through compliance with certain minority enrollment and staff percentages. The orders do not consider or deal with the question of the proper method of furloughing or suspending professional employees when decreases in staffing requirements occur. With respect to the professional staff, the orders deal exclusively with hiring practices of the School District. Therefore, the defendants cannot use the court orders to validate any discriminatory employment practices with respect to suspensions, furloughs or dismissals of professional employees.
Another bar to the collateral estoppel use of the Commonwealth Court Orders is the lack of privity of interest between plaintiffs and the parties to the consent decree. Scooper Dooper, supra. The third party interests of plaintiffs were not represented prior to the issuance of the Commonwealth Court orders. Even though plaintiffs are employees of the Erie School District, a party to Commonwealth Court action, we do not consider the relationship so close as to constitute an identification of interest with resultant succession to the same legal rights and obligations the District realized by the court orders. See Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950).
We conclude defendants' actions are neither mandated nor protected by the Commonwealth Court orders. Therefore, we shall deny defendants' Motion for Summary Judgment.
Plaintiffs also move for summary judgment claiming defendants practiced an unlawful discriminatory employment practice by furloughing plaintiffs in a manner contrary to the existing seniority list. In reducing its force the Board omitted certain minority group members of less seniority than other white employees who were furloughed.
In the framework of the Civil Rights Act of 1964, Title VII, Section 701 et seq., 42 U.S.C. § 2000e et seq., bona fide seniority systems--systems facially neutral and neither intended nor designed to disguise discrimination or continue the effects of past dscrimination--are free from attack as being unlawful discrimination. Franks v. Bowman Transportation, 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976). The fact that plaintiffs' theory of recovery is premised on §§ 1981 and 1983 rather than Title VII, does not make furloughing according to the existing seniority list any more susceptible to attack. Chance v. Bd. of Examiners2 534 F.2d 993 (2d Cir. 1976); Dickerson v. U.S. Steel Corp., 439 F. Supp. 55 (E.D. Pa. 1977).
Neither the Commonwealth Court orders nor the Findings of Fact, Conclusions of Law and Final Order of the Pennsylvania Human Relations Commission (referred to in the court orders) make reference to a finding of past discrimination with respect to the Board's hiring of professional employees. The proceedings which led to the Commonwealth Court orders were limited to correcting a "racial imbalance" in the Erie school system. A "racially imbalanced" school, as defined by the Pennsylvania Human Relations Commission is "one whose concentration of Negro or white pupils is disproportionate to the enrollment of that particular racial group in all of the schools of the school district in the same grade span." (emphasis added). Finding of Fact, Docket No. P-703, Pa. H.R.C. at 4.
Therefore, it has not been shown that the seniority system utilized by the School District departs from the bona fide systems protected by Franks v. Bowman, supra, and its progeny. The action of the Board cannot be characterized as an attempt to correct conditions resulting from past discrimination in recruitment of professional staff. In furloughing, defendants must abide by the order of furlough found in the existing seniority list despite any good faith attempts to attain a racial balance in its professional employee workforce.
Because we feel that defendants improperly furloughed plaintiffs we shall grant plaintiffs' motion for summary judgment. However, in their answer, defendants claim that plaintiffs have suffered no damage because of the furloughs.
There are eleven plaintiffs to the present action. All plaintiffs, however, do not stand in the same position with respect to a right of recovery: not all have been damaged.
The School District furloughed at least eleven members of its professional staff in June, 1976. All of plaintiffs are included in this eleven. At that time the seniority roster which included these eleven read as follows:
Date of Date of Regular
Kelm 10/8/73 10/9/75
Henry 10/8/73 10/9/75
Camesi 10/29/73 10/3/75
Elliott 2/5/74 2/6/76
Bacica 2/18/74 2/19/76
Tuzynski 3/12/74 3/15/76
MANUS * 3/22/74 3/24/76
Ferragine 4/1/74 8/26/76
DOBBS * 8/28/74 8/26/76
KELLY * 8/28/74 8/ /76
Globa 8/28/74 8/28/76
Polito 8/28/74 8/28/76
HARPER * 8/28/74 1/24/77
Johnson 8/28/74 1/24/77
Pontiff 9/30/74 1/24/77
MYERS * 2/3/75 2/4/77
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