The opinion of the court was delivered by: BARTELS
This is a motion by the defendant Newsday, Inc. for partial summary judgment in a non-jury case involving an across-the-board attack by four named plaintiffs, representing a class of some fifteen thousand women, on all of Newsday's employment practices, on the grounds of sex discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq. The original complaint was filed on January 13, 1975, and an amended complaint was filed on February 18, 1975. The nature of the attack has been fully set forth in the Court's class certification opinion. Carter v. Newsday, Inc., 76 F.R.D. 9 (E.D.N.Y.1976), familiarity with which is assumed. The class of individuals certified therein was defined as:
(1) all female employees of Newsday who have been employed since March 1, 1973, and all who may be employed in the future, and (2) all female applicants for positions at Newsday since March 1, 1973, and all who may apply in the future.
Carter v. Newsday, Inc., 76 F.R.D. at 15-16. The cut-off date of March 1, 1973 was chosen as falling 300 days prior to the filing of charges of discrimination against Newsday with the Equal Employment Opportunity Commission. See id. at 15.
Newsday's motion papers, pursuant to Rule 56, F.R.Civ.P., and Rule 9(g) of the General Rules of the Eastern District of New York, set forth various factual grounds for its argument that summary judgment should issue in its favor. The motion is limited to the plaintiffs' class claims represented by Marian Leifsen alleging disparate treatment in hiring in the editorial department. References are made to deposition testimony, and stipulations of fact entered into by the parties contained in the submission, on July 9, 1981, of the Joint Pretrial Order ("JPO") which will govern the trial of this case. Included in the same papers is an application by Newsday under Rule 23, F.R.Civ.P., for partial decertification of the class to exclude applicants for both editorial and non-editorial positions. Because the relief sought by Newsday in its decertification motion is conditioned, in part, on the determination of the summary judgment motion, we address the latter first.
The Court realizes that in a sex discrimination suit, summary judgment will rarely be granted.
Courts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers.
Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir. 1980); see also Rodriguez v. City of Eastchester, 620 F.2d 362 (2d Cir. 1980). Nevertheless, as in any protracted case of this type, it is necessary to screen out in advance sham issues and "discover whether one side has no real support for its version of the facts." Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962).
We note also that summary judgment is only appropriate "when a review of the entire record demonstrates that there is no genuine issue as to any material fact." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir. 1980); F.R.Civ.P. 56(c). In such a case the burden rests on the moving party to show the absence of genuine issues, and the Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought." Heyman v. Commerce & Industry Insur. Co., 524 F.2d 1317, 1320 (2d Cir. 1975); see also United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976); 10 Wright & Miller, Federal Practice and Procedure § 2727 (1973). The nonmovant may generate uncertainty as to the true state of any material fact by coming forth with affidavits or other discovery materials, but may not rely "upon the mere allegations or denials of his pleading." Rule 56(e), F.R.Civ.P. Nor may the nonmovant rely on deposition statements to the effect that the deponent "does not remember" a particular fact, as a means of putting that fact in issue. See, e.g., Erickson v. Said, 42 F.R.D. 170, 172 (S.D.N.Y.1967), where the opposing party "did not recall" whether or not a material fact was as stated by moving party.
We turn to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), for the test to make out a prima facie case of disparate treatment. The Supreme Court there held that a plaintiff makes out a prima facie case of disparate treatment by showing that: (1) she is a member of the protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) despite her qualifications, she was rejected; and (4) after her rejection, the position remained open and the employer continued to seek applicants from persons of her qualifications.
Thereafter the burden shifts to the employer to produce evidence of some legitimate, nondiscriminatory reason for the applicant's rejection. Id.; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). At that point the factual issue is narrowed down to the reasons for the applicant's rejection, in order to enable her to indicate that such reason was simply a pretext for discrimination. Burdine, 101 S. Ct. at 1095. She must show, in short, that her rejection for a job did not result from "the two most common legitimate reasons on which an employer might rely to reject a job applicant: (i.e.) an absolute or relative lack of qualifications or the absence of a vacancy in the job sought." International Bro. of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S. Ct. 1843, 1866 n.44, 52 L. Ed. 2d 396 (1977) (emphasis added).
On its motion for partial summary judgment therefore, Newsday must show that no genuine issue exists as to the fact that there is a nondiscriminatory reason for its employment decisions in the editorial department during the relevant time period under consideration. Reich v. New York Hospital, 513 F. Supp. 854, 860 (S.D.N.Y.1981). The crucial issue here involved is that of intent to discriminate. Any doubt as to the existence of a genuine issue of fact as to Newsday's intent must be resolved against the defendant. Thus, even if Newsday does show that there is no genuine issue of fact that a nondiscriminatory reason for its employment decisions exists, it must also establish that there is no genuine issue of fact that its stated reason for those decisions was not a pretext if the plaintiffs have established a prima facie case. Id. at 861; McDonnell Douglas, 411 U.S. at 804-06, 93 S. Ct. at 1825-1826. Newsday's burden is thus unquestionably a heavy one, and "(absent) the submission of extensive comparative material" the evaluation of employer intent would be difficult short of a trial. Sobel v. Yeshiva University, 477 F. Supp. 1161, 1167 (S.D.N.Y.1979). As will further appear, however, the Court has available to it both extensive and undisputed data comparing application and hiring percentages at Newsday in the editorial department. Cf. Reed v. Lockheed Aircraft Corp., 613 F.2d at 762 (summary judgment inappropriate where there was no statistical data in the record pending full discovery).
In considering this application the Court recognizes that as part of the record there exists for examination the result of extensive discovery conducted by the plaintiffs, as well as defendant Newsday's response to more than 230 interrogatories and requests for admission. In addition, pursuant to the Court's Order of December 13, 1978, both parties have secured statistical experts to conduct studies of Newsday's hiring, promotion, and salary practices, and their reports constitute part of the record in this case.
On May 29, 1981 the parties submitted thirteen exhibits (SX1-13) setting forth detailed stipulations as to data on Newsday's hiring and promotions.
In the JPO, consisting of over 1000 pages, the parties agreed that the "entire employment process for professional positions within the (editorial) department" is handled by that department alone, P 189A, JPO at p. 273, in contrast to the hiring procedures for the other departments and positions at Newsday, which are handled by the employee relations department. P 169A, JPO at p. 263. It is appropriate, therefore, for the Court to address the question of hiring discrimination in the editorial department on a motion for partial summary judgment, separate from the question of hiring discrimination in the other departments. In the Court's view, the issue on this motion is reduced to the question whether a genuine dispute exists that the percentage of female hires in Newsday's editorial ...