We have before us at this time defendant's motion for summary judgment, which will be granted.
This case involves an alleged discrimination on account of sex by the defendant, T.R.W., Inc., in the company's seniority system.
After considerable briefing and oral argument by the parties on defendant's motion to dismiss, this court, on December 17, 1974, in denying the motion found that "the plaintiff has nowhere to date alleged any affirmative conduct by the defendant which occurred in the 180 days preceding February 28, 1973 [the date she filed a complaint with the Equal Employment Opportunity Commission]."
While it is true that the complaint does charge in a conclusory way that the defendant's allegedly discriminatory conduct affected "hiring, seniority, layoff [and] recall " rights,
the last affirmative conduct directed toward the plaintiff was the March 1971 layoff which occurred two years prior to the filing of the complaint.
We then concluded that while plaintiff's allegations of "layoff" and "recall" were conclusory and not sufficient to relieve the plaintiff from eventually establishing that a discriminatory recall actually occurred within the 180 day period, such allegations appeared sufficient to justify a denial of a motion to dismiss. See, Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969).
We emphasized, however, that plaintiff would be required to show at least one discriminatory recall within 180 days prior to February 28, 1973, such an event being a jurisdictional prerequisite, and that if discovery revealed no such recall, a motion to dismiss (or a motion for summary judgment) might be appropriate.
As we pointed out in our unreported memorandum of December 17, 1974, Elizabeth Alleman, the plaintiff, alleged inter alia :
(a) She was hired by T.R.W. in March 1967 under a seniority system that wrongly discriminated in favor of male employees;
(c) She was recalled to work in May 1969, still under the discriminatory seniority system, but in an even worse relative position because of the seniority she lost during the layoff;
(d) On March 12, 1971 she was again laid off by T.R.W., based again on the discriminatory seniority system;
(e) She was never recalled to work;
(f) On February 28, 1973, she filed a complaint with the EEOC.
It is on the basis of these facts that plaintiff contends that defendant has violated Title VII of the Civil Rights Act of 1964, Equal Employment Opportunities, 42 U.S.C. §§ 2000e, et seq., and by way of the principle of pendent jurisdiction contends that defendant violated the Pennsylvania Human Relations Act, 43 P.S. §§ 951, et seq.3
In January of 1975 the Third Circuit Court of Appeals decided the case of Jersey Central Power & Light Co. v. Local Union 327, Etc. of I.B.E.W., 508 F.2d 687 which concerned among other things a plant-wide seniority system comparable to the system contained in the collective bargaining agreements in effect at T.R.W. during the periods in question in the instant case.
The Third Circuit held, inter alia, that "[A] seniority clause providing for layoffs by reverse order of seniority is not contrary to public policy and welfare and consequently is not subject to modification by court decree." (p. 705) The court further held that evidence that the plant-wide seniority system discriminated in the past and thus carried into the future the effects of such discrimination should not be permitted.
The Supreme Court granted certiorari and remanded the case to the circuit for further consideration in light of Franks v. Bowman Transportation Co., 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251, (1976), and ...