903 F.2d 243 (3rd Cir. 1990), 89-3686, Schafer v. Board of Public Educ. of the School Dist. of Pittsburgh, Pa.

Docket Nº:89-3686.
Citation:903 F.2d 243
Party Name:, 12 Employee Benefits Ca 1497 Gerald SCHAFER, Appellant, v. BOARD OF PUBLIC EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH, PA.; Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers, AFL-CIO.
Case Date:May 17, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 243

903 F.2d 243 (3rd Cir. 1990)

, 12 Employee Benefits Ca 1497

Gerald SCHAFER, Appellant,



PITTSBURGH, PA.; Pittsburgh Federation of

Teachers, Local 400, American Federation

of Teachers, AFL-CIO.

No. 89-3686.

United States Court of Appeals, Third Circuit

May 17, 1990

Argued Feb. 27, 1990.

Page 244

Edward J. Feinstein (argued), Pittsburgh, Pa., for appellant.

Robert E. Durrant (argued), Meyer, Darragh, Buckler, Bebenek, Eck & Hall, Pittsburgh, Pa., for Bd. of Public Educ. of the School Dist. of Pittsburgh.

Sandra Reiter Kushner (argued), Rothman, Gordon, Foreman & Groudine, P.C., Pittsburgh, Pa., for Pittsburgh Federation of Teachers, Local 400.

Before HIGGINBOTHAM, Chief Judge, and HUTCHINSON and COWEN, Circuit Judges.



This is a sex discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (Title VII). Appellant, Gerald Schafer (Schafer or employee), claims that he was impermissibly denied a one-year childrearing leave which was available to female employees, at their option, under the collective bargaining agreement between appellees, the Board of Public Education of the School District of Pittsburgh, Pennsylvania (the Board), and the Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers, AFL-CIO (the Federation or union). Schafer also alleges that as a result of the denial of the leave, he was forced to resign from his position as a teacher.

In this appeal from a grant of summary judgment for the Board and the Federation, we are faced with three issues: 1) whether the district court erred in determining that there existed no question of material fact to support Schafer's claim that the Board and the union violated his rights under Title VII; 2) whether the district court erred in denying appellant's motion for summary judgment after concluding that there was a factual question as to the reasonableness of his resignation; and 3) whether the district court erred in denying the Federation's motion to dismiss.

Because we find as a matter of law that the Board violated Schafer's rights under Title VII, we will reverse the district court's grant of summary judgment to the Board and the Federation. We also conclude that the district court properly decided that there is a factual question of whether it was reasonable for Schafer to resign, thus, we will affirm the district court's denial of Schafer's motion for summary judgment but remand for a determination of whether Schafer was constructively discharged. However, we will reverse the district court's denial of the Federation's motion to dismiss, because we find that the Federation is not an indispensable party, the statute of limitations has run against it, and there is no equitable tolling in this instance.


Schafer, a male, was employed as a teacher by the Board, from August 1978 until December 14, 1981. In late August or early September of 1981, Schafer requested an unpaid leave of absence for the 1981-1982 school year for the purpose of childrearing. Schafer requested the leave from Charles Allebrand, the Board's Assistant Personnel Director for Special Education, pursuant to Article 31, Sec. 3(c) of the collective bargaining agreement between the Board and the Federation. 1 Allebrand

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advised Schafer that he had never known a male to be granted such a leave, although females were routinely granted them. Allebrand suggested that Schafer apply for a ninety-day unpaid emergency leave, but he also provided Schafer with an application for the one-year leave. Schafer claims that he informed Allebrand that if he did not receive the one year leave and could not find appropriate child care, he would be forced to resign.

Schafer was granted the three-month unpaid emergency leave to expire on December 14, 1981. He also applied for unpaid childrearing leave from the expiration of the three-month emergency leave to the end of the school year. On November 20, 1981, the Board informed Schafer that his application for childrearing leave was denied. Schafer alleges that he was unable to obtain appropriate child care. On November 30, 1981, he submitted a letter of resignation to be effective on December 14, 1981. In his letter of resignation, Schafer stated that he was forced to resign because he was refused leave to care for his son.

At the end of December 1981, Schafer did locate day care for his son. However, he did not request reinstatement at that time. He had no correspondence with the Board on the issue of reinstatement until June 23, 1982, when he requested that the Board reconsider its denial of his leave so he could return to work in September of 1982. 2 Schafer received a response from E. Robert Galligan of the Board, denying his request. The response indicated that Schafer was no longer an employee of the District and therefore had no right to the leave.

Prior to his resignation, Schafer spoke to Federation officials, Paul Francis and Joseph Zunic, who indicated that the union was unable to help him because Article 31 of the collective bargaining agreement provided leave only for females. Subsequently, Schafer advised Zunic that he filed a complaint before the Pennsylvania Human Relations Commission (PHRC) and asked him to call the PHRC. The Federation was sent a copy of a PHRC letter dismissing Schafer's complaint as untimely under state law and advising Schafer that he could pursue his complaint with the Equal Employment Opportunity Commission (EEOC).

On July 13, 1982, Schafer filed a charge of discrimination against the Board with the EEOC. On June 20, 1984, at the request of the EEOC, Schafer signed an amended EEOC charge against both the Board and the Federation.

On September 19, 1984, the EEOC determined that there was reasonable cause to believe that the charge was true and directed a "Notice of Conciliation Process" to Schafer and the Board. The Federation was advised of this determination on September 26, 1984. On December 23, 1986 the Department of Justice, on behalf of the United States, initiated an action against the Board, the Federation, and a number of other unions with which the Board had

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collective bargaining agreements with similar provisions relating to childrearing leave. Acting upon Schafer's complaint, the United States alleged that the appellees' policy and practice with regard to childrearing leave, as contained in the collective bargaining agreement, constituted a pattern or practice of resistance to the full enjoyment by men and women of their right to employment without discrimination or classification based on sex.

On March 13, 1987, the United States and the appellees entered into a consent agreement and a decree was issued granting the Board's male employees childrearing leave on the same basis as childrearing leave is granted female employees. There were no findings on the merits nor any admission by the appellees of any violation of Title VII.

The consent decree was prospective in nature and therefore no relief was granted to Gerald Schafer, who had resigned. On March 13, 1988, Schafer moved and was granted the right to intervene as a party plaintiff. Schafer's complaint charged the Board and the Federation with sex discrimination in employment and sought reinstatement and back pay. 3 On March 21, 1988, Schafer filed a motion for summary judgment, alleging that no material facts remained in dispute and that judgment should be entered as a matter of law. This motion was denied on October 6, 1988, although the court noted that Schafer had made out a prima facie case of discrimination against male employees.

On August 9, 1989, appellees filed a joint motion for summary judgment, alleging that the leave policy was a permissible accommodation to females under California Federal Savings & Loan Association v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), and Harness v. Hartz Mountain Corporation, 877 F.2d 1307 (6th Cir.1989), cert. denied, --- U.S. ----, 110 U.S. 728, 107 L.Ed.2d 747, (1990). 4 The district court granted the motion on September 15, 1989, interpreting the leave in question as one of maternity and not childrearing and concluding that Guerra permitted this favorable treatment to pregnant females.

On October 12, 1989, Schafer filed a notice of appeal from both the October 6, 1988 order denying his summary judgment motion and the September 15, 1989 order granting summary judgment for the appellees.

Our review of the district court's order granting appellees' summary judgment motion and denying appellant's summary judgment motion is plenary. Our review of the district court's determination that there was sufficient basis to permit Schafer to maintain a Title VII action against the Federation is also plenary.


Appellees' Motion for Summary Judgment

Federal Rule of Civil Procedure 56 provides that a district court may grant a summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment

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as a matter of law." Fed.R.Civ.P. 56(c). Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). See also Small v. Seldows Stationery, 617 F.2d 992...

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