The opinion of the court was delivered by: GAGLIARDI
Plaintiffs commenced this action against Ogilvy & Mather, Inc. ("O&M"), an advertising agency, alleging employment discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
The case was tried without a jury from October 3, 1983 through November 15, 1983. The court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Fed. R. Civ. P.
At the end of 1976, O&M employed approximately 800 employees in New York City. About 200 of those employees were office and clerical workers; the remainder were classified as officials, managers, and professionals, By 1983, the total number of new York employees had grown to 1,045, of whom approximately four hundred were office and clerical workers.
O&M is divided into four major departments and a number of smaller, supporting departments. The largest departments, in terms of numbers of employees, are account management, creative, media, and research. The smaller, supporting departments at O&M include legal, accounting, personnel, and marketing services. Since the inception of this litigation, there have been as many as sixty-six divisions, departments and/or units within O&M at any one time.
The account management department serves client advertisers, and plans and executes advertising programs. The creative department produces the words and images which are heard and seen as advertising. The media department directs the purchase of advertising space in print media or advertising time in broadcast media. The research department obtains information about ad or product performance which can be used by other departments. The staffs of the major departments often are functionally divided into account groups, that is, groups of employees assigned to service a particular client or product.
An individual seeking a professional position at O&M can apply directly to the O&M personnel department, or can apply through an employment agency, a college or graduate school recruitment program, or a letter to or personal contact with a professional staff member in any O&M department.Entry-level professional jobs may be filled by transfer of O&M employees working in clerical or other support positions. Professional positions higher than entry level frequently are filled by promotion from within the department in which the vacancy occurs.
The personnel department generally recruits candidates and conducts interviews of applicants for professional positions in all departments except the creative department. In addition, interviews usually are conducted by one or more employees in the department or group for which the applicant has applied or is being considered.
Candidates for positions in the creative department generally submit a resume and portfolio as part of their initial application. The creative department has its own personnel manager and deputy or assistant personnel manager, who interview applicants. Candidates for creative department positions also may be interviewed by staff members of that department. On a number of occasions since 1975, O&M has screened creative department applicants by the use of "copy tests," writing exercises to measure ability to create advertising copy. O&M has ceased using such tests.
Until 1982, O&M had no written job descriptions. O&M has not established any minimal educational or experience requirements for any of its professional positions. O&M does not post job listings or otherwise formally advise its staff of opportunities for promotion or transfer within the New York office. Since March 1976, O&M's stated policy has been to require department heads and management supervisors (or account group directors) to advise the personnel office of job openings.
O&M's stated policy has been to evaluate the performance of supervisory employees once a year and that of non-supervisory employees approximately twice a year, although in practice some employees have been evaluated less frequently. An evaluation form is sent to each employee's department head, or, if the employee works in the account management department, to the employee's management supervisor or account group director. The evaluation form is then sent to the personnel department and to the top officials at O&M, and eventually is retained in the employee's personnel file. A document entitled "category ratings" describes the number ratings, or, during some periods, letter ratings, which may be assigned to an employee as part of the evaluation. The categories in which an employee is rated include "marketing knowledge," "analytical ability," "writing ability," "presentation skill," "initiative/energy/drive," "supervisory skill/leadership," and "ability to take pressure."
With the exception of a few entry level positions, O&M has no written minimum or maximum salary for any professional job title. Because salaries are kept confidential, employees have access only to salary information regarding their supervisees. Each year, department heads and management supervisors/account group directors are given department or account group salary budgets based on O&M's financial situation. Those supervisors make recommendations regarding salary increases, but are not given any written guidelines for the amount of increases permissible. Those requests for pay increases are considered by a salary review committee composed of three or four of the highest members of O&M management. In passing upon a proposed raise, the committee considers, inter alia, the employee's salary history, his or her performance category rating, and the salaries received by those in comparable positions in O&M and in other advertising agencies in New York.
Of the professional and managerial employees at O&M, approximately 150 also have titles as officers. The lowest official title is vice-president. When an employee is elected vice-president, his or her job duties and salary do not change. A new vice-president will receive a small amount of O&M stock and periodically will attend officers' meetings, but will not, by virtue of the official title, be afforded any additional authority in running the agency.
In May 1970, O&M hired plaintiff Jane Zukofsky as an assistant broadcast operations director in broadcast operations. That unit, which is also known as broadcast forwarding, is part of the account coordination and services department.
On November 16, 1970, Zukofsky was promoted to broadcast operations director.From the Date of her hire to the present, Zukofsky's immediate supervisor has been Sally Bieley, manager of the broadcast operations division.
Within a few years of her hire at O&M, Zukofsky began a series of efforts to be transferred from broadcast operations. In or about 1974, Zukofsky met with Jack Silverman, a producer of television commercials in O&M's creative department, in an effort to obtain a position as an assistant producer. In or about the spring of 1975, Zukofsky submitted a "story board," a television commercial outline, and other writing samples to John Rand, a high-ranking employee within the creative department. Sometime in 1978, Zukofsky met with Bob White, a senior employee in account management, to discuss the possibility of her transfer to that department. Zukofsky was not transferred from broadcast operations.
In 1970, O&M hired Carlotta Rossini as an assistant account executive in the account management department. Before working at O&M, Rossini had received a high school diploma and had taken several college courses but never had matriculated for studies leading to a bachelor's degree. Her prior work experience included a number of positions in advertising or fields related to advertising. Rossini worked for approximately one year for W.R. Simmons, Inc., supervising individuals doing field studies of magazine readership. Thereafter, she worked for 11 months for Marplan, Inc., a research subsidiary of the Interpublic Group, in a position which also required her to supervise the work of employees completing market research questionnaires regarding consumer preferences. In 1967, Rossini worked for two months as a media buyer at Wunderman, Ricotta & Kline, Inc., an advertising agency specializing in direct response, that is, consumer purchases through coupons in print advertising or a telephone number in broadcast advertising. She then worked as an account executive for Brownstone Associates, a small agency handling advertisements for restaurants and theaters. When that business disbanded due to financial problems, Rossini formed her own two-person agency where she worked from November 1967 through June 1970. At Rossini/Stevens Associates Inc., Rossini handled accounts including a book club, the Malagasy Republic and Bel Paese cheese. Prompted by difficulties procuring capital and her desire to work for a major ad agency, Rossini closed her firm and came to O&M in 1970.
At O&M, Rossini began work on the junior fashions and home sewing divisions of the Sears account under the supervision of Jim Himonas. In September 1970, she was promoted to account executive and within a few months began work on Sears home fashions. In November 1971, while continuing her work on the Sears accounts, Rossini also assumed responsibility for Owens-Corning Fiberglass, an account which entailed primarily trade advertising. About a year later, Rossini assumed additional responsibilities on the Cotton, Inc. account. After some time, she began to work exclusively on that account and in September 1974 was promoted to account supervisor on Cotton, Inc. During the last months of her work on Cotton, Inc., Rossini assumed responsibility for a rug cleaner called "Spray 'N" Vac," which was part of the Glamorene account.
In December 1974, Rossini was moved from Cotton, Inc. to full time work on Glamorene, with responsibility for "Drain Power," a relatively new drain cleaner being produced by that manufacturer. This was Rossini's first experience on an account for packaged goods, that is, consumer products purchased "off the shelf" in supermarkets or drug stores. The Drain Power product failed, and in March 1976, Rossini was reassigned to the service establishment division of the American Express ("Amex") account. That division produced advertising designed to encourage hotels, restaurants, airlines, and theaters to accept the American Express card and to encourage the public to use that card. Eventually she also assumed responsibility for the Amex service establishment division's advertising to retail stores.
In 1977 Rossini was elected vice-president of O&M and in April 1981 she was promoted to management supervisor with responsibility for the 1982 World's Fair in Knoxville, Tennessee. After that advertising campaign ended in 1982, Rossini was moved from the World's Fair account back to a management supervisor's position on the Amex account, where she has remained to the present.
I. O&M's Motion for Class Decertification
In a memorandum decision and order dated October 18, 1978, Judge Brieant denied a motion by plaintiffs Zukofsky and Rossini seeking certification of a plaintiff class.
Both were held to be inadequate class representatives under Rule 23, Fed. R. Civ. P., because at that time Zukofsky had not complied with the administrative prerequisites to a Title VII action and Rossini, as a vice president of O&M, was found to have a potential conflict of interest with the non-officer members of the putative class.
In a memorandum decision dated April 18, 1979, Judge Brieant adhered to his prior determination regarding Rossini's inadequacy as a class representative, but reversed his earlier decision regarding Zukofsky who, by late 1978, had complied with the Title VII administrative prerequisites. The court thereupon certified Zukofsky as representative of a class comprising "all females (excluding corporate officers) who are, have been, or will be, or were since May 30, 1975 employed by [O&M] as managers or professionals and who have been, are, continue to be or would be affected by the discriminatory practices of defendant."
In the fall of 1982, O&M moved to decertify the class on the basis of the Supreme Court decision in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982), issued subsequent to Judge Brieant's rulings. In General Telephone v. Falcon, the Supreme Court emphasized that a minority or female employee is not automatically an appropriate representative of an "across-the-board" class of minorities or women challenging all aspects of a Title VII defendant's employment practices:
We cannot disagree with the proposition underlying the across-the-board rule -- that racial discrimination is by definition class discrimination. But the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims.
Id. at 157 (footnotes omitted).
O&M argues that under the Falcon analysis, Zukofsky has failed to demonstrate that her claims are typical of, or raise questions of law or fact common to, the claims asserted on behalf of unnamed class members.
That argument is best analyzed by considering separately each type of claim raised by Zukofsky on her own behalf and on behalf of the class.
The court examines first the allegations of salary discrimination. Zukofsky claims that O&M, on the basis of her sex, paid her less money for the same work than it paid to a comparably-qualified man, Bill Williams, the only man in the twelve-person broadcast operations department.
She also alleges that she was paid less by virtue of her employment in a largely female department, purportedly deliberately segregated by O&M on the basis of gender. Plaintiffs argue that O&M also has paid less to unnamed class members than to similarly qualified men doing comparable or less responsible work and that O&M discriminatorily has depressed the salary of its female professional employees on a classwide basis.
A number of common factual and legal questions are presented by Zukofsky's salary claim and those of the class. For example, central to both the individual and the class claim is the question of whether the absence of fixed salary ranges for each job title served to depress women's wages in a discriminatory fashion. Similarly common issues are raised by the lack of objective salary criteria, i.e., fixed percentage or dollar increases based upon years of experience, level of formal education, account billings, or any factor readily determinable without reference to a supervisor's subjective evaluation of an employee.
A small committee, with relatively constant membership, had ultimate responsibility for the salary increase decisions affecting Zukovsky and the unnamed class members. Cf. General Telephone v. Falcon, supra, 457 U.S. at 162 n.1 (Burger, C.J., concurring) (typicality absent where failure to allege that individuals determining plaintiff's promotion also determined whether unnamed class members would be hired); Coser v. Moore, 739 F.2d 746, 750 (2d Cir. 1984) (Statistical evidence more significant in Title VII case "where a single office makes all the employment decisions").
Significantly, the statistical proof which formed the core of the class salary claim also was relevant to Zukofsky's individual claim as a possible indicator of O&M's alleged discriminatory intent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). That statistical evidence provides some indication of a pattern of salary disparity between men and women who are comparable with respect to certain job qualifications. See pp. 74-82 infra.10 The court need not decide at this point whether those statistics constitute a prima facie case of class-wide salary discrimination, but merely holds that they are sufficient to "support an inference that there exists a class in need of protection." Warren v. I.T.T. World Communications, Inc., 95 F.R.D. 425, 430 (S.D.N.Y. 1982); see Paxton v. Union National Bank, 688 F.2d 552, 562 (8th Cir. 1982), cert. denied, 460 U.S. 1083, 103 S. Ct. 1772, 76 L. Ed. 2d 345 (1983), quoting Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir.), cert. denied, 434 U.S. 856, 54 L. Ed. 2d 128, 98 S. Ct. 177 (1977) (typicality provision of Rule 23 requires a showing that "other members of the class have the same or similar grievances as the plaintiff.").
Plainly, given the variety of job titles at O&M, Zukofsky's salary claim will present some issues which are unique to her. As this court has noted, however,
the fact that the jobs performed by the named plaintiffs are, in some sense, unique, is not a bar to their being class representatives. If it were, no class of professional employees could ever be certified. See, e.g., Lo Re v. Chase Manhattan Corp., 431 F. Supp. 189, 196-97 (S.D.N.Y. 1977). . . . Moreover, "[i]t is not necessary that each and every issue be raised by each and every member of the class or class representatives." Vulcan Society v. Fire Dept. of City of White Plains, 82 F.R.D. 379, 401 (S.D.N.Y. 1979).
Meyer v. Macmillan Publishing Co., 95 F.R.D. 411, 414 (S.D.N.Y. 1982). As the Fifth Circuit stated in analyzing the General Telephone v. Falcon decision and approving the certification of hourly service workers as representatives of a class including salaried clerical workers, Rule 23 "does not necessarily require a "congruence" that a named plaintiff possess the employment qualifications of all purported class members." Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 617 (5th Cir. 1983); see Paxton v. Union National Bank, supra, 688 F.2d at 562 ("Typicality is not defeated because of the varied promotional opportunities at issue, or the differing qualifications of the plaintiffs and the class members").
In addition to meeting the four requirements of Rule 23(a), a putative class must also meet one of the three standards set forth in Rule 23(b).
That Judge Brieant certified the class pursuant to Rule 23(b)(3) is evident from his order directing notice to class members of their opportunity to "opt out" of the class. See Fed. R. Civ. P. 23(c)(2).
The court finds no basis for reversing Judge Brieant's implicit finding of the predominance of the common questions concerning the class salary claims and of the superiority of class action treatment of those claims. Accordingly, the court concludes that Zukofsky has moet the Rule 23 requirements with regard to the class salary claims and appropriately was certified as class representative for those claims.
Zukofsky also asserts a claim of discriminatory denial of transfer on behalf of herself and unnamed class members. Those transfer claims pertain to the ability of an O&M employee to move from a certain job title in one department to a different job title in another department or sub-department which entails work of a different nature. The transfer claims are to be distinguished from the promotion claims which center on the individual's ability to move to higher level positions in the same department involving work of generally the same nature.
O&M argues that Zukovsky's transfer claim is based primarily on a 1975 copy test evaluated by the creative department and therefore is a highly individualized claim not susceptible to class action treatment. Zukovsky contends that it was not simply O&M's evaluation of her copy test which prevented her from transferring into other, presumably more desirable, departments. Zukofsky points to O&M's failure to post jobs or to maintain a formal, centralized list of employees requesting transfers, and its failure to make such a list accessible to management considering filling vacancies or new positions. Finally, Zukofsky points to the lack of objective criteria for determining when an employee would receive, or even be eligible for, a transfer. Zukofsky contends that those policies and practices served to deny transfers to her and to unnamed class members in a similarly discriminatory fashion.
Zukofsky thus has raised a number of issues which are common to her transfer claims and to those which might be asserted by other professional women at O&M. That showing of commonality is not necessarily defeated by those factors peculiar to Zukofsky's own transfer claim. See p. 13 supra. The question remains whether, under the analysis of General Telephone v. Falcon, supra, and its progeny, Zukofsky has established the typicality of her transfer claim, i.e., that there are unnamed class members "in need of protection" with respect to that issue. See pp. 12-13, supra.
Zukofsky introduced no statistical studies directly considering the question of discrimination in transfers at O&M.
Instead, as part of their expert's initial report, plaintiffs proffered a breakdown by year of the numbers of male and female professionals having each job title within certain job families at O&M.
Plaintiffs also have indicated by year, for each job family, the average salaries for men and women, respectively, within the encompassed job titles. Plaintiffs' breakdown of O&M professional jobs indicates that during most of the period from 1975 to 1979, women appeared in the lower ranks of a number of major departments in percentages greater than their overall representation in the O&M professional workforce, which ranged from 46.4% female in 1975 to 55.7% female in 1979.
Similarly, in departments such as account management and creative, women occupied a lower percentage of high-level positions than their overall percentage at O&M.
In Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1018 (2d Cir. 1980), cert. denied, 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981), the Second Circuit noted that "a prima facie case [of race discrimination in violation of Title VII] may be made by showing that blacks are concentrated in the "lower paying, less desirable jobs . . . and were therefore discriminated against with respect to promotions and transfers." Teamsters v. United States, supra, 431 U.S. at 329, 337-38." Thus the above-described figures arguably could suggest that unnamed class members in the instant case seek to raise claims of discriminatory transfers.
Further examination of plaintiffs' gender breakdown of O&M job families, however, does not support the inference that Zukofsky's transfer claims are shared by other class members. It has been apparent from the early stages of this action that although it is O&M's policy initially to look within its own ranks to fill any vacancy, transfers between job titles occur primarily at the entry level, because the job skills for higher-level positions are learned largely by experience within the same department or job family. Since plaintiffs' breakdown of O&M's job classifications shows females to be over-represented in those entry level positions, those statistics do not suggest that there exists a class of women alleging discriminatory denial of transfers into those positions.
Plaintiffs, moreover, have not named any woman other than Zukofsky alleged to have been denied a transfer discriminatorily. No other class member testified that she believed she was denied a transfer on the basis of her sex or that O&M's transfer procedures had a disproportionately negative impact on her because of her gender.
The court concludes that even after trial of the individual and class claims, plaintiffs have failed to produce any eveidence that Zukofsky's transfer claim is typical of claims which would be raised by unnamed class members. See Warren v. I.T.T. World communications, Inc., supra, 95 F.R.D. at 429. The plaintiff class therefore must be decertified with resepct to the claim of discriminatory transfer.
Zukofsky also seeks to represent unnamed class members alleging discriminatory denial of promotion. O&M argues, in essence, that because Zukofsky has failed to establish an individual case of promotion discrimination, she presents no factual or legal issues common to promotion claims which might be asserted by unnamed class members. The court agrees that although Zukofsky's individual promotion claim is alleged in the complaint, it has been undisputed from the commencement of this action that Zukofsky did not make any effort to obtain, nor did she even want a promotion, that is, a higher position within her own department. Zukofsky thus has never introduced any evidence in support of an individual promotion claim which might be typical of the promotion claims of unnamed plaintiffs.
Zukofsky's failure to advance an individual promotion claim, however, is not necessarily fatal to her ability to represent unnamed plaintiffs alleging discriminatory denial of promotion. In the instant case, plaintiffs claim that discrimination in both transfers and promotion is manifested by or results from the absence of formal job descriptions and objective experience and educational requirements for particular job titles. Plaintiffs also argue that O&M's failure to post job openings and its failure to keep a centralized list of those employees seeking other positions within the agency serve to discriminate against females seeking promotions as well as females seeking transfers.
In General Telephone v. Falcon, supra, the Supreme Court remanded the action for a determination whether the named plaintiff, individually claiming promotion discrimination, could represent unnamed job applicants alleging discriminatory failure to hire. The Supreme Court gave examples of instances in which such representation would be permissible:
If petitioner used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 239a). Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.
Id. at 159 n.15 (emphasis in original).
Defendants argue, in effect, that the footnote of General Telephone v. Falcon, supra, quoted above creates two separate tests for determining when an individual challenging one employment practice can represent a class of individuals challenging another practice by the same employer. The determination of which test is appropriate, O&M contends, depends upon whether the named plaintiff and putative class members allege claims under the disparate impact theory or the disparate treatment theory.
O&M argues that both Zukofsky's individual transfer claim and the class promotion claims allege disparate treatment. O&M contends that under those circumstances footnote 15 of General Telephone v. Falcon, supra, requires plaintiffs to show "significant proof of a general policy of discrimination" before Zukofsky can serve as representative of a promotion class.
The court finds it unnecessary to determine whether such proof is the sole means by which the commonality and typicality requirements can be established by a named plaintiff complaining of one employment practice who seeks to represent unnamed plaintiffs alleging disparate treatment with respect to another employment practice by the same defendant. Because the class in this case was certified pursuant to Rule 23(b)(3), the class representative must establish not only the commonality and typicality requirements of Rule 23(a), but also must demonstrate that the common factual or legal questions predominate over any questions affecting only individual members of the putative class. See note 12, supra, at 108; see generally 3B Moore's Federal Practice P3.45. The court finds that the factual and legal issues common to Zukofsky's transfer claim and the class promotion claims, see p. 18, supra, do not predominate over those issues unique to the transfer claim and the promotion claims, respectively. The evidence establishes that in evaluating a candidate for promotion, O&M relies primarily on that individual's performance in his or her present job within the particular department or job family. In contrast, the performance of an applicant for transfer in his or her present position at O&M frequently bears little relation to that individual's likely success in an entry level position in a completely different department or job family. Accordingly, the most significant question with regard to the promotion claims would be O&M's allegedly discriminatory system for evaluation of a candidate's performance in his or her present position. Zukofsky's transfer claim, on the other hand, centers not upon the fairness of the evaluation of her work in broadcast operations, but rather upon the allegedly discriminatory barriers which prevented her entry into areas requiring different job skills.
The court concludes that on the basis of her transfer claim, Zukofsky may not serve as the representative of a Rule 23(b)(3) class alleging discriminatory promotions.Cf. Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333-34 (4th Cir. 1983), cert. denied, 466 U.S. 951, 104 S. Ct. 2154, 80 L. Ed. 2d 539 (1984) (named plaintiff alleging discriminatory discharge not appropriate representative of Rule 23(b)(2) class alleging discriminatory promotions, where promotion claims raised "significant issues of proof separate from those . . . implicated by the terminations claim.")
The court considers next plaintiffs' claim of discriminatory placement.Zukofsky asserts that because of her gender, O&M hired her into broadcast operations, an overwhelmingly female department allegedly characterized by poor pay and low mobility. Zukofsky contends that unnamed class members similarly were placed into largely female and less desirable departments at O&M.
O&M argues initially that Zukofsky cannot represent a class claiming discriminatory placement because she was "placed" in broadcast operations upon her hire in 1970 and the relevant limitations date is May 30, 1975.
That argument, however, misconstrues the nature of Zukofsky's claim. In her placement claim, Zukofsky objects not only to her initial hiring into the broadcast operations department, which was largely at her own behest, but to O&M's alleged maintenance of broadcast operations and numbers of other departments or sub-departments as largely sex-segregated units. Cf. Lewis v. Tobacco workers' International Union, 577 F.2d 1135 (4th Cir. 1978), cert. denied, 439 U.S. 1089, 99 S. Ct. 871, 59 L. Ed. 2d 56 (1979) (allegations that blacks continuously assigned to less desirable department to maintain its racial composition are cognizable under Title VII).
The discriminatory segregation allegedly suffered by Zukofsky purportedly results not only ;from O&M's decision to hire Zukofsky into broadcast operations, but also from the pattern of hires into or transfers out of that unit.
Zukofsky thus is asserting a continuing violation of Title VII, that is, "persistent discriminatory conduct in the context of ongoing employment relations, e.g., discriminatory layoffs and failure to recall . . . or refusals to promote. . . ." Carter v. Delta Air Lines, Inc., 441 F. Supp. 808, 812 (S.D.N.Y. 1977) (citations omitted). Such a continuing violation is distinct from the mere continuing impact or effect of a single employment decision prior to the relevant limitations date. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977); Malarkey v. Texaco, Inc., 559 F. Supp. 117, 120-21 (S.D.N.Y. 1982), aff'd, 704 F.2d 674 (2d Cir. 1983). The limitations issue therefore does not preclude Zukofsky from asserting her individual placement or sex-segregation claim and from serving as representative of unnamed class members asserting similar claims. See note 16, supra at 109.
Zukofsky's individual placement/sex segregation claim and such claims by unnamed class members necessarily share predominating common legal and factual issues. Central to all such claims is the proof of the existence of sex-segregated departments. Zukofsky, in asserting that the gender composition of her department reflected bias and not just chance, has adduced evidence regarding other departments and sub-departments allegecly reserved for women. Specifically, plaintiffs also have introduced evidence suggesting that certain job families, or groupings of O&M job titles are largely or exclusively female.
Those families include accounting (billing) which, for example, was 87% female in 1977; broadcast production services (business affairs), 100% female in 1977; broadcast production services (talent payments), 86% female in 1977; marketing services (local broadcasting), 86% female in 1977; marketing services (market research), 81% female in 1977; and personnel, 83% female in 1977.
The court finds such evidence sufficient to permit the inference that Zukofsky's placement claim is typical of those which might be asserted by unnamed plaintiffs in certain job families. The placement class as presently defined, however, is far too broad since many of its members are employed in job families in which, according to plaintiffs' own evidence, men are also well-represented. Accordingly, the definition of the class with respect to discriminatory placement/sex segregation must be narrowed to include only those members of the class, as originally defined, employed in job families having five or more employees which, for the years from 1975 to 1979, inclusive, were more than 80% female ("Class II").
Finally, Zukofsky claims that O&M has discriminated with regard to the training offered her and that offered unnamed class members. Title VII prohibits discrimination on the basis of gender in the administration of training programs. See Batyko v. Pennsylvania Liquor Control Board, 450 F. Supp. 32, 35 (W.D. Pa. 1978). Zukofsky has not suggested, through allegation or evidence, how O&M discriminated against her with regard to training opportunities. For example, she has not pointed to any O&M training program where she or other women employees were rejected or discouraged from participation.
The evidence does indicate that most employees at O&M receive on-the-job training because their superiors explain tasks and supervise job performance.Within the account management department, the nature of the on-the-job training appears to vary according to the nature of the account, that is, of the product or service being advertised. Plaintiffs have alleged that O&M discriminatorily denied women opportunities to work on certain types of accounts in which account management staff receive purportedly more valuable on-the-job training. There is no suggestion, however, that training discrimination resulted from differential account assignment within Zukofsky's department, or in any other manner which affected her individually.
Zukofsky thus has not suggested any issues common to her training claim and those of unnamed class members other than the broad question of whether O&M discriminated against women with regard to training. As indicated in the discussion of General Telephone v. Falcon, see p. 10, supra, such a showing is insufficiently specific to meet the requirements of Rule 23. Neither has Zukofsky alleged any factual or legal issues shared by her other individual claims and the training claims of the unnamed plaintiffs. The court concludes that the class alleging discrimination in training opportunities must be decertified.
II. Rossini's Individual Claims
Rossini alleges that throughout her career at O&M, the agency has discriminated against her with respect to salary, training, account assignments, and promotion. Rossini further contends that O&M limited her employment opportunities in retaliation for her having filed an EEOC charge and this action. the court will consider first the allegations of discriminatory denial of training opportunities, since O&M alleges Rossini's lack of on-the-job experience in certain areas as a defense to many of her claims. The court next will consider together the purportedly discriminatory assignments and promotions, since the evidence establishes that promotions in the account management department frequently resulted from lateral assignment to an account likely to require higher level staffing. Finally, the salary and retaliation claims will be discussed.
A. Burdens of Proof and Production for Training and Assignment/Promotion Claims
Rossini's training, assignment and promotion claims are asserted under the doctrine of disparate treatment, that is, she contends that O&M deliberately denied her those employment opportunities because of ther gender. See footnote 20, supra. In McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, the Supreme Court, in the context of an allegedly discriminatory refusal to hire, stated that a plaintiff could establish a prima facie case of disparate treatment in violation of Title VII by demonstrating:
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
Those standards have been applied to allegations of discriminatory denial of promotion or of training opportunities. See Betts v. Sperry Division of Sperry Rand Corp., 556 F. Supp. 562 (E.D.N.Y. 1983); Adams v. Gaudet, 515 F. Supp. 1086, 1095 (W.D. La. 1981); Brazer v. St. Regis Paper Co., 498 F. Supp. 1092, 1097-98 (M.D. Fla. 1980).
Once the plaintiff has established a prima facie case, the defendant employer then assumes the burden of production, that is, of articulating, through admissible evidence, a "clear and reasonably specific" legitimate, non-discriminatory reason for disfavoring plaintiff. See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. 248, 255 & n.9. (1981).However, "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). thus, if the defendant has met its burden of production, the court need not determine whether plaintiff has established a prima facie case, but rather must proceed to determine the ultimate question of whether "the defendant intentionally discriminated against the plaintiff." Id. (quoting Texas Department v. Burdine, supra, 450 U.S. at 253).
With regard to the Title VII defendant's burden of production, the Second Circuit recently stated:
Moreover, the evidence produced by the employer [to rebut a prima facie case] should be objective and competent. Subjective evaluations are not adequate by themselves because they may mask prohibited prejudice. Knight v. Nassau County civil Service Commission, 649 F.2d 157, 161 (2d Cir.), cert. denied, 454 U.S. 818, 70 L. Ed. 2d 87, 102 S. Ct. 97 (1981); see Crawford v. Western Electric Co., 614 F.2d 1300, 1313-17 (5th Cir. 1980); United States v. N.L. Industries, Inc., 479 F.2d 354, 372 (8th Cir. 1973). Objective competent evidence may consist of the required qualifications for the subject position measured against plaintiff's qualifications including background in the relevant field. Knight, 649 F.2d at 161. Such criteria do not become subjective simply because they are evaluated by plaintiff's superiors. Id.
Sweeney v. Research Foundation of the State University of New York, 711 F.2d 1179, 1185 (2d Cir. 1983). Once a Title VII defendant has made such a showing, the plaintiff, who retains the burden of persuasion throughout the proceeding, then must "demonstrate that the proffered reason was not the true reason for the employment decision . . . either directly by persuading the court that the discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence." Texas Department v. Burdine, supra, 450 U.S. at 256.
This court has described as follows some of the factors relevant to the issue of pretext:
The reasonableness or lack thereof of the employer's explanation is probative in this regard. See Loeb v. Textron, Inc., 600 F.2d [1003,] 1012 n.6 [(1st Cir. 1979)]. Thus, "[t]he more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as pretext." Id. For example, evidence that the claimant was considerably more qualified for the contested position than the person selected would be probative of pretext because it is unlikely that an employer would exercise its good faith business judgment in such a manner. See Aikens v. United States Postal Service Board of Governors, supra, 665 F.2d at 1959-60; Lieberman v. Gant, 630 F.2d 60, 67-68 (2d Cir. 1980). Conversely, the lack of a significant discrepancy between the qualifications of the claimant and the successful applicant would not be probative of pretext because an employer may choose from among several qualified candidates without violating [the equal employment laws]. See Burdine, supra, 450 U.S. at 259, Murphy v. Middletown Enlarged City School District, 525 F. Supp. 678, 693, 707 (S.D.N.Y. 1981). Another example of pretext would be if the employer claimed it did not select an employee for a particular position because its records indicated he had not applied, and plaintiff adduced credible evidence that the employee did apply.
EEOC v. Trans World Airlines, Inc., 544 F. Supp. 1187, 1220 (S.D.N.Y. 1982).
Evidence of pretext also may include statistical evidence regarding the defendant's workforce. See p. 12 supra; Rodriguez v. Board of Education of Eastchester Union Free School District, 620 F.2d 362, 367 (2d Cir. 1980).
Before the court reaches the consideration of specific assignments and promotions allegedly denied Rossini because of her gender, it must consider Rossini's claim of discriminatory denial of the on-the-job training that an account management employee receives by virtue of his or her assignment to a particular account. O&M, in defending its assignment and promotion decisions, frequently cites the experience of the chosen employee on product accounts similar to the account at issue. In particular, O&M has asserted that prior successful packaged goods experience is relevant to an account management employee's success on a new packaged goods assignment. Rossini does not dispute that experience on similar accounts is a criterion relevant to account management staffing decisions. She alleges that because the best account assignments, including packaged goods, have been denied to women, consideration of such experience perpetuates past discrimination.
Initially, O&M argues that the statute of limitations precludes consideration of any account assignment prior to May 30, 1975. As discussed note 16, supra at 109, however, liability in this action may be premised upon discriminatory employment practices occurring before that date, if such practices form part of a continuing pattern of discriminatory conduct. Moreove,r even if account assignments prior to that date are not part of such a pattern, they still may be considered as "relevant background evidence" to the allegedly discriminatory practices appropriately before the court. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 558. The court concludes that, at a minimum, it may consider information regarding earlier assignments as background evidence relevant to Rossini's post-May 1975 assignment/promotion claims.
Claims of disparate treatment in training opportunities, such as that raised by Rossini, have been analyzed under the McDonnell Douglas model. See Brazer v. St. Regis Paper Co., supra, 498 F. Supp. at 1097-98 (M.D. Fla. 1980). In the instant case, O&M claims that prior to 1975, it assigned Rossini to non-packaged goods accounts largely because those accounts became available at times when Rossini needed additional responsibilities. As the Second Circuit emphasized in Sweeney v. Research Foundation, supra, 711 F.2d at 1187 n.11, in the absence of evidence of discrimination, "an employer must have freedom to run its organization efficiently. While the employee's wishes should be taken into account in the employer's decisionmaking, they do not govern."
Rossini has cited Connecticut v. Teal, 457 U.S. 440, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982) and argued that even if O&M favored some women in, for example, the assignment of accounts with packaged goods training potential, the agency nevertheless is not relieved from liability for its alleged discrimination against her in that area. In Teal, the Supreme Court held that a racially-balanced work force did not relieve an employer from liability to a minority employee adversely affected by a test shown to have disparate impact on minorities. The Supreme Court noted that Teal involved a disparate impact claim which did not require a showing of intent. In a disparate treatment case, such as Rossini's training claim, in contrast, "an employer's good faith efforts to achieve a nondiscriminatory work force, might . . . assist an employer in rebutting the inference [necessary to liability] that particular action had been intentionally discriminatory. . . ." Id. at 454. The court, therefore, finds that evidence of gender-neutral assignments of accounts to other O&M staff is relevant to the issue of the allegedly discriminatory denial of packaged goods experience to Rossini.
Testimony by a number of female accouant management employees therefore lent support to O&M's argument that it did not discriminatorily deny Rossini packaged goods experience prior to 1975. Ann Iverson, Rochelle Lazarus, and Sharon McGavin all testified to their work on O&M packaged goods accounts in or before 1976. Although Rossini submitted figures indicating other women working in account management from 1970 to 1976, she adduced no other examples of women discriminatorily denied packaged goods experience. In addition, several men who began work at O&M around the time Rossini did and with whom she compares herself spent a significant portion of theri time on non-packaged goods accounts. Bob Haller, for example, worked on the Sears home appliances and home entertainment accounts. Henry Ferris, after an initial assignment to Maxwell House and Maxim coffees, took on responsibility for the Rex Restaurant account. In April 1971, Ferris began work on the Cunard Lines account where he continued for the next several years. Bob White spent most of his first ten years at O&M on accounts such as Sears, Shell Oil, and Cotton, Inc.
Moreover, Rossini herself noted in a December 1975 memorandum to Francis Houghton, then the personnel director at O&M, that the agency's "non-package[d] goods clients outnumber those in package[d] goods by almost 3 to 1." Those figures suggest a non-discriminatory basis for Rossini's assignments to non-packaged goods accounts, that is, that O&M simply had more available positions on non-packaged goods accounts. She also stated (emphasis added) "[w]e all agree that my best prospects are in the non-package[d] goods accounts . . .," thereby indicating, at least to some degree, her accession in O&M's assignment decisions.
O&M also alleges Rossini's poor performance in 1975 on the Drain Power account as the agency's reason for denying her thereafter packaged goods work and the consomitant on-the-job training. Allen Clark, a management supervisor on Drain Power's parent account, Glamorene, rated Rossini's performance on Drain Power from October 1974 through October 1975 as category 4, "marginal performance in present assignment," although she had received higher evaluations in all her previous work at O&M. Clark wrote that Rossini lacked "numerical ability. In turn, her knowledge of package goods marketing is weak. Further, she had great difficulty retaining the key facts of our client's market and brand (e.g. Nielsen, [a survey of consumer preference] research). this in turn affected the quality of her judgment in related areas."
Rossini attacks as suspect the subjectivity of such an evaluation. "It is true that an employer may not use wholly subjective and unarticulated standards to judge employee performance for purposes of [job advancement]." Knight v. Nassau County, supra, 649 F.2d at 161.The standards applied by Clark, however, while necessarily evaluated in a subjective manner, are not so idiosyncratic or unclear as to deprive Rossini of a fair opportunity to rebut the charges of her inadequate performance.
Rossini has introduced evidence which she claims indicates her skill in the numerical aspects of account management, thereby purportedly demonstrating the pretextual nature of Clark's criticism. She also argues that much of Clark's criticism simply masked his disagreement with her strategy to emphasize the safety features of Drain Power, a strategy which if implemented, Rossini contends, might have saved the failing product.
Specifically, Rossini cites a November 1975 letter she wrote to Glamorene reporting O&M's revised Nielsen projections for Drain Power and other drain cleaners. Rossini argues that a high level account management employee noted on that letter that Clark had rejected any changes in its format. Rossini contends that the indication shows that Clark had approved the letter and that his subsequent criticism of her ability to analyze such data was a pretext for sex discrimination. It appears from the notation on the November 1975 letter, however, that Clark simply had agreed with Rossini's lengthy recitation of the figures, but not that he thereby had approved whatever analysis of data the letter contained. Moreover, William Weed, Clerk's supervisor on the Glamorene account, testified that the November 1975 letter did not reflect Rossini's analysis or "viewpoint" with regard to the Nielsen study or a safety strategy for the product. Weed cited the last paragraph of the letter: "Hopefully, our startup of advertising . . . with the guarantee strategy, combined with your promotional activities, will deter further losses. . . ." He concluded that an appropriate letter recommending a change in strategy "would take quite a different form. . . . Changing the strategy on a brand is a major issue, and [the letter] would start out by saying that that's what it was undertaking to do, and it would make a specific recommendation to that effect and present the supporting evidence." The court concludes that Rossini has not established the November 1975 letter to be an example of the numerical/analytical skills which Clark contended she lacked.
Rossini also submitted her April 1976 letter to Glamorene discussing "DART tests," a statistical report of consumer response to drain cleaner commercials. That letter was graded "A" in a notation by Charles Fredericks, Clark's supervisor at that time. Rossini again contends that such a notation by a high level account management official proves that she actually did possess the skills in question. However, there was no testimony by Fredericks indicating exactly what he was approving with the "A" grade. Weed testified that the April 1976 letter touched on strategy only in the summary and conclusion. He added:
A. And the last sentence says, "We hope," -- again, it's hope, not fact or conviction, "We hope the upcoming split run copy test will give us a definitive answer."
So it really relies on the upcoming copy test to give an answer on safety. That's the only time we see "safety" mentioned.
Q. Both letters [the November 1975 and the April 1976] concluded on ...