Aungst v. JC Penney Co., Inc.

• Citation: 456 F. Supp. 370
• Decision Date: 23 August 1978
• Docket Number: Civ. A. No. 77-1287.
• Parties: Maxine AUNGST, Individually and on behalf of all others similarly situated, Plaintiff, v. J. C. PENNEY COMPANY, INC., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

456 F. Supp. 370

Maxine AUNGST, Individually and on behalf of all others similarly situated, Plaintiff, v. J. C. PENNEY COMPANY, INC., Defendant.

Civ. A. No. 77-1287.

United States District Court, W. D. Pennsylvania.

August 23, 1978.

COPYRIGHT MATERIAL OMITTED

Beverly A. Gazza, Tucker, Arensberg, Ferguson, Pittsburgh, Pa., for plaintiff.

Walter P. DeForest and Patrick W. Ritchey, Pittsburgh, Pa., for defendant.

OPINION

WEBER, Chief Judge.

This action was instituted to redress a pattern and practice of sex discrimination in employment allegedly fostered by defendant. Plaintiff purports to act on her own behalf and on behalf of a class delineated as ". . . all women employed by the defendant since October, 1967, all women presently employed by the defendant and all women who may be employed by the defendant in the future who were, are or will be affected in the future by the policies of the defendant which unlawfully discriminate against women." Defendant is charged, generally, with violating the rights of plaintiff and the class as defined under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d) and 216(d); 42 U.S.C. §§ 1985, 1986, and 1988; the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. § 951 et seq., and Article I, Section 28 of the Pennsylvania Constitution. Jurisdiction is asserted under 42 U.S.C. § 2000e-5(f); 28 U.S.C. §§ 1331, 1332, 1337 and 1343; 28 U.S.C. §§ 2201 and 2202; as well as pendent jurisdiction.

The Court is presently concerned with defendant's motion to dismiss and/or entry for summary judgment. Fed.R.Civ.P. 12(b) and 56(b). Additionally, we shall address plaintiff's motion for class action determination. Fed.R.Civ.P. 23(a) and (b)(2).

BACKGROUND

The record reveals that plaintiff is Maxine Aungst ("Aungst"); defendant is J. C. Penney Company, Inc. ("J. C. Penney"). From approximately October, 1967 until April 25, 1974, Aungst was employed as a salesperson in the furniture department of J. C. Penney's Logan Valley Mall retail facility located in Altoona, Pennsylvania. Subsequent to her termination, Aungst filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"), to-wit,

"Female associates on the selling floor have an enforced dress code of navy blue, black, or brown or grey sic. I was told to dress `more professionally' (even tho I did abide by the dress code color) because of the dept. I worked in. Family Benefits are denied female employeess ie. hospitalization etc unless they fill out a form `head of household' (# 1604-9(c)) (I did this & my family was covered) but, the company practices this. Men are required to wear suits or sport jackets but no color is specified. Females are not allowed to work more than 40 hours — men are — example — to cover floor for hours when others are sick or on vacation. I worked w/J. C. Penney Co. 6 years & 6 mo but just recently during a time when my performance was down — which I feel was due to illness, for which I was under a Dr's care, — was harrassed about these things.

I could answer questions or go into detail in a conversation with someone easier than write it all down.

I feel I was given a `constructive dismissal' because I didn't quit — but am not working at this time because of a `misinterpretation' of a statement during a phone conversation with the personel sic supervisor. There is a 4 page statement on file with the Pa. state employment office at this time & I'm waiting to be notified of a date for a hearing in relation to my dissatisfaction with the decision given at a predetermination hearing for unemployment. They say I quit — I didn't but I haven't been allowed to return to work but I have been terminated from the payroll —

The company explains away the dress code for women by saying it is easier for a customer to tell which are clerks but each one has to wear a Penney name tag at all times. This is not a company policy but is entirely at the manager's discretion." (EEOC Charge)

We repeat this charge in full because of the disparity between the administrative charge and the allegations of the complaint. In due course, the EEOC issued a right to sue letter and Aungst timely instituted suit in this Court.

The complaint alleges that J. C. Penney has maintained and continues to maintain a pattern and practice of discrimination against women in terms and conditions of employment and employment opportunities in the following particulars:

"23. Defendant has wilfully and intentionally denied equal employment to the plaintiff and the class and has discriminated, continues to discriminate and will discriminate in the future against the plaintiff and the class in the following ways:

(a) In failing and refusing to hire, recruit and place women on the same terms and conditions as comparably qualified men;

(b) In failing and refusing to compensate women employees on the same terms and conditions as comparably qualified men;

(c) In failing and refusing to promote women employees in the same manner and at the same rate as comparably qualified men;

(d) In failing and refusing to provide women employees with fringe benefits on the same terms and conditions as such fringe benefits are made available to comparably qualified men employees;

(e) In requiring that an employee qualify as a "Head of Household" before providing medical insurance coverage for the spouse and dependents of such employee;

(f) In failing and refusing to assign women employees to overtime work on the same terms and conditions as such assignments are made with respect to comparably qualified men employees;

(g) In imposing a dress code for women employees which is not applicable to similarly situated male employees;

(h) In otherwise discriminating against women employees with respect to the terms and conditions of employment.

24. The aforesaid practices of the defendant are not job related and are based solely on the sex of the defendant's employees." (Complaint, paragraphs 23 & 24).

More specifically, in support of her personal claim, Aungst includes charges that J. C. Penney, 1) imposed a dress code on her and other women employees which was not applicable to similarly situated male employees; 2) denied her and other women employees overtime work assignments on the same terms and conditions as comparably qualified male employees; and 3) required her to certify that she was a "Head of Household" before providing medical insurance coverage for her spouse and dependents. Aungst seeks declaratory, injunctive and other appropriate relief.

MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

In support of its motion, J. C. Penney asserts, at the outset, that all claims predicated on 42 U.S.C. §§ 1985, 1986 and 1988 should be dismissed. J. C. Penney contends that Aungst's allegation of conspiracy, towit, that J. C. Penney ". . . and certain of its officers, employees and representatives . . . agreed and conspired to discriminate . . .," does not state a claim under 42 U.S.C. § 1985(3).

The Court is cognizant that a proper claim under § 1985(3) must allege, 1) a conspiracy; 2) for the purpose of depriving a person or class equal protection of the laws or equal privileges and immunities; 3) an act in furtherance of the conspiracy; 4) whereby one was injured in his person or property or deprived any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Moreover, the complaint must clearly allege, with specific facts, both the discrimination and the existence of a conspiracy. Bethel v. Jendoco Construction Corp., 570 F.2d 1168 (3d Cir. 1978); Robinson v. McCorkle, 462 F.2d 111 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972).

In assessing the instant claim, we cannot conclude that Aungst has adequately alleged the existence of a conspiracy. Initially, we note that the complaint fails to either identify or attempt to identify the individuals involved, and failed to supply any factual details of the conspiracy beyond mere conclusions. On that basis alone, to-wit, that Aungst failed to allege a conspiracy with "sufficient concreteness," the § 1985(3) claim may be dismissed. See, Bethel v. Jendoco Construction Corp., supra. Nonetheless, in view of the anticipated motion for leave to amend should we dismiss on that basis, the Court further notes our subscription to the tenet that a corporation cannot conspire with itself any more than an individual can conspire with himself. See, e. g. Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir. 1960) (dictum); Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th Cir. 1952). While we are all cognizant of authority which would permit a claim of conspiracy against a business entity if multiple instances of discrimination and harassment were alleged, Rackin v. University of Pennsylvania, 386 F.Supp. 992 (E.D.Pa.1974); there are no such substantive allegations in the instant case to indicate that the acts complained of constitute an avowed corporate policy of sex discrimination.

Therefore, on the basis of the facts in the instant case, we hold that the alleged conspiracy between the "agents" of J. C. Penney cannot support a claim under § 1985(3). See, e. g., Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Johnson v. University of Pittsburgh, 435 F.Supp. 1328 (W.D.Pa.1977); Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa. 1976). The § 1985 claim, as well as the attendant § 1986 and § 1988 claims shall be dismissed with prejudice.

J. C. Penney next asserts that all claims arising under Article I, Section 28 of the Pennsylvania Constitution should be dismissed. J. C. Penney argues, alternatively, that the Court should decline pendent jurisdiction because the subject constitutional provision has not been authoritatively interpreted by the Pennsylvania courts, or dismiss the claim because the provision has been interpreted...