
    Bessie HANNAHS, Plaintiff, v. NEW YORK STATE TEACHERS’ RETIREMENT SYSTEM; Kenneth E. Buhrmaster, Hiram Korpeck, Nicholas Maletta, Frank Wells McCabe, Ellis Ostrove, Richard E. Ten Haken, Carl Fredeen, Roderick Sager and Margaret Mary Walsh, individually and as members of the New York State Teachers Retirement Board; Albert B. Lewis, individually and as Superintendent of the New York State Insurance Department; Spiro Bellow, Margaret Johnson, Angelo Papa, Thomas Terwilliger, Sheridan Hardenburg, Ralph Rasmusson and J. Ronald Seasted, individually and as members of the Board of Education of the Jamestown Public Schools, Defendants.
    No. 78 Civ. 2541-CSH.
    United States District Court, S.D. New York.
    March 9, 1987.
    
      Janet Axelrod, Asst. Counsel, New York Educators Ass’n, Albany, N.Y., and Deborah Watarz, New York City, for plaintiff.
    Shea & Gould, New York City (Martin I. Shelton, Dean G. Yuzek and Peter C. Neg-er, Shea & Gould, New York City, George K. Bernstein, Washington, D.C., Karl E. Nisoff and David A. Weiss, New York State Teachers’ Retirement System, of counsel), for defendants New York State Teachers’ Retirement System and Kenneth E. Buhrmaster, et al.
    Robert Abrams, Atty. Gen. of State of N.Y., New York City (Melvyn R. Leventhal, First Deputy Asst. Atty. Gen., Brenda S. Spears and Judith T. Kramer, Asst. Attys. Gen., of counsel), for defendant Superintendent of New York State Ins. Dept.
    Johnson, Peterson, Tener & Anderson, Jamestown, N.Y. (John K. Plumb, of counsel), for “Jamestown” defendants.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiff Bessie Hannahs, a retiree from teaching in the public school system in Jamestown, New York, brought this action to challenge as discriminatory the use of sex-differentiated actuarial tables in calculating the amount of monthly benefits a public school teacher receives upon retirement. The identity and status of the several defendants, and plaintiff’s theories of liability against them, are detailed in this Court’s opinion reported at 26 FEP Cases 527 (S.D.N.Y.1981), familiarity with which is assumed. All defendants had moved, on various grounds, to dismiss the complaint or for summary judgment. I granted defendant Lewis’s motion to dismiss the complaint as to him; and denied or reserved judgment on the summary judgment motions of the NYSTRS defendants and Jamestown defendants.

Those defendants have recast and renew their motions for summary judgment. They now base them on intervening higher authority: Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983), and Spirt v. Teachers Insurance and Annuity Association, 735 F.2d 23 (2d Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984) (“Spirt II”). The Supreme Court generated Spirt II by vacating the Second Circuit’s decision in Spirt v. Teachers Insurance and Annuity Association, 691 F.2d 1054 (2d Cir.1982) (“Spirt I”) and remanding the case “for further consideration in light” of Norris. Long Island University v. Spirt, 463 U.S. 1223, 103 S.Ct. 3566, 77 L.Ed.2d 1406 (1983).

There can be no question after Norris that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits the use of gender-based mortality tables in calculating the amount of monthly benefits retired New York State public school teachers are entitled to receive. That is the liability issue with which Justice Marshall dealt in Norris at 463 U.S. at 1076-1091, 103 S.Ct. at 3495-3503. The determinative issue on the recast motion of the defendants at bar is the appropriate remedy, an issue Justice Powell dealt with in Part III of Norris at 1105-1107, 103 S.Ct. at 3510-3511, and the Second Circuit was obliged to reconsider in Spirt II.

The defendants say that, on a proper reading of Norris and Spirt II, viewed through the prism of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), where it all began, and giving consideration to the post-1983 steps the NYSTRS has taken to implement Norris, plaintiff has received all the benefits to which she is entitled by law, so that summary judgment should enter.

The most recent submissions of counsel debate at length (a) what the Supreme Court in Norris meant about the remedy issue; and (b) what the Second Circuit in Spirt II meant about what it thought the Supreme Court meant in Norris.

For the reasons which follow, I grant the defendants’ motion for summary judgment and dismiss the complaint.

I.

As a district judge, I am not at liberty to give the Supreme Court’s fragmented opinion in Norris an unsupervised reading. I must read Norris as the Second Circuit reads Norris in Spirt II, at least to the extent that (1) I understand what Spirt 11 is saying, and (2) its rationale applies to the facts at bar.

Having said that much, I agree with defendants that Norris forbids any retroactive relief in the circumstances of the case at bar.

Justice Powell observed with concern that retroactive relief in Norris would impose additional costs upon the State of Arizona. He held for the Court that “liability should be prospective only,” 463 U.S. at 1107, 103 S.Ct. at 3511; and, in footnote 12 (dropped from the text at that point), expressed his and the Court’s agreement “with Justice O’Connor that only benefits derived from contributions collected after the effective date of the judgment need be calculated without regard to the sex of the employee.” Justice O’Connor, echoing concerns expressed in Manhart, supra, 435 U.S. at 722-723, 98 S.Ct. at 1382-1383, wrote in her concurring opinion in Norris that “[t]his real danger of bankrupting pension funds requires that our decision be made prospective.” Id., 463 U.S. at 1110, 103 S.Ct. at 3513.

The effective date of the Norris judgment is August 1, 1983. It becomes the watershed date for structuring relief.

Manhart and Norris voice broad concerns, rooted in policy, and clearly intended by the Court to apply to all comparable plans. Thus the Second Circuit in Spirt II, having quoted as I have done from Justices Powell and O’Connor, wrote that “[t]he premise of the Norris ruling against retroactivity” is “that equalization of women’s benefits requires the employer or the plan to pay out extra sums of money,” 735 F.2d at 26. Precisely because that is so, the Second Circuit’s perception in Spirt II is that “Norris appears to foreclose any possibility of the retroactive imposition of added financial burdens upon employers or plans,” id. at 29.

Norris did not preclude retroactive relief in Spirt II, the Second Circuit held, “because of the fundamental difference between the plan in Norris ” and the arrangements involved in Spirt II. 735 F.2d at 26. Arizona’s annuity plan, considered in Norris, provided “sufficient certainty concerning the amount of annuity payments” to permit calculation of a monthly amount.” Ibid. “It was this expectation of a determinable benefit,” Judge Newman says in Spirt II, “that the Supreme Court majority in Norris did not wish to have jeopardized by imposing added financial burdens on the plan.” Norris, in the Second Circuit’s view, did not intend to bar retroactivity in all cases; “[ijnstead, we see only a prohibition of relief provisions that impose added financial burdens on employers or plans.” Id. at 26-28.

Those concerns did not arise in the Spirt litigation because each of the two plans in question, “reflecting primarily the experience of the securities” in the plans’ portfolios, “guarantees plan participation no specified amount of monthly payments.” Spirt II at 23, quoting Spirt I at 691 F.2d 1068-69.

In Justice O’Connor’s words in Norris, “many working women have based their retirement decisions on expectation of a certain stream of income during retirement. These decisions depend on the existence of adequate reserves to fund these pensions.” 463 U.S. at 1110, 103 S.Ct. at 3513. The essence of the Spirt //plans did not fall within Norris’s prohibition of costly retroactive relief because they did not guarantee retirees “a certain stream of income.” Therefore, with the exception of one modification, the Second Circuit adhered to the retroactive relief it sanctioned in Spirt I.

But that modification is significant. At 735 F.2d 28-29, Judge Newman wrote:

In one minor respect, however, we think it would be prudent to modify our prior decision. Though the benefit level for TIAA participants depends primarily on the investment success of the TIAA portfolio, TIAA guarantees that benefit levels will reflect at least a 2lh% return on investments. In our prior decision, we noted that this minimum guarantee was so low “that there is no danger that the male participants’ expectation that they will receive the minimal guaranteed benefit will be jeopardized by the relatively minor changes ... necessitated by the relief ordered.” 691 F.2d at 1068. We still consider the likelihood that TIAA will fail to earn 2lk% on its investment to be an insignificant risk. However, since Norris appears to foreclose any possibility of the retroactive imposition of added financial burdens upon employers or plans, we will direct the District Court to modify its judgment to provide that unisex tables need not be used in calculating the portion of benefits attributable to pre-judgment contributions to whatever extent may be necessary in any year to ensure that the use of such tables will not impose added financial burdens upon the employer or TIAA beyond those resulting from the obligation to pay benefits reflecting a 2V2% return on investment.

This passage makes crystal clear the Second Circuit’s recognition that where a guaranteed payment may be identified, Norris precludes retroactive relief based on unisex tables which would impose a financial burden upon the plan.

In other words, both in what it permits and what it prohibits, the Second Circuit’s interpretation of Norris precludes retroactive relief in the case at bar.

The annuity portion of the NYSTRS plan is a classic annuity system which generates predictable monthly payments in amounts calculated to a certainty by a set mathematical formula. It is the sort of plan which falls within the Norris rationale. Retroactive relief would cost the plan very significant sums. NYSTRS has no existing reserves with which to bear the costs of a retroactive change from the previously used sex distinct actuarial tables. These facts are established beyond peradventure of doubt by the affidavit of Albert Alazraki, the NYSTRS actuary. Plaintiff submits an affidavit of a consulting actuary, Richard Roeder, which quarrels with the completeness of some of Alazraki’s calculations and challenges certain conclusions as speculative. I do not regard the Roeder affidavit as sufficient to demonstrate, in the words of the summary judgment rule, a “genuine issue” as to the “material” (not, decisive) fact that retroactive relief would be of great cost and prejudice to a retirement plan structured to guarantee retirees specified amounts of monthly payments.

Plaintiff has no entitlement to retroactive relief.

II.

The unavailability of retroactive relief would not foreclose summary judgment if, on this record, plaintiff was still entitled to some relief. That brings us to a consideration of the post-1983 steps the NYSTRS has taken to implement Norris.

Defendants say that “[immediately following the Supreme Court’s decision, NYSTRS proceeded to develop new mortality tables, together with procedures for their implementation, which strictly complied with the Norris decision.” Main brief at 16.

In computing retirement benefits derived from contributions and/or accruals occurring on or after August 1, 1983, the NYSTRS uses newly developed merged gender mortality tables. The annuity portion of the retirement allowance is derived from contributions the member has made to his or her annuity fund account and the interest credited thereon. In purported obedience to Norris, NYSTRS’s current practice is described by Lawrence A. Johnson, its actuarial manager, as follows:

“... when NYSTRS now computes the annuity portion of a retiree’s retriement allowance it separates the retiree’s total contributions into contributions (including interest thereon) made prior to August 1, 1983, and contributions (including interest thereon) made on or after August 1, 1983. The annuity payable on the former is computed based upon existing sex-distinct mortality tables and the annuity payable on the latter is based upon the newly adopted merged gender mortality tables.”

Affidavit at ¶ 8.

The pension portion of the retirement allowance, sex neutral, “is provided pursuant to a defined benefit plan under which the retiree receives a percentage of his or her final average salary for each year of service.” Id. at II5. The governing statute, N.Y. Education Law § 513; Retirement and Scoial Security Law, §§ 447, 610, provides members with the right to elect certain options on their retirement allowances. The nature of the options, and their post-Nom's treatment, are described in the Johnson affidavit at II 6.

These options, which provide a benefit upon the death of the member and are computed on the entire retirement allowance (including both the annuity and pension portion) are in the nature of life insurance on the life of the retiring member. A retiree’s maximum retirement allowance is reduced to provide this “life insurance” benefit. For purposes of benefits derived from contributions and/or accruals prior to August 1, 1983, this reduction is actuarially computed based upon the respective age and sex of the retiree and the beneficiary. Options based upon benefits derived from contributions and/or accruals on or after August 1, 1983, are aetuarially computed based upon newly adopted merged gender mortality tables.

If these changes accomplish for plaintiff Bessie Hannahs all to which the law entitles her, summary judgment will lie.

Plaintiff criticizes the post-Norris NYSTRS computations because they indulge in “midpointing” rather than “topping up.” “Topping up” means increasing the benefits of the disadvantaged (here, women teachers) to the more favorable rate. “Midpointing” means doing what the NYSTRS has done: using “merged gender mortality tables.” In this context, merger equals midpointing. Because the male actuarial tables indicate shorter life expectancies than those of women, each male retiree loses a few dollars a year in his annual allowance from what he would receive if the post-Norris relief followed “topping up.” Plaintiff Hannahs condemns this remedy because it “advantages the previously disadvantaged group [women] at the expense of other employees [men] creating a new group of disadvantaged people.” Main brief at 11. This is said to contravene Norris and the New York State Constitution.

At first blush one might question, although defendants do not, the standing of a woman plaintiff to complain of inequities to men. But I am asked as a court of equity to reach an equitable result. Equity properly considers effects of its decree and the underlying circumstances upon third parties, whether represented in the litigation or not. Furthermore, “topping up” would give both men and women larger payouts; men’s amounts would not be reduced, and women’s amounts would be “topped off” to equal them. So I consider the merits of plaintiff’s objections.

A. Norris Considerations

The parties brief at length what the Supreme Court did or did not say in Norris about “topping up.” The dialogue becomes ever more esoteric. The exegesis turns upon overlapping footnoes in majority and concurring footnotes. Meaning no disrespect, one is reminded of the ancients seeking oracular wisdom by killing a sacred pigeon and examining its entrails for clues.

Thus, Justice O’Connor, concurring on the question of relief in Norris, said in text 463 U.S. at 1111, 103 S.Ct. at 3513: “I would require employers to ensure that benefits derived from contributions collected after the effective date of our judgment be calculated without regard to the sex of the employee.” At that point she drops footnote 4, which begins: “In other words, I would require employers to use longevity tables that reflect the average longevity of all their workers.” Justice O’Connor goes on to argue in footnote 4 that prospective relief should not require employers to “top up” benefits by using male-longevity tables for all workers. First, she observes that the Equal Pay Act, 29 U.S.C. § 206(d)(1), does not require that result. Second, she argues that any principle of “topping up” inherent in the Equal Pay Act in inimical to a pension plan “whose entire function is aetuarially to balance contributions with outgoing benefits”; topping up would inappropriately calculate benefits “on the basis of tables that do not reflect the composition of the work force.”

In footnote 12 to his majority opinion on the issue of relief, Justice Powell says: “I agree with Justice O’Connor that only benefits derived from contributions collected after the effective date of the judgment need be calculated without regard to the sex of the employee.” He then refers to Justice O’Connor’s discussion at page 1111, 103 S.Ct. at 3513; but it is not clear whether Justice Powell meant by that approving reference to embrace Justice O’Connor’s footnote 4. The only reference Justice Powell makes to topping up appears in his footnote 11, dropped from the text at 1106, 103 S.Ct. at 3511. But the text demonstrates that what was at issue was retroactive, not prospective relief. Similarly, the Second Circuit’s discussion in Spirt II at 27 of the Norris reference to topping off takes place within the context of retroactive relief. As Second Circuit acknowledges: “The absence from the majority opinion of any mention of the decent’s preferred resolution of the case leaves us somewhat uncertain as to the meaning of the Norris decision.” Id. at 28.

My own view is that neither Norris nor Spirt II mandate a topping up in the structuring of a prospective relief. On the contrary: I am persuaded by Justice O’Con-nor’s analysis that topping up would be inconsistent with the main thrust of these cases, namely, to calculate benefits on the basis of tables that fairly reflect the composition of the entire work force. “Mid-pointing” achieves that purpose.

B. State Law Considerations

Secondly, plaintiff argues that topping up in prospective relief is required by Article V, § 7 of the New York State Constitution, which prohibits a reduction in benefit levels previously applying to public employees.

My conclusion that Title VII of the federal Civil Rights Act militates against topping up for prospective relief disposes of this argument. That is because federal law declared in Title VII takes precedence over state constitutions and statutes. Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1132 n. 18 (2d Cir.1983); Guardians Association of New York City Police Department Inc. v. Civil Service Commission, 630 F.2d 79, 104-105 (2d Cir.1980), cert. denied 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). The New York courts recognize the same preemptive effect of federal law over state constitutional and statutory enactments. Michael v. Bellamy, 80 A.D.2d 147, 437 N.Y.S.2d 977 (1st. Dept.1981), appeal dismissed 55 N.Y.2d 1036, 449 N.Y.S.2d 1031, 434 N.E.2d 1082 (1982), motion for leave to appeal denied 57 N.Y.2d 603, 454 N.Y.S.2d 1027, 440 N.E.2d 798 (1982).

I have considered the plaintiff’s other arguments. None of them pursuade me that the plaintiff has not received all the relief to which she is entitled by law.

CONCLUSION

For the foregoing reasons, the Clerk of the Court is directed to dismiss the complaint in this action with prejudice and without costs.

It is So Ordered. 
      
      . In addition to the annuity component of the teacher’s retirement allowance, challenged by this action, there is also a pension component of the overall N.Y.S.T.R.S. retirement plan which is based on percentages of salary and years of service. It is totally sex neutral and not implicated in this litigation. Alazraki affidavit ¶7; affidavit of Lawrence A. Johansen at ¶ 5.
     
      
      
        . Rule 56(c) F.R.Civ.P.
     
      
      . See schedules B-l — B-4 to Johansen affidavit.
     