas posits the requisite order and allocation of proof in a "private, non-class action challenging employment discrimination." McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 800, 93 S. Ct. at 1823. Initially, plaintiff must establish a prima facie case of discrimination. In a case alleging discriminatory failure to hire, this can be done by showing (1) that plaintiff belongs to a minority; (2) that he applied for and was qualified for a job for which applicants were being sought; (3) that despite his qualifications he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons with complainant's qualifications. Id. at 802, 93 S. Ct. at 1824.

 The Court noted that as the facts may vary in Title VII suits, so the requisite elements of the prima facie case may vary as well. Id. at n.13. Thus, in a case alleging discriminatory discharge, courts have added the requirement of showing that plaintiff was satisfying the normal requirements of his work, see Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir. 1977), and have permitted the final element of the prima facie case to be satisfied by proof that plaintiff was replaced by a non-minority worker, id., Powell v. Syracuse University, supra, 580 F.2d at 1156, or, if plaintiff was not replaced, by proof that non-minority workers with comparable work records were retained while plaintiff was terminated. Worthy v. United States Steel Corp., 616 F.2d 698, 700, 701 (3rd Cir. 1980); White v. Ed Miller & Sons, Inc., 457 F. Supp. 148, 150 (D.Neb.1978); see Wooten v. New York Telephone Co., 485 F. Supp. 748, 758-59 (S.D.N.Y.1980) (Haight, J.).

 While conceding that plaintiff is a female member of a minority group and was discharged, defendant argues that she has not alleged and, moreover, cannot prove that she was performing her job satisfactorily when terminated or that she was replaced by a non-minority worker.

 Satisfactory Work Performance

 The complaint does not, in fact, expressly aver that plaintiff was performing her job satisfactorily. Instead, it states that prior to January, 1975, there were no recorded complaints concerning her work performance, that continuously until her discharge she received awards and commendations from the company and customers on her job performance, and that in May, 1975, she received an overall rating from her supervisor of "satisfactory plus." ...

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