Corne v. Bausch and Lomb, Inc.

• Decision Date: 14 March 1975
• Docket Number: No. CIV 74-173-TUC-WCF.,CIV 74-173-TUC-WCF.
• Citation: 390 F. Supp. 161
• Parties: Jane CORNE and Geneva DeVane and husband, Plaintiffs, v. BAUSCH AND LOMB, INC., a corporation, and Leon Price, Supervisory Employee of Bausch and Lomb, Inc., Defendants.
• Court: U.S. District Court — District of Arizona

390 F. Supp. 161

Jane CORNE and Geneva DeVane and husband, Plaintiffs, v. BAUSCH AND LOMB, INC., a corporation, and Leon Price, Supervisory Employee of Bausch and Lomb, Inc., Defendants.

No. CIV 74-173-TUC-WCF.

United States District Court, D. Arizona.

March 14, 1975.

Heather A. Sigworth, Tucson, Ariz., for plaintiffs.

Arthur W. Pederson, Shimmel, Hill, Bishop, Gruender, P. C., Phoenix, Ariz., for Bausch and Lomb, Inc.

Douglas L. Irish, Mary M. Schroeder, Lewis & Roca, Phoenix, Ariz., for Leon Price.

MEMORANDUM AND ORDER

FREY, District Judge.

Plaintiffs Jane Corne and Geneva DeVane filed the present complaint alleging a violation of civil rights based on sex discrimination. The suit was instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (Title 42, United States Code, Section 2000e et seq). It is alleged that at the time the discriminatory acts occurred, plaintiffs were employed by defendant Bausch and Lomb and defendant Leon Price was in a supervisory capacity over plaintiffs.

Plaintiffs filed charges of employment discrimination with the Equal Employment Opportunity Commission (E.E.O. C.) against defendants on October 12, 1973. The complaint alleges that since July, 1973, the E.E.O.C. has not recognized Arizona's right to deferral status under Section 706(c) of Title VII. On June 6, 1974, plaintiffs received a Notice of the Right to Sue from the E.E. O.C.

The complaint further alleges the following: plaintiffs worked in a clerical capacity for defendants in the period before the filing of the E.E.O.C. complaints; plaintiffs' employment conditions became increasingly onerous in that they were repeatedly subjected to verbal and physical sexual advances from defendant Price; defendant Price's illegal activities were directed not only to plaintiffs but also to other female employees and thus constituted a condition of employment that discriminates by sex in violation of Title VII; cooperation with defendant Price's illegal activities resulted in favored employment that discriminates by sex in violation of Title VII; immediately before the filing of the complaint with the E. E.O.C., defendant Price's activities directed to plaintiffs became so onerous that plaintiffs were forced to resign.

Defendant Bausch and Lomb has filed a Motion to Dismiss the complaint. The reasons set forth for dismissal are:

1. Plaintiffs have failed to exhaust their State remedies.

2. Plaintiffs have failed to timely file their charges with the Arizona Civil Rights Division.

3. The complaint fails to state a claim for relief for violation of Title VII of the 1964 Civil Rights Act.

Defendant Price has filed a Motion to Dismiss or in the alternative a Motion to Stay Proceedings. The State of Arizona has filed an Amicus brief urging dismissal of the complaint or in the alternative that the proceedings be stayed. The E.E.O.C. has filed an Amicus brief in opposition to defendants' Motion to Dismiss.

A hearing on the motions was held on January 20, 1975, and the matter is now deemed submitted. The main focus here is on the issue of whether a claim for relief is stated under Title VII.

Assuming that all allegations in the complaint are true, plaintiffs have failed to state a claim for relief under Title VII of the Civil Rights Act.

Title 42, United States Code, Section 2000e-2(a) provides in pertinent part:

"(a) Employers. It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

Plaintiffs allege that they are females; that they were repeatedly subjected to verbal and physical sexual advances from defendant Price; and that due to such advances plaintiffs terminated their employment with Bausch and Lomb. Plaintiffs allege that putting a male in a supervisory position over female employees, where the male supervisor persistently takes unsolicited and unwelcome sexual liberties with the female employees is the creation of a sex discriminatory condition, and a limitation that tends to deprive the women of equal employment opportunities; the plaintiffs seek to hold the employer liable because its administrative personnel knew or should have known of defendant Price's conduct toward female employees.

There is little legislative history surrounding the addition of the word "sex" to the employment discrimination provisions of Title VII of the Civil Rights Act of 1964. In Diaz v. Pan Am. Airways, Inc., 442 F.2d 385 (5th Cir. 1971), the Court stated:

". . . The amendment adding the word `sex' to `race, color, religion and national origin' was adopted one day before House passage of the Civil Rights Act. It was added on the floor and engendered little relevant debate. In attempting to read Congress' intent in these circumstances, however, it is reasonable to assume, from a reading of the statute itself, that one of Congress' main goals was to provide equal access to the job market for both men and women . . ."

With respect to unlawful employment practices by employers, it can be seen that in addition to the specific language in Title 42, United States Code, Section 2000e-2(a) making it unlawful for an employer to discriminate because of an individual's sex with respect to hiring, discharging, classification or compensation of individuals, it has been held an unlawful employment practice for an employer to discriminate against individuals with respect to job assignment or transfer, Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971); hours of employment, Ridinger v. General Motors, Corp., 325 F.Supp. 1089 (D. Ohio 1971); or "fringe benefits" such as retirement, pension, and death benefits, Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971). Employers have been found to have discriminated against female employees because of their sex where they maintained policies which discriminated against females because they were married, Jurinko v. Edwin L. Wiegan Co., 331 F.Supp. 1184 (D.Pa.1971) or pregnant, Schattman v. Texas Employment Co., 330 F.Supp. 328 (D.Tex.1971). In addition, it has been held that an employer's rule which forbids or restricts the employment of married women and which is not applicable to married men is a discrimination based on sex prohibited by Title VII. Sprogis v. United Airlines, Inc., 444 F. 2d 1194 (7th Cir. 1971).

In all of the above-mentioned cases the discriminatory conduct complained of, arose out of company policies. There was apparently some advantage to, or gain by, the employer from such discriminatory practices. Always such discriminatory practices were employer designed and oriented. In the present case, Mr. Price's conduct appears to be nothing more than a personal proclivity, peculiarity or mannerism. By his alleged sexual advances, Mr. Price was satisfying a personal urge. Certainly no employer policy is here involved; rather than the company being benefited in any way by the conduct of Price, it is obvious it can only be damaged by the very nature of the acts complained of.

Nothing in the complaint alleges nor can it be construed that the conduct complained of was company directed policy which deprived women of employment opportunities. A reasonably intelligent reading of the statute demonstrates it can only mean that an unlawful employment practice must be discrimination on the part of the employer, Bausch and Lomb. Further, there is nothing in the Act which could reasonably be construed to have it apply to "verbal and physical sexual advances" by another employee, even though he be in a supervisory capacity where such complained of acts or conduct had no relationship to the nature of the employment.

It would be ludicrous to hold that the sort of...