EEOC v. Sears, Roebuck & Co.

• Decision Date: 31 January 1986
• Docket Number: No. 79 C 4373.,79 C 4373.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.
• Court: U.S. District Court — Northern District of Illinois

628 F. Supp. 1264

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.

No. 79 C 4373.

United States District Court, N.D. Illinois, E.D.

January 31, 1986.

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Karen H. Baker, Gerald D. Letwin and James P. Scanlan, E.E.O.C., Chicago, Ill., for plaintiff.

Charles Morgan, Jr., Pamela S. Horowitz, Howard T. Anderson and Paul F. Colarulli, Morgan Associates, Chartered, Washington, D.C., for defendant.

ON MOTION FOR PARTIAL SUMMARY JUDGMENT

NORDBERG, District Judge.

This matter is before the court on the motion of plaintiff Equal Employment Opportunity Commission ("EEOC") for partial summary judgment. For reasons set forth below, the EEOC's motion is denied.

Facts

In its motion, the EEOC moved the court to grant partial summary judgment against defendant Sears, Roebuck and Co. ("Sears") as to liability on the following claims:

1. Sears violated Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), by limiting the working hours of women pursuant to state protective laws.

2. Sears violated Title VII by maintaining a policy of refusing to hire pregnant applicants.

3. Sears violated Title VII by maintaining a policy in its Personnel Manual whereby women absent due to pregnancy-related disabilities were subject to lay-off during such absenses, but persons absent because of other temporary disabilities were not subject to lay-off during such absences.

4. Sears violated Title VII by maintaining a policy in its Personnel Manual of involuntary transfer of pregnant women when appearance was deemed to be a factor in the performance of the job.

5. Sears violated Title VII by maintaining a policy in its Personnel Manual of granting to a male employee a day's paid absence when the employee's wife gave birth, but not granting a day's paid absence to a female employee when she gave birth.

The period of liability for all of these claims commenced on August 30, 1971, two years prior to the filing of EEOC's charge against Sears. See infra n. 10.

The EEOC contended in its motion that there was no genuine issue of material fact as to Sears' liability on each of the above five claims. The EEOC submitted, in support of its motion, a summary of Sears' responses to the EEOC's First Request for Information¹ and the affidavit of Jane L. Dolkart, the EEOC's Director of the Litigation Enforcement Division of the Office of Systematic Programs, with attached Exhibits.²

In its Response to the EEOC's motion for partial summary judgment, Sears asserted that: (1) each of the EEOC's five claims was based upon a long-discontinued policy; (2) material issues of fact existed with respect to each claim; (3) the EEOC was not entitled to summary judgment as a matter of law, because it failed to meet its initial burden of demonstrating that unlawful discrimination had been a regular procedure or policy followed by Sears; and (4) the injunctive relief sought by the EEOC was moot and the monetary relief barred by the doctrine of laches. Sears attached to its Response various documents refuting the EEOC's claims that Sears violated Title VII by limiting the hours of female employees pursuant to state protective laws,³ by maintaining a policy of refusing to hire pregnant applicants,⁴ by maintaining a policy whereby women absent due to pregnancy-related disabilities were guaranteed less protection from reductions in force than employees receiving disability benefits,⁵ and by maintaining a policy of involuntary transfer of pregnant women.⁶

The EEOC, in its Reply to Sears' Response, asserted that the fact that all of the alleged discriminatory policies had ceased was not a defense. The EEOC also asserted that it need not produce the number and identity of the persons affected by the policies in the Personnel Manual because, absent evidence by Sears that the policies were not implemented, the necessary presumption is that the policies were implemented and did affect individuals. In addition, the EEOC contended that both injunctive and monetary relief were appropriate, and that there was no genuine issue of material fact as to Sears' liability on each of the claims, except for the claim that Sears violated Title VII by limiting the working hours of women pursuant to state protective laws.⁷ The EEOC attached to its Reply a Sears Directive which ordered that the policy of allowing a day off with pay for male employees whose wives gave birth be discontinued effective October 1, 1974.

After the EEOC filed its Reply Brief,⁸ on April 7, 1982, the EEOC produced a Statement of Issues. All five of the claims on which the EEOC sought a partial summary judgment were included in the April 7, 1982 Statement of Issues. The EEOC submitted another Statement of Issues on October 15, 1982. In the October 15, 1982 Statement of Issues, the EEOC omitted the claims that Sears violated Title VII by limiting the working hours of women pursuant to state protective laws and by maintaining a policy of refusing to hire pregnant applicants. Therefore, the EEOC had withdrawn these claims against Sears. This is confirmed in the transcript.⁹

Subsequently, in an order dated January 27, 1984, the court stated the following:

The April 7, 1982 statement was the clarification of the definitive statement of issues of December, 1981 ordered by Judge Grady to be the final statement of issues in the case. EEOC will not be permitted to expand its case beyond the specific job categories listed in the April 7, 1982 statement.

Memorandum Opinion and Order of January 27, 1984, p. 3. Thus, the court invalidated those portions of the October 15, 1982 Statement of Issues which added claims not included in the April 7, 1982 Statement. However, the court did not invalidate the portions of the October 15, 1982 Statement of Issues which withdrew claims included in the April 7, 1982 Statement. Therefore, the EEOC's withdrawal stands, and the court denies the EEOC's motion for partial summary judgment as to these two claims, because they have been withdrawn by the EEOC.

The remaining claims on which the EEOC seeks partial summary judgment are that Sears violated Title VII by: (1) maintaining a policy whereby women absent due to pregnancy-related disabilities were guaranteed less protection from reductions in force than employees receiving disability benefits; (2) maintaining a policy of involuntary transfer of pregnant women; and (3) maintaining a policy of granting to a male employee a day of paid absence when the employee's wife gave birth, but not granting a day of paid absence to a female employee when she gave birth.

Summary Judgment In a Title VII Disparate Treatment Action

The EEOC has moved for partial summary judgment as to Sears' liability on these three claims. On a motion for summary judgment, the moving party has the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Cedillo v. International Association of Bridge and Structural Iron Workers, 603 F.2d 7, 10 (7th Cir.1979). The non-moving party is entitled to all reasonable inferences that can be made in its favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Matthews v. Allis-Chalmers, 769 F.2d 1215 (7th Cir.1985) (per curiam). However, the non-moving party may not merely rely on conclusory pleadings to withstand summary judgment. In responding to a motion for summary judgment, a non-moving party must set forth specific facts in affidavits or otherwise show that there are genuine issues that must be decided at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), reh. denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983); Fed. R.Civ.P. 56(e).

On a motion for summary judgment in a Title VII case, consideration of whether the moving party has shown that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law necessarily involves an examination and application of the Title VII burden of proof analytical framework. In a recent case, Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir.1985), the Seventh Circuit outlined the Title VII burden of proof framework for a government or class action alleging a pattern or practice of disparate treatment. The Seventh Circuit first stated that the general Title VII burden of proof framework in government or class disparate treatment cases is "essentially comparable" to the framework for individual disparate treatment actions, as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), but "the content of the specific stages of that framework will be different." Coates, 756 F.2d at 532.

The general Title VII burden of proof framework for disparate treatment cases, as set out in McDonnell and Burdine, consists of the following stages: (1) the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination; (2) if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action; and (3) should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination. Burdine, 450 U.S. at 252-253, 101 S.Ct. at 1093. In private, nonclass Title VII disparate treatment actions such as McDonnell and Burdine,...