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June 7, 1978


The opinion of the court was delivered by: WEBER


 AND NOW this 7th day of June, 1978, in accordance with the findings and conclusions contained in the attached Opinion;

 IT IS ORDERED that JUDGMENT is ENTERED for the DEFENDANTS on the claims of Plaintiffs Elizabeth Bacica, Roseanne Camesi, Gail Elliott, Robert Ferragine, Katrina Henry, Kathleen Polito, Lucy Pontiff and Amber Tuzynski and said claims are DISMISSED;

 IT IS FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment is GRANTED to the extent provided herein. It is declared that the acts, policies and practices of the Defendants in granting greater seniority to black employees of the Erie School District and changing plaintiffs' positions on the seniority list is illegal and contrary to the requirements set forth in the United States Constitution and statutes, as being a denial of equal protection and a violation of 42 U.S.C. §§ 1981 and 1983. Defendants' Motion for Summary Judgment on the ground of a state court order is DENIED.

 IT IS FURTHER ORDERED that Plaintiff Virginia Kelmn be awarded $30.00 from Defendants for reimbursement of her dental benefits claim.

 IT IS FURTHER ORDERED that Plaintiff Sandra Globa be awarded from Defendants two days back pay, and Plaintiff June Johnson be awarded from Defendants five months back pay, subject to mitigation by income received during that period from other sources. The parties shall file a stipulation with respect to the amount of damages to be awarded Globa and Johnson on or before June 19, 1978, or notify the Court of any inability to agree thereon.

 IT IS FURTHER ORDERED that no attorney fees shall be awarded Plaintiffs.

 IT IS FURTHER ORDERED that the above-entitled action shall be DISMISSED upon receipt of the above Stipulation.

 GERALL J. WEBER United States District Judge


 Plaintiffs in the above-entitled case are white teachers and employees of the City of Erie School District. Plaintiffs seek equitable and declaratory relief and compensatory and punitive damages under 42 U.S.C. §§ 1981 and 1983 because of their suspension or furlough by defendants in an order favoring minority employees and different from the order required by defendants' seniority list. The suspensions and furloughs were the result of a reduction in force of defendants professional employees because of declining enrollment.

 Plaintiffs claim the action of the Board of Education of the School District of the City of Erie (Board) constitutes a discriminatory employment practice which denies plaintiffs their right to make and enforce contracts and deprives them of a property interest without due process of law.

 In defense the Board contends plaintiffs have suffered no loss or impairment of any rights because of the furloughs. Defendants also claim their actions are the result of a good faith attempt to comply with an Order of the Commonwealth Court of Pennsylvania and therefore the Board's actions in furloughing the plaintiffs cannot be made the basis of any claim for damages.

 Presently before the Court are the motions for summary judgment filed by each side and accompanied by supporting briefs. The parties have also filed extensive stipulations and other evidentiary materials with respect to the summary judgment determination. Evidence relevant to our determination of summary judgment was also introduced at an evidentiary hearing held on the motions. An evidentiary hearing was necessary because of the insufficiency of the evidentiary material submitted to identify the individuals affected by the board action and to determine the existence of damages to any individual plaintiff.

 Despite the mass of evidentiary materials offered by both sides in support of and in opposition to the cross motions for summary judgment, we feel this matter is proper for determination at the summary judgment stage of the proceedings. After considerable effort by the court in an attempt to distill the facts in controversy to their essence, it appears no dispute exists with respect to the material facts underlying plaintiffs' claims. The only controversy involves questions of law which are subject to summary disposition.

 Defendant School Board sets forth as the basis for its motion, and, inter alia, in defense of plaintiffs' motion, that it is following an order of the Commonwealth Court of Pennsylvania directing them to furlough or suspend plaintiffs in an order contrary to the existing seniority list and in favor of minority teachers with less seniority than plaintiffs. In their brief, defendants claim that "since there can be no question as to the propriety of a judicial order which directs reverse discrimination . . ., summary judgment must be granted in favor of the defendant."

 For several reasons we do not feel the Commonwealth Court Order of May 3, 1972, as supplemented by the Order of April 29, 1975, controls defendants' actions with respect to the furloughs of plaintiffs.

 The Commonwealth Court's Order was pursuant to and the result of an agreement between the parties to the Order. By the consent decree of May 3, the Court merely approved a stipulation entered into by the parties. *fn1"

 We recognize the possible collateral estoppel effect of consent decrees in certain situations, Rodriguez v. E. Tex. Motor Freight, 505 F.2d 40 (5th Cir. 1974), reh. denied 518 F.2d 1407 (5th Cir. 1975), cert. granted 425 U.S. 990, 96 S. Ct. 2200, 48 L. Ed. 2d 814 (1976), vacated on other grounds 431 U.S. 395, 97 S. Ct. 1891, 52 L. Ed. 2d 453 (1977), aff'd 560 F.2d 1286 (5th Cir. 1977); Seaboard Air Line RR Co. v. McCourt Trucking, 277 F.2d 593 (5th Cir. 1960); See: Moore, Moore's Federal Practice para. 0.444[3] 2d ed. 1976; James, "Consent Judgments as Collateral Estoppel" 108 U.Pa. L. Rev. 173 (1959). We do not, however, feel the Commonwealth Court orders may be given collateral estoppel effect in this matter.

 The language of the decree and the conduct of the parties in failing to raise the reduction in force situation in the stipulation demonstrates that the issue was never intended to be covered by the court orders. Prior judgments can only be introduced for collateral estoppel purposes if the issues sought to be precluded were actually raised and litigated in the prior action. Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583 (3d Cir. 1975); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974).

 The Commonwealth Court orders address the question of affirmative action on behalf of the School District in planning a completely integrated school system 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 Initial Professional Hiring Contract 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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