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ZICHY v. CITY OF PHILADELPHIA

March 19, 1975

KATHLEEN ZICHY and JANE E. SCHOFER
v.
THE CITY OF PHILADELPHIA



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 We have before us cross motions for summary judgment in the instant case. For the reasons set forth below, we grant plaintiffs' motion for judgment to the extent of a declaration that the denial by defendant of the use of sick leave for maternity-related disabilities is illegal, and to the extent of an injunction against continued enforcement of the policy. By the same token, we deny defendant's motion to the extent it seeks judgment contrary to that which we have determined plaintiffs merit.

 Plaintiffs originally brought this action challenging the above described policy of the City of Philadelphia as unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and under the Civil Rights Act of 1871, 42 U.S.C. § 1983.

 In toto, plaintiffs request: declaratory and injunctive relief against the defendant's policy on the use of sick leave for maternity-related disabilities, damages for back pay, loss of benefits and promotions, humiliation and harassment plaintiffs have suffered, and any other relief this Court may determine.

 Jurisdiction of this action is under 28 U.S.C. § 1343(1) - (4), 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000e-5(f). We have previously certified the class of plaintiffs for this action under F.R.C.P. 23(b) (2) to consist of:

 
". . . all female persons currently and formerly employed by the City of Philadelphia from September 14, 1966, who, during the course of their employment, have been, are being, or will be caused to take non-paying maternity leave rather than being permitted to use accumulated sick leave for temporary disabilities caused or contributed to by pregnancy, childbirth, and the recovery therefrom, and those female employees who were caused to resign and accept positions with loss of seniority and benefits upon returning to work after recovering from said disability."

 As of 1973, defendant employed 32,000 persons, of whom a large percentage are women.

 Plaintiffs also raised in their complaint a question as to the denial of unpaid maternity leaves of absence from 1966 until September, 1973. Plaintiffs contend these denials were made on a sex discriminatory basis, but defendant denies this charge and the facts which plaintiffs allege in support of it. Since such dispute exists on the facts of this claim, plaintiffs do not seek summary judgment on it in the motion now before us, but instead request summary judgment only on the claim dealing with the sick leave and maternity disability question.

 In addition, plaintiffs seek in the current motion only a grant of summary judgment as to liability, with a reservation for later decision of the issue of relief. This is, plaintiffs at this time request only a declaration of the illegality of defendant's policy concerning sick leave and an injunction against continued enforcement of the policy. As we said at the outset of this opinion, because we believe bifurcation of liability and relief is the proper manner of deciding this case, we limit our decision today in accordance with plaintiffs' request.

 The Facts.

 Neither party disputes the facts relating to defendant's policy in the use of sick leave for maternity related disabilities.

 The City of Philadelphia is a municipal corporation organized under the laws of the Commonwealth of Pennsylvania, employs more than fifteen (15) persons, and has had since January 1, 1954, a sick leave plan for its employees. Under that plan, all permanent, Civil Service employees who work full time or part time in excess of twenty (20) hours a week earn sick leave as a form of compensation merely by coming to work every day. Such leave is earned at the rate of one and two-thirds (1 2/3) days per month, with a maximum permissible accumulation of 200 days.

 When taking sick leave, a city employee continues to earn his or her normal salary and to accrue seniority, does not lose the privilege of taking promotional examinations for the time out, has the time out credited for service and will receive the same raises as other employees in his or her classification who were not on sick leave. In addition, the employee continues to accumulate sick leave while on leave, will suffer no adverse effect on promotions, will resume the same position held prior to the commencement of such sick leave upon return, and will have no change in anniversary date of employment, pension plan, vacation time, and other fringe benefits as a result of using the sick leave.

 Section 21 of the Civil Service Regulations controls the granting and use of sick leave. Section 21.011 reads:

 
"21.011. Authorized Sick Leave -- includes, with the approval of the appointing authority, the absence from duty with pay of an employee because of his illness or non-service-connected injury, his appointments with doctors or other recognized practitioners in the treatment of such illness or injury to the extent of time required to complete such appointments, or his exposure to contagious disease."

 As a matter of practice, sick leave is granted for such diverse reasons as an alcoholic "hangover", elective surgery, lung cancer or emphysema, or broken legs from skiing. While such conditions can occur as readily in both men and women, sick leave is also granted for conditions which are unique to either sex. A man, for example, may use sick leave for a prostatectomy. Similarly, a woman may use sick leave for an abortion or miscarriage.

 Women are not, however, entitled under present practice to use sick leave for absence resulting from pregnancy or birth-related delivery, at least to the extent such pregnancy and delivery occur in "normal" fashion, that is, without complications. The city instead governs absence because of maternity and child birth under Civil Service Regulation 22.12, which reads:

 
"22.12 MATERNITY LEAVE. In accordance with Section 22.02 of these Regulations, a permanent employee shall be granted a maternity leave without pay. The employee shall retain her same position, if such leave does not exceed six (6) months duration."

 In accordance with this policy, the city has not granted paid sick leave to those employees who take a leave of absence because of pregnancy and have a child delivered without any complications during the pregnancy or the birth.

 We have noted to this point a distinction in the city's policy towards "normal" pregnancy and birth as opposed to pregnancy and birth with "complications". Such distinction merits some elaboration. While the regulations under which the city governs sick leave and maternity leave contain no express distinction between normal and complicated pregnancies and birth, the city contends, with supporting affidavit which plaintiffs do not challenge, that it does make such a distinction in practice. The city asserts that while it does not grant sick leave for normal pregnancy and birth, it does allow female employees to use accumulated sick leave for any complications that develop during the pregnancy. It is not necessary that such complication develop prior to the employee's beginning her leave of absence for maternity reasons. If complications develop during a maternity leave of absence, the employee may apply to have such period of time charged against sick leave until the employee recovers from the complications or exhausts her accumulated sick leave, whichever occurs first.

 As set forth in the above discussion, however, those women with normal, uncomplicated pregnancies and deliveries may not use sick leave to cover their maternity-related absence from work. These women must instead take the unpaid maternity leaves described above.

 For such women, the consequences of having to take maternity leave rather than using sick leave are significant. Besides receiving no pay for the period of absence, the employee on maternity leave loses the benefits, mentioned above, which she enjoys in the use of sick leave. During maternity leave, the employee accumulates neither seniority, sick leave, nor vacation time, her time required for annual increment and anniversary date is deferred for the period of the ...


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