Colby v. J.C. Penney Co., Inc.

• Decision Date: 24 March 1987
• Docket Number: No. 86-1500,86-1500
• Citation: 811 F.2d 1119
• Parties: 43 Fair Empl.Prac.Cas. 1056, 43 Fair Empl.Prac.Cas. 47, 42 Empl. Prac. Dec. P 36,866, 43 Empl. Prac. Dec. P 37,251, 55 USLW 2460, 8 Employee Benefits Ca 1343 Diane COLBY, on her own behalf and that of all other persons similarly situated, Plaintiff-Appellant, v. J.C. PENNEY COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1119

811 F.2d 1119

43 Fair Empl.Prac.Cas. 1056,

43 Fair Empl.Prac.Cas. 47,

42 Empl. Prac. Dec. P 36,866,

43 Empl. Prac. Dec. P 37,251, 55 USLW 2460,

8 Employee Benefits Ca 1343

Diane COLBY, on her own behalf and that of all other persons

similarly situated, Plaintiff-Appellant, v. J.C. PENNEY COMPANY, INC., Defendant-Appellee.

No. 86-1500.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1986.

Decided Feb. 10, 1987.

Opinion on Denial of Rehearing March 24, 1987.

Eugene J. Schiltz, Robert F. Coleman & Assoc., Chicago, Ill., for plaintiff-appellant.

Robert A. Marsac, Eric H. Lipsitt, Dykhouse & Wise, Detroit, Mich., for defendant-appellee.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

This suit charges that the J.C. Penney Company, which owns a chain of retail stores, committed sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The plaintiff, Diane Colby, is an employee of Penney in Illinois. She is suing on behalf of herself and all similarly situated Penney employees in Illinois. The suit challenges Penney's "head of household" rule. Until 1971, Penney allowed only its male employees to elect coverage for their spouses under the company's medical and dental plans. In that year Penney replaced this explicitly sex-based rule with the "head of household" rule. This rule allows any employee, male or female, to elect coverage for the employee's spouse if the spouse Mrs. Colby's suit was filed in 1980, but lay dormant for five years awaiting the outcome of a parallel suit brought by the Equal Employment Opportunity Commission in the federal district court in Detroit, Michigan, challenging Penney's head of household rule on a nationwide basis. The EEOC lost that suit late in 1985, and its appeal to the Sixth Circuit is pending. See EEOC v. J.C. Penney Co., 632 F.Supp. 871 (E.D.Mich.1985), appeal docketed, No. 86-1139 (6th Cir. Feb. 18, 1986). When the district court's decision in the Detroit case was handed down, the district judge in this case had under advisement Penney's motion for summary judgment, and in March 1986 he granted the motion on the ground that the Detroit decision was stare decisis. The judge described the failure of the EEOC's suit as "persuasive precedent" but did not discuss the merits of the Detroit decision or of this case. The court noted noncommittally that another suit against Penney's head of household rule had also failed. See Wambheim v. J.C. Penney Co., 705 F.2d 1492 (9th Cir.1983).

earns less than the Penney employee. Mrs. Colby and the members of her class are female employees who cannot elect coverage for their spouses because their spouses earn more than they do. She argues that although the head of household rule may not (despite its origins) be intended to discriminate against women, it has that effect. Female employees of Penney tend to be concentrated in low-paying jobs, and male wages are on average higher than female wages; hence a larger fraction of male than female employees of Penney are eligible to elect coverage for their spouses under the head of household rule. At argument Mrs. Colby's lawyer, staring fixedly at the members of this panel, likened the head of household rule to a rule disqualifying bald persons: the incidence of the rule would be concentrated on one sex even though the rule was not explicitly based on sex. Such "disparate impact" can condemn an employment practice under Title VII, unless some good business justification is shown. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977).

Mrs. Colby has appealed, challenging not only the dismissal of her action but the district court's earlier ruling refusing (without any statement of reasons) to certify her suit as a class action. Penney defends both the dismissal and the denial of class certification on a variety of grounds, most of which the district court did not address.

We first address Penney's argument that Mrs. Colby has no standing to maintain this suit, and therefore that it is not within the subject matter jurisdiction of the federal courts. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Penney argues, frivolously, that Mrs. Colby has no standing because she has never applied for spouse coverage. But the whole point of the suit is that she is ineligible; nor does Penney contend otherwise. Second and more substantially, but we think unavailingly, Penney argues that throughout the entire period of Mrs. Colby's employment with Penney her husband has never lacked insurance coverage at his place of employment, and therefore she has not been harmed by the head of household rule. But that is like saying that if an insurance company cancels your medical insurance policy, you can't complain till you get sick. Mrs. Colby claims to want spouse coverage, and there is no basis in the record compiled thus far in this case to doubt that she is sincere and would derive a benefit from the additional coverage for which she would not have to pay. For aught that appears, Mr. Colby's coverage by his employer is less generous than Penney's spouse coverage, even though he has a higher salary than his wife--indeed, maybe he has a higher salary because his employer provides fewer fringe benefits. Or he and his wife may be worried about what would happen if he lost his job. Maybe he would like to quit and find another job and would do so if he had interim coverage, which may be unavailable from his present employer. Although it is possible that this is a nuisance suit and Mrs. Colby has no desire for spouse coverage, her complaint alleges that she does desire it and Penney has not cast enough doubt on the truth of the allegation by its speculations in this court to justify our throwing the case out on jurisdictional grounds or even remanding for a hearing on jurisdiction.

We turn now to the question whether the suit was properly dismissed on the merits. The ground relied on by the district court was stare decisis. That means deciding a case in accordance with what That would be a proper application of stare decisis only if the Detroit decision were authoritative, which is to say, had weight independent of its persuasive power. Whether a decision is authoritative depends on a variety of factors, of which the most important is the relationship between the court that decided it and the court to which it is cited later as a precedent. The simplest relationship is hierarchical: the decisions of a superior court in a unitary system bind the inferior courts. The most complex relationship is between a court and its own previous decisions. A court must give considerable weight to those decisions unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments, such as a statutory overruling. But it is not absolutely bound by them, and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision.

has been decided previously in other, similar cases (similar in the sense of not being legally distinguishable); and in a literal sense that is what the district judge did. But the doctrine is more complex than the summary definition just offered, and was misapplied. The distinction essential to understanding the doctrine is between the persuasiveness and the authority of a previous decision. Any decision may have persuasive force, and invite--indeed compel--the careful and respectful attention of a court confronted with a similar case. But unless the earlier decision is authoritative, the court that decides the later case does not discharge its judicial responsibilities adequately by merely citing the earlier decision and following it without so much as indicating agreement with it, let alone analyzing its merits. That is what the district court did here; it dismissed this case because the district court in Detroit had dismissed a similar case, not because the reasoning in the Detroit decision was persuasive. The district judge in this case did say that the "EEOC's action ... does offer persuasive precedent," but taken in conjunction with his earlier statement that "the doctrine of stare decisis can serve to preclude the possibility that plaintiff can prevail in this case," and his failure to discuss the merits of the Detroit decision or of the present case, the reference to "persuasive precedent" appears intended to mean only that the dismissal of the EEOC's suit entitled the judge in this case to treat the Detroit decision as stare decisis.

One can hardly speak of stare decisis at all with regard to parallel court systems. We are bound to follow a decision of the Supreme Court unless we are powerfully convinced that the Court would overrule it at the first opportunity. Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731 (7th Cir.1986). In cases where the rule of decision is the law of some state, we owe the same deference to the highest court of that state. Erie R.R. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938). But we can give decisions of the House of Lords or the Cour de Cassation as little weight as we like (putting aside complications introduced by conflict of laws principles, which might make foreign law controlling, in just the same way that state law controls the substantive issues in a diversity suit). We have an intermediate obligation to our sister federal courts of appeals. Bearing in mind the interest in maintaining a reasonable uniformity of federal law and in sparing the Supreme Court the burden of taking cases merely to resolve conflicts between circuits, we give most respectful consideration to the decisions of the other courts of appeals and follow them whenever we can. Our district judges should, of course, do likewise with regard to such...