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MELANI v. BOARD OF HIGHER EDUC. OF NEW YORK

March 17, 1983

LILIA MELANI, et al., Plaintiffs,
v.
BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK, Defendant



The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, D.J.

 Plaintiffs commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and 42 U.S.C. § 1983 against the Board of Trustees of the City University of New York ("Board"). *fn1" The action is based upon alleged sex discrimination in the Board's employment practices. The Board is a body corporate, existing under Articles 125 and 126 of the New York Education Law and governs and administers the City University of New York ("CUNY"), a public higher education institution consisting of nineteen educational units. *fn2" The court has certified a plaintiff class defined as all women now employed by the Board as members of the professional instructional staff at CUNY, or who at any time since October 1968 have been so employed or have sought such employment. *fn3" Plaintiffs allege sex discrimination in virtually all facets of defendant's employment practices including hiring, promotion, salary, and fringe benefits.

 Because defendant's alleged salary discrimination is the focal point of this controversy, a trial on that limited issue was held, without a jury, on June 17-19 and June 23-24, 1980. Since that time the court has refrained from issuing a decision on the salary issue and has held the remainder of the case in abeyance, due to pending settlement negotiations which appeared likely to resolve the entire case. Having been advised that settlement efforts have broken down completely, the court pursuant to Rule 52(a), Fed. R. Civ. P., now makes the following findings of fact and conclusions of law with regard to plaintiffs' Title VII salary discrimination claims.

 Background

 New York Education Law § 6212 and the By-Laws of the Board ("By-Laws") § 6.1 set forth the positions designated as the CUNY professional instructional staff ("instructional staff"). These job titles include both the teaching positions of professor, associate professor, assistant professor, lecturer and instructor, as well as administrative and service positions such as registrar, college laboratory technician, and the higher education officer ("HEO") job titles. *fn4"

 The salary schedules for the instructional staff are set in accordance with New York Education Law § 6220, Article XII of the By-Laws, and the relevant collective bargaining agreements. The Board has ultimate responsibility for all appointments of faculty, and, with few exceptions, for appointments of non-faculty instructional staff. See By-Laws § 6.6. The Board sets salaries for instructional staff members not covered by the collective bargaining agreement, see By-Laws § 12.1, and approves any supplemental salary payments to an instructional staff member in addition to those set by the collective bargaining agreement. See By-Laws §§ 12.2 and 12.4.

 Members of the instructional staff have been represented by several labor organizations. Since September 1, 1972, the Professional Staff Congress ("PSC/CUNY") has represented individuals in most of the instructional staff job titles. The Board has entered into collective bargaining agreements with PSC/CUNY covering the periods from September 1, 1973 to August 31, 1975; from September 1, 1975 to August 31, 1977; from September 1, 1977 to August 31, 1978; and from September 1, 1978 to August 31, 1980. These agreements set forth as many as ten salary levels within each job title and provide for automatic raises for each year of the agreement.

 Discussion

 A. Title VII Standard for Prima Facie Case

 The plaintiffs in a Title VII action may establish a prima facie case of class-based discrimination by "demonstrating the existence of a discriminatory pattern and practice." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977) (quoting Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976)). *fn5" In order to prove such a pattern or practice, plaintiffs must demonstrate more than "isolated or 'accidental' or sporadic discriminatory acts." They must show that discrimination was "the regular rather than the unusual practice" of the defendant. Teamsters v. United States, supra, 431 U.S. at 336.

 In determining whether proof of discriminatory intent is a necessary part of a Title VII plaintiff's prima facie showing, the court first must determine whether the claim is one of disparate treatment or of disparate impact. In a claim of disparate treatment, the plaintiff alleges that:

 
the employer simply 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 instances be inferred from the mere fact of differences in treatment.

 Teamsters v. United States, supra, 431 U.S. at 335 n.15. By contrast, in a disparate impact case the plaintiff alleges facially neutral employment practices that have a more severe impact on a particular group. Proof of discriminatory intent is not essential to such a case. Id.

 Plaintiffs in the instant case allege that defendant as a general practice pays less to female members of the instructional staff than it pays to similarly qualified male members. Accordingly, under the above definition, plaintiffs have raised a claim of disparate treatment. Plaintiffs' initial burden, therefore, is to show a pattern or practice of intentional salary discrimination against women. *fn6"

 B. Plaintiffs' Evidence

 In asserting their claim of disparate treatment, plaintiffs rely almost exclusively upon a series of statistical studies of the CUNY instructional staff conducted by Dr. Mark R. Killingsworth, a labor economist and professor of economics at Barnard College of Columbia University. *fn7" The source for these studies was the CUNY Instructional Staff Profile ("ISP") data tapes which contained information regarding the instructional staff for each semester from fall 1972 to fall 1977, inclusive.

 Plaintiffs' Study I is comprised of descriptive statistical compilations for two groups of the full-time, active CUNY instructional staff included in the ISP tapes. The first group consists of all such CUNY employees. The second includes only those employees hired after September 1972 ("post-72 hires"). *fn8" The various compilations within each group measure the average salary differential between men and women within sub-classes formed on the basis of a number of productivity-related factors: highest degree, age, years of CUNY service and years since the individual's highest degree. The survey of all staff on the ISP tapes indicates an overall average male-female salary differential of approximately $3,530. Sizeable salary differences between men and women persist when salaries are evaluated for staff comparable with regard to one or two of the characteristics mentioned previously. *fn9" Similar differences characterized the average earnings of men and women hired after September 1972.

 Plaintiffs' Study II considers the combined effect on salary of the factors described in Study I along with a number of additional factors. To do so, plaintiffs' expert used the statistical technique known as multiple regression analysis. As with Study I, separate analyses were performed ...


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