Pedreyra v. Cornell Prescription Pharmacies

• Decision Date: 22 January 1979
• Docket Number: Civ. A. No. 77-K-943.
• Citation: 465 F. Supp. 936
• Parties: Joyce L. PEDREYRA, Plaintiff, v. CORNELL PRESCRIPTION PHARMACIES, INC., a Colorado Corporation, Defendant.
• Court: U.S. District Court — District of Colorado

465 F. Supp. 936

Joyce L. PEDREYRA, Plaintiff, v. CORNELL PRESCRIPTION PHARMACIES, INC., a Colorado Corporation, Defendant.

Civ. A. No. 77-K-943.

United States District Court, D. Colorado.

January 22, 1979.

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Leslie M. Lawson, Feiger & Lawson, Denver, Colo., for Joyce L. Pedreyra and her successor, Donald Pedreyra.

Thomas L. Roberts, Walberg & Pryor, Denver, Colo., for Cornell Prescription Pharmacies, Inc.

KANE, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff brought this employment discrimination action alleging that defendant Cornell Prescription Pharmacies, Inc., engaged in certain discriminatory activities, gender-based wage discrimination and retaliatory discharge, which were in violation of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq., and the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., as amended by the Equal Pay Act of 1963 (1977). Plaintiff was terminated after she filed charges of sex discrimination in 1977 with the Equal Employment Opportunity Commission, the Colorado Civil Rights Commission, and the Wage and Hour Division of the United States Department of Labor. Plaintiff prays for relief in the form of back wages, interest, lost fringe benefits, and attorney's fees and costs.

This cause was filed by plaintiff on October 11, 1977. Plaintiff died on May 26, 1978 and a suggestion of death pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure was filed on June 30, 1978. Without objection from defendant, the court granted a substitution of parties on July 7, 1978 substituting Donald Pedreyra, surviving spouse and representative of the deceased as plaintiff. Joyce L. Pedreyra's employment discrimination action survives under the Colorado survival statute, XX-XX-XXX et seq., C.R.S.1973. All references hereinafter to "plaintiff" are to Joyce L. Pedreyra.

The following facts are found:

1. Joyce L. Pedreyra received a degree in pharmacy from the University of Colorado in 1953 and became a licensed pharmacist in June, 1954.

2. Defendant, Cornell Prescription Pharmacies, Inc., is a Colorado corporation engaged in the pharmacy business in two locations, the Denver store and the Lakewood store.

3. Plaintiff was employed by defendant as a licensed pharmacist on four separate occasions: (a) from 1963 to November, 1966 (b) from April, 1968 to January, 1969 (c) from March, 1969 to January, 1971 and (d) from January 1, 1973 to June 10, 1977.

4. Plaintiff's claims in this action arise from her employment during the last period, January, 1973 through June 10, 1977.

5. For the pay period February 28, 1973 through April 1, 1974 plaintiff was paid a salary of $1,100 per month while the four male pharmacists employed during the same period earned from $100 to $150 a month more.

6. For the pay period April 17, 1974 through June 10, 1977 plaintiff was paid a salary of $1,150 a month while the male pharmacists employed during the same period earned from $150 to $450 a month more. (One male pharmacist was briefly employed for two months in 1976 at a salary of $1,100 a month.)

7. Defendant employed one other female licensed pharmacist during this period who worked from January 1, 1973 through November, 1973 at a salary of $800 per month.

8. Defendant designated plaintiff as "manager" of defendant's Denver store in reports filed with the Colorado State Board of Pharmacy for the following periods: (a) July 2, 1966 through November 30, 1966; (b) July 1, 1973 through May 13, 1974; and (c) May 25, 1976 through March 24, 1977.

9. While employed by defendant, plaintiff served as a preceptor and was responsible for supervising intern and extern pharmacists for defendant.

10. Plaintiff filed a charge of sex-based wage discrimination with the Equal Employment Opportunity Commission (EEOC) on January 1, 1977.

11. On January 26, 1977 EEOC notified plaintiff that her charge would be deferred to the Colorado Civil Rights Commission for 60 days. EEOC also forwarded plaintiff's complaint to the Wage and Hour Division of the United States Department of Labor.

12. On February 23, 1977 plaintiff filed a charge of discrimination with the Colorado Civil Rights Commission. A copy of this charge was sent to defendant.

13. On March 31, 1977 EEOC assumed jurisdiction over the charge and a copy of this notice was sent to defendant.

14. On May 27, 1977 a Wage and Hour Division investigator met with Mr. Murray Cornell, principal owner of defendant corporation, and his attorney to inform them of the result of the Equal Pay Act charge investigation. Defendant was informed that the Department of Labor had concluded that defendant was in violation and owed plaintiff back pay under the act. On the same day Mr. Cornell gave plaintiff two weeks notice of termination.

15. On June 3, 1977 EEOC notified plaintiff and defendant's attorney that it concluded that it did not have jurisdiction over the charge.

16. On June 10, 1977 plaintiff was terminated by defendant.

17. On October 14, 1977 EEOC reopened plaintiff's case upon receiving additional jurisdictional information as to the number of persons employed by defendant.

18. On October 10, 1977 plaintiff filed a second charge with EEOC alleging that she had been wrongfully discharged by defendant in retaliation for filing charges of discrimination.

19. On October 20, 1977 EEOC notified plaintiff that her second complaint would be deferred to the Colorado Civil Rights Commission for 60 days.

20. On November 2, 1977 EEOC notified plaintiff that it had assumed jurisdiction over her second complaint.

21. On November 21, 1977 plaintiff requested a Notice of Right to Sue on both of her EEOC complaints and the Right to Sue Letters were issued for both charges on November 22, 1977.

22. On December 12, 1977 plaintiff underwent a biopsy on an out-patient basis. Breast cancer was diagnosed.

23. Plaintiff was physically able to work as a registered pharmacist on a full-time basis until February 8, 1978, at which time her physical condition prevented her from working on a full-time basis.

24. Plaintiff died on May 26, 1978.

25. The court granted a motion for substitution of parties on June 30, 1978 substituting Donald Pedreyra, husband of the deceased plaintiff as party plaintiff.

26. After her termination, plaintiff received $3,364 in unemployment compensation benefits charged to the account of defendant, Cornell Prescription Pharmacies, Inc.

I JURISDICTION

Defendant denies jurisdiction on three grounds, that it is not an "employer" within the meaning of Title VII, that it is not an "employer" under the Equal Pay Act because it does not engage "in commerce" within the meaning of that statute, and that the Fair Labor Standards Act provides no private right of action for retaliatory discharge. Although this court ruled that these jurisdictional issues were resolved in favor of the plaintiff at a hearing on August 4, 1978, defendant's arguments merit discussion at this time.

Section 2000e(b) of Title VII defines employer as follows:

The term "employer" means a person engaging in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . ..

The requirement of 15 or more employees has been held to constitute a jurisdictional prerequisite. Hassell v. Harmon Foods, Inc., 454 F.2d 199 (6th Cir. 1972).

At trial defendant's accountant, John C. Nielson, testified that during 1976-1977 there were no quarters in which defendant reported 14 or fewer employees on its payroll. Defendant contends that Title VII requires that only full-time employees working on each working day (Monday through Saturday when defendant's stores were open for business) can be counted for satisfaction of the 15 or more employees requirement. In support of its argument, defendant cites Dumas v. Town of Mt. Vernon, 436 F.Supp. 866 (S.D.Ala.1977) where the court held that the town had never carried more than twelve persons on its full-time payroll and therefore did not qualify as an "employer" under Title VII. That case, however, is distinguishable in that plaintiff was attempting to include CETA program employees, selected and paid by the CETA office and the court ruled that since the CETA employees were not selected, controlled or paid by the City they could not be considered employees. The employees at issue here are persons who worked less than 40 hours and were hired, controlled and paid by defendant.

It has been consistently held that Title VII is remedial in nature and should be given the broadest interpretation consistent with its purpose. Parham v. Southwestern Bell Telephone, 433 F.2d 421 (8th Cir. 1970). In addition, it has been held that liberal construction should also be given to the definition of "employer" so as to carry out the Congressional purpose of eliminating inconvenience, unfairness and humiliation of discrimination. Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977).

In the debates which preceded the passage of Title VII it was made clear that "the term `employer' is intended to have its common dictionary meaning" and that employers with part-time or seasonal staffs were intended to be covered by the act "when the number of employees exceeds the minimum figure." 110 Cong.Rec. 7216-7217 (April 8, 1964). Thus courts have focused on the nature of the relationship of the employees and not on the number of hours worked each day. It is also of critical significance that the statute itself does not limit the definition of employee by the number of hours worked each day.

In Pascutoi v. Washburn-McReavy Mortuary, Inc., 11 E.P.D. ¶ 10,442 (D.Minn.1977) the court held part-time workers would be counted as employees even though they did not work every working day in the calendar week since they had been on defendant's payroll for...