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AMERICAN FEDN. v. CITY OF NEW YORK

December 27, 1984

AMERICAN FEDERATION OF STATE COUNTY and MUNICIPAL EMPLOYEES AFL-CIO (AFSCME), CHAPPELLE, et. al., Plaintiffs, against The CITY of NEW YORK, et. al., Defendants.


The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiffs brought this class action, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., against the City of New York, the Major of New York and certain departments of the city government (the "city defendants"), alleging sex and race based discrimination in wages, promotion and other terms and conditions of employment. The named plaintiffs are representatives for a class of "all employees employed within the applicable limitations period by the City of New York in the classification of Police Communications Technician (PCT) and Supervising Police Communications Technician (SPCT)." Complaint at P3. *fn1" The acts of discrimination alleged are that defendants: (1) maintain job classifications and assign jobs on the basis of race and sex; (2) discriminate on the basis of race and sex "by compensating PCTs and SPCTs who are predominantly female and minority less than Fire Alarm Dispatchers (FADs) and Supervisory Fire Alarm Dispatchers (SFADs) who are predominantly male and white and whose duties are substantially equal and/or require an equivalent or lesser composite of skill, effort, responsibility and working conditions . . ."; (3) discriminate on the basis of race and sex in determining promotions from PCT to SPCT; and (4) discriminate on the basis of race and sex in other terms and conditions of employment. Complaint at P4(a)-(d). *fn2"

 On August 1, 1984, defendants filed an answer to the complaint. The answer includes a counterclaim for contribution or indemnification against the unions. The counterclaim alleges:

 In the event the City is found liable to have discriminated against plaintiffs in violation of Title VII, union plaintiffs are responsible in whole or part in that they caused or attempted to cause defendants to discriminate against plaintiffs in that it caused or attempted to cause defendants to discriminate [sic] in violation of 42 U.S.C. Section 2000e-2(a) and (c).

 Answer at P28. The plaintiff unions have moved to dismiss the counterclaim.

 DISCUSSION

 Under the doctrine of contribution, one tortfeasor seeks to avoid paying more that his proportionate share of liability by joining another tortfeasor who is also partly liable for the plaintiff's loss. In Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981), the Supreme Court held that an employer found liable to its employees under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, has no statutory or common law right to contribution from unions which allegedly bear partial responsibility for the statutory violations. The Court stated that am employer's right to contribution could only arise under two theories: (1) as an implied right of action under the statute; or (2) under federal common law.

 Defendants do not have an implied right of action for contribution under Title VII. In Northwest Airlines, the Supreme Court examined the "language of the statute itself, the legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supercede or to supplement existing state remedies." Northwest Airlines, supra, 451 U.S. at 91. The Court found no manifestation of a congressional intent to create an implied right to contribution under Title VII. Accordingly, the statute does not provide the defendants herein with an implied right to contribution against the unions.

 Defendants contend that the court, under its equitable powers, should fashion a common law cause of action for contribution against the unions. In Northwest Airlines, however, the Court expressly declined to "add a [common law] right to contribution to the statutory rights that Congress created in the Equal Pay Act and Title VII." Id. at 98. The Court stated that Title VII constitutes "a comprehensive legislative scheme" that includes "an integrated system for enforcement," id. at 97, and "[t]he Judiciary may not, in the face of such comprehensive legislative schemes, fashion new remedies that might upset carefully considered legislative programs." Id.

 Defendants contend that Northwest Airlines is distinguishable because the defendant there brought an independent action for contribution against the union. In contrast, the employer in this case has counterclaimed against the unions. Defendant refers the court to the unpublished opinion in Connecticut State Employees Ass'n [CSEA] v. Connecticut, Civ. Action No. H79-197 (D. Conn. November 18, 1981) (Claire, C.J.). In CSEA the court stated:

 The Supreme Court's reasoning in Northwest Airlines does not support the plaintiff's claim that defendants' counterclaim should be dismissed at this state of pretrial discovery. The teaching of Northwest Airlines does not extend to situations where the employer counterclaims in a suit establishing liability between it and the plaintiff union. The Court will not permit the union, merely by bringing the employment discrimination action on behalf of its female members to insulate itself from liability for sex discrimination.

 Id. at 4.

 The Court does not find the reasoning of CSEA persuasive. There is no danger of the union "insulating" itself from claims of employees for sex discrimination, by bringing an employment discrimination action on behalf of the employees. By merely taking the initiative in filing suit against the employer, the union is not immune to liability either in the same action or in a separate action for its own wrongdoing. *fn3" All the union is insulated from is a claim for contribution by the defendant employer. According to the Supreme Court in Northwest Airlines, this is exactly the legislative scheme Congress enacted. If no claim can be asserted for contribution against unions in a separate action, Northwest Airlines, supra, and no claim for contribution may be asserted when the union is a defendant in the same ...


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