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SMITH v. JOSEPH HORNE CO.

October 14, 1977

MARY C. SMITH, CAROL R. DiMAIO and HOWARD E. WATTS, JR., Plaintiffs,
v.
JOSEPH HORNE COMPANY INC., a Pennsylvania Corporation, Defendant



The opinion of the court was delivered by: COHILL

 Introduction

 This action is before us on plaintiffs' motion to amend their complaint. On August 4, 1975, the plaintiffs, two females and one male, filed their complaint, alleging that the defendant department store had discriminated against them on the basis of sex, thereby violating §§ 703(a)(1) and 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 451, 1343, and 2201.

 Procedure

 There are a number of steps to be taken before a plaintiff may file a civil action in court pursuant to the Civil Rights Act of 1964, and that procedure is not easily described.

 The victim of an alleged unlawful employment practice must preliminarily file a charge with the Equal Employment Opportunity Commission ("EEOC"). However, where a state or political subdivision has its own law prohibiting unfair employment practices, and establishes an authority to grant or seek relief from such practices, no charge may be filed with the EEOC before the expiration of 60 days after proceedings have been commenced under the state or local law, unless such proceedings have been earlier terminated. 42 U.S.C. § 2000e-5(c).

 The charges with the EEOC, however, must be filed within 180 days of the date that the alleged unfair practice occurred, or within 300 days if the plaintiff has filed charges with the state or local authority referred to above. 42 U.S.C. § 2000e-5(e).

 The EEOC has a practice known as "deferral," by which charges prematurely brought before it are "deferred," or referred, to the appropriate state or local agency, without being considered as "filed" with the EEOC; this prevents plaintiffs from losing any rights under Title VII because they mistakenly came to the EEOC first. This procedure received the approval of the United States Supreme Court in Love v. Pullman Co., 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972).

 After the state or local agency has completed its procedures, the EEOC must investigate the charge and make a determination as to whether or not there is reasonable cause to believe the charge is true. If there is not, the charge is dismissed. If the EEOC finds reasonable cause to believe the charge is true, it is required to send the parties a "determination letter" apprising them of its findings and then must attempt to resolve the problem through informal methods of conference, conciliation, and persuasion. 42 U.S.C. 2000e-5(b).

 Pertinent Facts

 Plaintiff, Mary Smith, was first employed by the defendant department store in 1965. Plaintiffs, Carol DiMaio and Howard Watts, began working for the defendant in 1970. At the time in question, all three were employed in defendant's wig department. On June 29, 1972, Smith and DiMaio filed charges with the EEOC, alleging discrimination by the defendant on the basis of sex in that the defendant was paying Watts (who later was to become a co-plaintiff) more than it was paying Smith and DiMaio for essentially the same work.

 On July 8, 1972, Watts was laid off. He alleged that the store let him go to remove the primary male basis of comparison with Smith and DiMaio and also in retaliation for the filing of charges with the EEOC by Smith and DiMaio. On July 8 and 15, 1972, Smith and DiMaio, respectively, filed additional charges with the EEOC, alleging retaliation based on the layoff of Watts. For reasons not apparent from the record, the three plaintiffs subsequently filed the joint complaint in this matter.

 On February 28, 1973, the EEOC issued a determination letter that there was reasonable cause to believe that defendant had violated Title VII by failing to pay equal wages to male and female employees performing substantially similar work and that defendant's actions taken against plaintiff Watts constituted a reprisal for the charges filed with the EEOC. On June 10, 1975, the EEOC notified the plaintiffs of their right to institute suit within 90 days therefrom, and on August 4th this suit was commenced.

 On February 18, 1975, plaintiff Smith filed another charge with the EEOC alleging retaliation against her for the earlier discrimination charge which she had filed. Smith left the employ of defendant on August 9, 1975. The EEOC did not issue any determination letter regarding Smith's February 18, 1975 charge but on May 18, 1976, the EEOC notified Smith of her right to sue within ninety days.

 Nowhere is there an allegation that any of the plaintiffs sought relief from the Pennsylvania Human Relations Commission before coming to the EEOC. The Pennsylvania Human Relations Commission is the state authority established by the Commonwealth of Pennsylvania to seek or grant relief in such matters.

 Motion to Amend

 The plaintiffs have moved to amend their complaint as follows:

 1. Plaintiffs moved to amend paragraphs, 6, 7 and 8 of the complaint to characterize their job classification as that of "Wig Stylist" and to amend their complaint further by adding a third count to plead hypothetically that if defendant classified the individual plaintiffs differently by job classification, such job classifications were not bona fide but were artificially created to permit defendant to compensate the male plaintiff Watts at a higher rate than female plaintiffs Smith and DiMaio, or alternately that defendant's failure to permit the female plaintiffs to function in the same job classification as the male plaintiff was a discriminatory job classification.

 This portion of the motion will be granted.

 Plaintiffs also moved to amend paragraph 6 of their original complaint to show that Smith is no longer employed by defendant, because of an alleged constructive discharge.

 This portion of the motion will be denied.

 2. Plaintiffs also moved to amend the complaint by adding a fourth count to state that on February 18, 1975 plaintiff Smith filed with EEOC additional charges averring retaliation against her by the defendant and also to allege that her leaving the ...


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