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April 24, 1981

The CITY OF NEW YORK et al., Defendants

The opinion of the court was delivered by: LOWE


Plaintiffs filed this action more than five years ago alleging that the use by defendants of sex-differentiated actuarial tables in their retirement plans violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, and the New York Human Rights Law, N.Y.Exec.Law § 290 et seq. (McKinney). Since that time the parties have engaged in discovery and extensive, though unsuccessful settlement negotiations. Now, both sides have moved for summary judgment on the issue of defendants' liability under Title VII. The parties also seek a determination of the nature and scope of relief, if any, to which plaintiffs are entitled pursuant to that Act. For the reasons that follow, the Court grants plaintiffs' motion for summary judgment on the merits of their Title VII claims. On the question of damages, the Court finds that there are triable issues of fact in dispute, and therefore denies summary judgment for either side.


 The plaintiff class in this action consists of past and present female City-Service employees within the meaning of the Administrative Code of the City of New York, section B3-1.0(3), who are compulsory members of a New York City Employees' Retirement System ("NYCERS") Plan. *fn1" Named plaintiffs are: (1) Women in City Government United ("WICGU"), an unincorporated organization of female employees of defendant City of New York; and (2) five female individuals, each of whom is a member of a NYCERS Plan. Defendants include the City of New York ("City"); the NYCERS, which administers City retirement plans pursuant to Chapter III, Title B of the Administrative Code of the City; members of the NYCERS Board of Trustees; and the Mayor of the City.

 The facts material to the contested legal claims under Title VII essentially are admitted by all the parties. *fn2" NYCERS offers a number of plans for retirement benefits *fn3" to City-Service employees, who are required by Administrative Code § B3-3.0(1) to join one of those Plans. *fn4" As of January 31, 1980, there were approximately 160,000 active members of NYCERS of whom 50,000 were female. Retirees receiving NYCERS benefits numbered approximately 70,000, 20,000 of whom were female. *fn5"

 Under the plans, contributions are a percentage of employees' salaries during their working careers, set at minimum rates derived from actuarial tables. *fn6" Employee contributions, and thus the retirement allowance, are also affected by certain provisions of the Social Security Law and the ITHP. *fn7" Employers contribute to the ITHP and pension reserves, which constitute part of the total retirement allowance. See note 3, supra.

 NYCERS Plans fall into two general categories according to the benefits available: guaranteed and non-guaranteed. The difference between the two is the manner of calculating the retirement allowance (benefit). Under guaranteed plans, the overall retirement allowance is a guaranteed percentage of the last year's salary. *fn8" Under the non-guaranteed plans, only the pension portion of the retirement allowance is a guaranteed percentage of the last year's salary. The annuity and ITHP parts of the allowance are determined by the amount of money actually contributed to those funds, divided by an annuity factor.

 Annuity factors, like the contribution rates, are derived from trustee-approved, sex-differentiated actuarial tables. Under guaranteed plans, annuity factors are applied to the annuity and ITHP reserves to determine two parts of the monthly allowance with the result that those portions of the retirement allowance are always different for men and women. The pension reserve portion is the remainder after the annuity and ITHP funds are subtracted from the guaranteed allowance. Thus, all three elements of guaranteed plans are different for similarly situated males and females. Most important, the overall retirement allowance for a similarly situated male and female under the guaranteed plans is different in every case except where each retires with exactly 25 years of service, having contributed no more or no less than the baseline rate. *fn9"

 Under non-guaranteed plans the pension element is calculated as a guaranteed percentage of the last year's salary so it results in equality between similarly situated members of the two sexes. However, because the other two elements are calculated using the sex-differentiated annuity factor, they are not the same for men and women. Accordingly, the total allowance under the non-guaranteed plans is not the same between similarly situated males and females. *fn10"

 From the foregoing statement of facts it is apparent that the NYCERS Plans challenged in this lawsuit utilize sex-differentiated actuarial tables to compute both the contributions and the benefits for employee members. Those tables assume that women as a class will live longer than men. As a result, women contributors pay more than similarly situated men, i. e., women contributors take home less pay than similarly situated men. In addition, the monthly benefits after retirement or death for similarly situated men and women, in general, are not equal.


 The parties to this action raise a number of issues and arguments falling into two categories: liability and damages. The issues pertaining to liability are legal in nature, and, as discussed below, are resolved by the Court in favor of plaintiffs. With regard to the appropriate relief, the Court finds that a number of serious and vigorously disputed factual issues remain. Those issues cannot be resolved on a motion for summary judgment but must be decided by the trier of fact or by settlement.



 Plaintiffs have demonstrated their right to relief under Title VII. First, all jurisdictional prerequisites have been satisfied as to each of the defendants. Second, the undisputed facts evidence a prima facie violation of Title VII. *fn11" Third, defendants have not proven that they are exempted from the reach of Title VII.

 A. Jurisdiction

 The parties agree that plaintiffs have met the jurisdictional prerequisites of initiating a federal action under Title VII with respect to defendants NYCERS and the City. *fn12" However, defendants argue that those requirements have not been satisfied as to the individually-named trustees of the NYCERS because the latter were not named in the complaints filed with the Equal Employment Opportunity Commission. In addition, the trustees maintain that, at most, they are amenable to suit in their official capacities so that the claims against them in their individual capacities must be dismissed.

 The Court holds that the trustees are proper defendants under Title VII, following the reasoning of Vulcan Society v. Fire Department of City of White Plains, 82 F.R.D. 379, 389 (S.D.N.Y.1979). There, the Court held:

(It) is not necessary that each and every defendant be named in the EEOC charge for that defendant to be a proper Title VII defendant in an action. (citation) If ... there was "substantial identity' between those named in the EEOC charge and these defendants (citation) and these defendants had notice of the EEOC proceeding (citation) these defendants need not have been named in the EEOC charge to be properly before this court.

 See Glus v. G. C. Murphy, 562 F.2d 880, 888 (3d Cir. 1977); Vanguard Justice Soc'y, Inc. v. Hughes, 471 F. Supp. 670, 688-89 (D.Md.1979). Cf. Schick v. Bronstein, 447 F. Supp. 333, 336 (S.D.N.Y.1978); Stith v. Manor Baking Co., 418 F. Supp. 150, 156 (W.D.Mo.1976). The policies underlying the administrative scheme for Title VII have been fulfilled in this case, since notice to NYCERS in practice is notice to its Board of Trustees *fn13" and the likelihood of an informal, administrative solution to the present dispute is negligible. Defendants do not refute plaintiffs' claim that NYCERS has no separate officers from its trustees, or that the trustees make all decisions for NYCERS. *fn14" Nor do defendant trustees point to any decision in this Circuit that would compel dismissal for lack of jurisdiction over the claims against them.

 The trustees further argue that plaintiffs have no "right to proceed against them in their individual capacities." *fn15" The Court agrees. Those defendants, as individuals, are not employers (or agents thereof) within purview of Title VII, 42 U.S.C. § 2000e(b). They were working on behalf of NYCERS solely as trustees and at all times within the scope of their authority when they approved the use of sex-differentiated actuarial tables for the NYCERS Plans. Those acts should not be considered now as the basis for individual liability. See Friend v. Union Dime Savings Bank, 24 Emp.Prac.Dec. para. 31,209 at 17,369 (S.D.N.Y.1980). Cf. Kedra v. City of ...

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