Cicirello v. New York Telephone Co.

123 F.R.D. 523, 1989 U.S. Dist. LEXIS 100, 49 Fair Empl. Prac. Cas. (BNA) 494, 1989 WL 1402
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 4, 1989
DocketCiv. No. 86-3366
StatusPublished
Cited by10 cases

This text of 123 F.R.D. 523 (Cicirello v. New York Telephone Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cicirello v. New York Telephone Co., 123 F.R.D. 523, 1989 U.S. Dist. LEXIS 100, 49 Fair Empl. Prac. Cas. (BNA) 494, 1989 WL 1402 (E.D. Pa. 1989).

Opinion

MEMORANDUM

LOUIS H. POLLAK, District Judge.

Plaintiff brings the present action, for reinstatement and back pay to redress an alleged violation of a 1974 consent decree (the “Decree”) that resolved a class sex discrimination in a case entitled in Brennan v. American Telephone and Telegraph Co., Civ. No. 74-1342 (E.D.Pa. May 30, 1974). Plaintiffs in Brennan were Secretary of Labor Peter Brennan, the Equal Employment Opportunity Commission, and the United States of America; defendants included numerous constituents of AT & T, including New York Company, the named defendant in the present action.1 The Decree included directives for evaluation of jobs and assignment of minimum salary levels and back pay awards to specific employees.

Defendant has moved to dismiss plaintiffs action for, inter alia, lack of standing, lack of jurisdiction,2 laches, as failing to state a claim under the Decree, and preclusion by the final judgment entered in the action of Cicirello v. New York Telephone Co., Civ. No. 83 Civ. 3114 (S.D.N.Y. Oct 10, 1984), aff'd, 762 F.2d 990 (2d Cir. 1985). After oral argument, I allowed discovery on the question of laches and delayed disposition of the motion pending receipt of further briefing on both the claim of laches and on the threshold question of plaintiff's standing. Defendant's motion to dismiss plaintiff’s amended complaint3 is now ripe for disposition.

Plaintiff claims that she has standing to bring this action to enforce its provisions because she was employed by the defendant during the period in which the Decree was in effect. Specifically, plaintiff pleads that she was “one of the individuals who was covered by the Decree as having been discriminated against in job assignment, salary level, and promotion opportunities on the basis of her sex.” Amended Complaint, ¶ 11. Plaintiff argues that she would have been in the group of management employees expressly referred to in the Decree as entitled to back pay had not defendant, in an allegedly intentional effort to deprive her of the benefits of the Decree, demoted her to an ineligible position prior to the execution of the Decree. She thus claims to be in the narrow category of persons who were, by explicit terms of the [525]*525Decree, to have benefited directly from the back pay provision.

Initially, this court is confronted with the question of plaintiffs standing, as a non-signatory to the Decree, to bring this action to enforce the Decree.4 For, assuming arguendo that plaintiff does belong to the narrow category of persons intended to benefit directly from the Decree, it is far from settled whether, in a case of this kind, a non-party beneficiary of a consent decree has standing to enforce the decree.

In a securities case, Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court observed that “a well-settled line of authority ... establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.” Id. at 750, 95 S.Ct. at 1932 (citing, among other cases, United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971) (antitrust action)). The rationale for this observation had been expressed below in Judge Hufstedler’s dissent: Judge Hufstedler pointed out that the potential exposure to litigation by allowing standing to nonparties would seriously impair settlement of litigation, an end that she found outweighed the interest of nonparty litigants in obtaining direct vindication of private interests. Manor Drug Stores v. Blue Chip Stamps, 492 F.2d 136, 144 n. 3 (9th Cir.1974) (Hufstedler, J., dissenting).-

However, the courts of appeals are in disagreement as to whether the Blue Chip rule should apply to nonparty beneficiaries of consent decrees affecting civil rights. The Second Circuit has suggested that non-party prisoners who would benefit from a stipulation settling an action of other prisoners might have standing to enforce the stipulation. Lasky v. Quinlan, 558 F.2d 1133, 1137 (2d Cir.1977).5 Two district courts in the Second Circuit have allowed third party standing to enforce employment discrimination consent decrees. See Virgo v. Local Union, 107 F.R.D. 84, 91 (S.D.N.Y.1985) (distinguishing civil rights cases from securities and antitrust cases for the purposes of third-party standing); Byrd v. Long Island Lighting Co., 565 F.Supp. 1455 (E.D.N.Y.1983). The Seventh Circuit has also found that union members have a cause of action as the third party beneficiaries of a consent decree entered by their union, Jones v. Local 520, 603 F.2d 664 (7th Cir.1979),6 and the Federal Circuit has extended third party standing to water purchasers to enforce a consent decree governing water allocation between the United States and the Bureau of Reclamation, H.F. Allen Orchards v. United States, 749 F.2d 1571 (Fed.Cir.1984).

In contrast, district courts in the Third, Sixth, and Ninth Circuits have denied standing to plaintiffs seeking to enforce consent decrees entered in cases brought by the EEOC. See Wilson v. Bell Telephone Co., Civ. No. 75-441 (E.D.Pa. Jan. 10, 1978); Mullins v. South Central Bell Telephone Co., Civ. No. 1-77-127 (E.D. Tenn. Feb. 20, 1979); Equal Employment Opportunity Comm’n v. Local Union No. 3, 416 F.Supp. 728, 732 (N.D.Ca.1975) (Peckham, C.J.) (denying standing to non-party beneficiaries to the decree, but allowing their participation in proceedings as a friend of the court).

The consent decree that formed the basis of the race and sex discrimination claims in both Wilson and Mullins was formed in Equal Employment Opportunity Comm’n v. American Telephone & Telegraph, Civ. 73-149 (E.D.Pa. Jan. 18, [526]*5261973), a case involving the same parties and issues, but addressing non-management employees. Significantly, this decree uses exactly the same enforcement language as the Decree in the present case uses. In denying the claim made pursuant to the consent decree in Wilson, Judge VanArtsdalen drew directly from the Supreme Court’s reasoning in Blue Chip Stamps: “[A] consent decree is more akin to a judgment order than a private contract and only parties to a judgment have standing to seek or challenge its enforcement.” Wilson, slip op. at 4. The court thus concluded that “though it is clear Bell employees such as plaintiffs were intended beneficiaries of the AT & T consent decree, plaintiffs were not parties to that decree and as such have no standing to seek its enforcement.” Id.

To the extent that Wilson purports to find in Blue Chip Stamps

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123 F.R.D. 523, 1989 U.S. Dist. LEXIS 100, 49 Fair Empl. Prac. Cas. (BNA) 494, 1989 WL 1402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cicirello-v-new-york-telephone-co-paed-1989.