Lyon v. TEMPLE UNIV. OF COM. SYSTEM OF HIGHER ED.

• Decision Date: 15 January 1981
• Docket Number: No. 79-409.,79-409.
• Citation: 507 F. Supp. 471
• Parties: Robert LYON and Dennis S. Lebofsky and H. Frank Thornton and Nicholas Macri v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, and Marvin Wachman, in his official capacity as President of Temple University, and American Association of University Professors, Temple University Chapter.
• Court: U.S. District Court — Eastern District of Pennsylvania

507 F. Supp. 471

Robert LYON and Dennis S. Lebofsky and H. Frank Thornton and Nicholas Macri v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, and Marvin Wachman, in his official capacity as President of Temple University, and American Association of University Professors, Temple University Chapter.

No. 79-409.

United States District Court, E. D. Pennsylvania.

January 15, 1981.

COPYRIGHT MATERIAL OMITTED

Frank Finch, III, Stephen Sheller, Bruce Ludwig, Philadelphia, Pa., for plaintiff.

Marian Gafni, Philadelphia, Pa., for AAUP.

Matthew Strickler, Jill Douthett, Philadelphia, Pa., for Temple.

MEMORANDUM and ORDER

SHAPIRO, District Judge.

Plaintiffs are male professors at Temple University ("Temple") who allege that Temple and the American Association of University Professors ("AAUP") jointly and wilfully discriminated against plaintiffs on the basis of sex by paying them lower salaries than those paid to female professors of less or equal educational qualifications and/or experience. Plaintiffs charge defendants with violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d); the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1983, 1985 and 1986; the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.; and the Pennsylvania Equal Rights Amendment, Article I, § 28 of the Pennsylvania Constitution. Plaintiff Robert Lyon also claims a conspiracy among the defendants to inflict emotional distress upon him in violation of Pennsylvania law. Presently before the court is a motion by defendant AAUP to dismiss all counts of the complaint. For the reasons set forth herein the motion to dismiss is granted with respect to the Equal Pay Act claim and the claims under §§ 1985 and 1986 and denied without prejudice with respect to the § 1983 and pendent claims.

It is fundamental that in deciding a motion to dismiss, the well-pleaded allegations of the complaint are to be taken as true and the complaint is construed in the light most favorable to the plaintiff. The issue is not whether the plaintiffs will prevail on the merits but whether the plaintiffs are entitled to offer any evidence to support their claims. E. g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bethel v. Jendoco Construction Corporation, 570 F.2d 1168 (3d Cir. 1978).

The complaint alleges that the 1973-1976 collective bargaining agreement between Temple and AAUP included a clause, Article III, Paragraph E, which provided for the redressment of existing wage inequities based on race or sex for faculty members at Temple. The alleged purpose of Article III, Paragraph E was "to identify and correct any existing faculty salary inequities based on sex or race" (¶ 19) and "(1) to develop a comprehensive system for determining any internal inequities affecting women or minority faculty members; (2) to guide and advise departmental faculties, chairpersons and deans on redressing any such inequities; and (3) to hear appeals from persons who are dissatisfied with redressment decisions of departmental faculties, chairpersons and deans." (¶ 18). Pursuant to this provision, the faculty of the various schools and colleges at Temple allegedly reviewed the salaries of females and minority faculty members and awarded increases to those found to be entitled to this type of redressment. Male faculty who were not members of a minority were not eligible for these salary increases under Article III, Paragraph E.

Plaintiffs claim the implementation of Article III, Paragraph E resulted in substantial discrepancies in salaries between plaintiffs and certain females in their departments; these women are alleged to be equally or less qualified or to have less experience than plaintiffs. For example, plaintiff Lyon alleges that he was hired at Temple in 1957 and has been a tenured professor since 1963 but as of September 1, 1978, he was earning approximately $3,200 less than a female in his department who was hired in 1967 and elevated to associate professor in 1971. Plaintiffs Lebofsky, Thornton and Macri have alleged similar discrepancies as to their salaries in comparison to females within their departments.

All four plaintiffs filed complaints of discrimination against Temple with the Department of Labor, and each received a letter that his complaint under the Equal Pay Act could not be substantiated because the salary comparisons involved a small number of females rather than the entire department. Plaintiffs Lebofsky, Thornton, and Macri also filed complaints with appropriate state and local agencies and grievances with the AAUP but were denied redress. Construing these facts as true, we now address the counts of the complaint seriatim.

EQUAL PAY ACT

The Equal Pay Amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the "Act"), proscribes discrimination on the basis of sex in the compensation of equal work (with certain enumerated exceptions). This prohibition extends to two distinct entities, employers and unions. Section 206(d)(1) is directed to employers:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except ....

Section 206(d)(2) applies to unions:

No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.

The latter provision makes it clear that unions are not immune from the mandates of the Act.

But the Act is also clear that aggrieved employees have a cause of action against their employer only. Under 29 U.S.C. § 216(b), only an employer is liable for violations of 29 U.S.C. §§ 206 and 207. Section 16(b) provides in pertinent part:

Any employer who violates section 206 or 207 of this Act shall be liable to employees affected .... Action to recover such liability may be maintained against any employer. (Emphasis added)

Labor organizations are not "employers" for purposes of the Act unless the labor organization itself is acting as an employer, 29 U.S.C. § 203(d).

The Third Circuit held in Denicola v. G. C. Murphy Co., 562 F.2d 889 (3d Cir. 1977) that a labor union is not liable for contribution to an employer found in violation of the Act. Accord, Northwest Airlines v. Transport Workers Union of America, 606 F.2d 1350 (D.C.Cir.1979), cert. granted, 445 U.S. 902, 100 S.Ct. 3008, 65 L.Ed.2d 1111 (1980). Plaintiffs seek to limit this case to an action for contribution. However, the holding in Denicola was premised on the notion that "an employee may bring an action for back pay under the Equal Pay Act only against his or her employer. Therefore, we must reject the employer's ... contention that the union could be liable for back pay." Id. at 893. Accordingly, we hold that AAUP cannot be liable in an action by an employee for back pay or other monetary relief for violations of the Act.

Notwithstanding AAUP's insulation from employee claims for monetary relief, plaintiffs argue the union can still be liable for injunctive and declaratory relief under the Act. However, the statutory framework of the Act negates this contention as well.

Sections 15 and 17 of the Act, 29 U.S.C. §§ 215, 217, grant the district court jurisdiction to issue injunctive relief for violations of 29 U.S.C. § 206. 29 U.S.C. § 211, with one exception not relevant to this case, provides that "the Administrator shall bring all actions under Section 17 29 U.S.C. § 217 to restrain violations of this Act." (Emphasis added). This section has been construed to vest exclusive authority formerly in the Administrator, and now in the Equal Employment Opportunity Commission ("EEOC"),¹ to bring an action for injunctive relief. Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (3d Cir. 1943); Brennan v. Emerald Renovators, Inc., 410 F.Supp. 1057, 1062 (S.D.N.Y.1975); See, Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., 365 F.Supp. 1105, 1121 (E.D.Pa.1973) (Higginbotham, J.), modified 506 F.2d 735 (3d Cir. 1974); Britton v. Grace Line, Inc., 214 F.Supp. 295 (S.D.N.Y.1962). Thus, injunctions will lie against a union for violations of 29 U.S.C. § 206(d)(2), but only if the EEOC, not an employee, is the moving party.

In the absence of express authorization of a private action for damages, declaratory or injunctive relief, plaintiffs argue that a private cause of action can be implied from 29 U.S.C. § 206(d)(2) in light of Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). In Cannon, the Supreme Court, employing the four-point test set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), implied a cause of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. In determining whether to imply a statutory cause of action, the Supreme Court requires analysis of four factors: 1) whether a plaintiff is one of a class for whose especial benefit the statute was enacted; 2) whether there is a legislative intent to create or deny a remedy; 3) whether it is consistent with the underlying legislative scheme to imply a remedy; and 4) whether the cause of action is traditionally one relegated to state law. The analysis must begin with the language of the statute itself. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100...