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September 29, 1981

Karen SCHULTE and Margaret Nardo, Individually and as Representatives of the Class of Psychiatric Social Workers, Plaintiffs,
The STATE OF NEW YORK et al., Defendants

The opinion of the court was delivered by: PRATT


At the last conference held in this action, both parties sought leave to make motions prior to the trial. The court agreed to remove the case from its trial calendar and established August 5, 1981 as the return date for the cross-motions. The papers have since been received, and the motions are now ripe for decision.

 Defendants move for summary judgment on the grounds that plaintiffs' causes of action are untimely, that no private right of action exists against the state under the Equal Pay Act, 29 U.S.C. ┬ž 206, and that the undisputed facts set forth in the pretrial order entitle defendants to judgment in their favor. Plaintiffs move for an order certifying this as a class action pursuant to FRCP 23.


 A. Title VII Claims.

 Defendants argue that both plaintiffs have failed to comply with the prerequisites for bringing a Title VII action and are, therefore, barred from asserting their Title VII claims.

 Plaintiff Schulte was hired as a psychiatric social worker (hereinafter "social worker") in December 1974. On August 10, 1979, Schulte filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that the state's pay scales for Psychologist I and Social Worker I and II discriminated against females. Schulte alleged that whereas the positions of psychologist and social worker were similar in duties and responsibilities, psychologists, who were predominately males, were paid at a higher rate than the social workers, who were predominately females. Schulte's EEOC charge alleged that January 1979 was the date on which the "most recent or continuing discrimination took place". Defendants' memorandum, Ex. A.

 Title VII of the Civil Rights Act of 1964 provides that an aggrieved person must file a complaint with the EEOC "within 180 days after the alleged unlawful employment practice occurred". Defendants contend that the alleged unlawful employment practice occurred at the time plaintiff Schulte was hired in 1975, and that her claim is barred because she did not file her charge with the EEOC until 1979. Plaintiffs urge that the acts of discrimination complained of are a continuing violation that result in an on-going denial of equal terms and conditions of employment. Defendants respond that any post-employments acts "are merely an effect of being hired and classified in a certain position with certain grade and salary" and are not separate discriminatory acts for purposes of Title VII. Defendants' memorandum at 16.

 In the Supreme Court's recent decision in Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980), plaintiff was notified that he had been denied tenure and instead would be offered a one-year terminal contract. Plaintiff had filed a petition with the grievance committee, and the letter notifying him that he would be offered a one-year terminal contract noted that "should the Educational Policy Committee decide to recommend that you be granted tenure, and should the Board of Trustees concur with their recommendation, then of course, it will supersede any previous action taken by the board." 101 S. Ct. at 502 n.2. Eventually, plaintiff's grievance petition was denied, and he was terminated pursuant to the one-year contract. Ricks' claim with the EEOC, alleging discrimination on the basis of national origin, was filed more than 180 days after he had been notified of the decision to deny tenure and to offer a one-year terminal contract, but less than 180 days after his employment actually terminated.

 The Supreme Court held that the alleged unlawful employment practice occurred when plaintiff was notified that he had been denied tenure; it rejected plaintiff's argument that the discriminatory practice had continued up until the point where he was actually terminated. For purposes of computing the limitations period, the Court noted that:

"The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become more painful." * * * It is simply insufficient for Ricks to allege that his termination "gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination." * * * The emphasis is not upon the effects of earlier employment decisions; rather, it "is (upon) whether any present violation exists." 101 S. Ct. at 504 (citations omitted) (emphasis in original).

 Defendants urge that this case is controlled by Ricks because it was upon hiring that plaintiff Schulte was subjected to the alleged unlawful employment practice, and no further independent acts of discrimination are shown after the initial job classification was made. Plaintiffs respond that because plaintiff Schulte's charge filed with the EEOC alleges that she is "being denied equal terms and conditions of employment", she has alleged a continuing violation. Moreover, plaintiffs emphasize that the complaint seeks to enjoin sex discrimination "with respect to compensation, fringe benefits, terms and conditions of employment, methods of hiring, assignments, job classification, promotions and transfer policies." Complaint, P 5.

 The court does not read Ricks as broadly as do defendants. Ricks was a discharge case, where a specific identifiable act can be said to have given rise to the cause of action for wrongful discharge. The claims alleged in this action relate to on-going terms and conditions of employment, primarily salary, and not to any discrete, identifiable act of discrimination. If a cause of action for discriminatory terms and conditions of employment accrued only upon hiring, then anyone who did not bring a claim within six months of hiring would be forever barred from complaining of all those discriminatory conditions which existed at the time of hiring. To require a newly hired employee to challenge the new employer almost immediately is unrealistic. Moreover, it is unlikely that the Supreme Court intended in Ricks to impose such a far reaching change in the law, and this court declines to extend Ricks beyond the discharge situation to this cause of action grounded in continuing conditions of employment.

 For these reasons, the court concludes that plaintiff Schulte's Title VII cause of action is not barred by the statute of limitations, and defendants' motion for summary judgment on this basis must be denied.

 Defendants have also moved to dismiss the Title VII claim of plaintiff Nardo, arguing that she has not fulfilled any of the jurisdictional prerequisites to a Title VII action. Plaintiff Nardo states by affidavit that she accompanied plaintiff Schulte to the office of the EEOC when plaintiff Schulte filed her discrimination charge, and that the EEOC instructed her that it would be unnecessary for each plaintiff to fill out a separate charge form. Nardo aff., May 7, 1980. Plaintiffs state that as long as one plaintiff has fulfilled the procedural prerequisites, that plaintiff may maintain a class action on behalf of all other similarly situated persons. Thus, plaintiffs appear to concede by their own argument that plaintiff Nardo cannot assert her Title VII claim in her own right.

 The court concludes that plaintiff Nardo is barred from bringing an individual Title VII claim, and the motion to dismiss her claim standing alone must be granted. This ruling does not exclude plaintiff Nardo from the class sought to be certified by plaintiffs, if the court should decide that class action treatment is appropriate.

 B. Equal Pay Act Claims

 Defendants argue that plaintiffs' claims under the Equal Pay Act (EPA) are (1) time-barred, (2) precluded because the statutory prerequisites have not been met, and (3) are ...

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