The opinion of the court was delivered by: LUONGO
This civil rights action arises out of alleged sex discrimination in the employment policies and practices of defendant Temple University. Presently before me are the defendants' motions to strike certain portions of the complaint, Fed. R. Civ. P. 12(f), and for partial summary judgment, Fed. R. Civ. P. 56. For the reasons hereafter stated, I conclude that certain portions of the complaint must be stricken, and that the defendants are entitled to partial summary judgment as to certain claims.
Plaintiffs Lyndall Molthan, Bernice Torrance, and Rosalie A. Cohen filed their complaint on May 15, 1975, on behalf of themselves and all others similarly situated. The complaint alleges discrimination against women "in the hiring, promotion, tenure, salary and placement of women employed or applying for faculty, administrative and professional positions within Temple University," and seeks injunctive and declaratory relief, as well as compensatory damages, under the First and Fourteenth Amendments to the United States Constitution, the 1871 Civil Rights Act (42 U.S.C. § 1983), Executive Order 11,246, the Equal Pay Act (29 U.S.C. § 206(d)), Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17), and certain Pennsylvania statutes. The plaintiffs have since withdrawn all claims based on the executive order and all claims based on state law. Plaintiffs' Answer to Defendants' Motion to Dismiss (Document No. 25) paras. 7, 9. Jurisdiction is based on 28 U.S.C. §§ 1331(a), 1343(3) and (4), 42 U.S.C. § 2000e-5(f)(3), and the Fourteenth Amendment.
The defendants filed motions to dismiss under Rule 12(b)(6), a motion to strike under Rule 12(f), and, some time later, a motion for partial summary judgment as to plaintiff Molthan. Fed. R. Civ. P. 56(c). The plaintiffs filed a motion for class action certification, which is not presently before me, and an answer and supporting Memorandum of Law With Respect to Defendants' Motions. Many of the issues raised in the defendants' motions have been resolved between the parties, and only two issues remain for disposition in this opinion.
The complaint alleges the following facts. Plaintiff Molthan graduated with honors from Temple University School of Medicine in 1949. From the early 1950's through the late 1960's, she was appointed to progressively higher positions at Temple, "including the dean's appointment as instructor in the Department of Medicine in 1954; a dean's appointment as assistant professor in the Department of Medicine in 1959; a dean's appointment as associate professor in the Department of Medicine in 1965; and a presidential appointment as associate professor in the Department of Medicine in 1966." Complaint para. 21. In May of 1969, shortly after she accepted a consultant position at another institution, Molthan was "demoted" to a non-tenured dean's appointment as clinical associate professor. Although this consultant position required only four hours of service per month, and although Molthan continued to work "a full 35-hour week" at Temple University Hospital after she accepted the outside position, Molthan was made a "clinical," or part-time, faculty member (and thus lost her tenure) "allegedly as a consequence" of accepting that position. Id. PP 24-25, 27. These actions were taken despite the fact that male faculty members earning "comparable and more extensive consultancy salaries" were not demoted to non-tenured positions. Id. P 26. Moreover, "[throughout] her association with Temple University, Dr. Molthan has earned a lesser salary than males working in comparable positions in other clinical laboratories." Id. P 22. She is presently "a Clinical Associate Professor in the Department of Medicine, a full time employee of the University, and Administrative head of the [blood] bank and transfusion service of Temple University Hospital." Id. P 6.
The defendants move under Rule 12(f) to strike paragraphs 29 and 30 of the complaint. Rule 12(f) provides:
"Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Paragraphs 29 and 30 of the complaint compare plaintiff Molthan's annual salary for 1968 and 1972, respectively, with the salaries earned in those years by blood bank personnel in comparable positions in other area hospitals. The defendants argue, quite properly, that the salaries paid to other employers' personnel have no bearing on Molthan's Equal Pay Act claim inasmuch as the Act plainly applies only to disparities in the salaries paid to two or more employees of a single employer. 29 U.S.C. § 206(d) (1970). With respect to Molthan's claim under the 1871 Civil Rights Act, the issue is not as clear. The salaries paid at other hospitals could conceivably be relevant under some theory of § 1983 liability.
Molthan has not, however, asserted any theory of liability that would make this information relevant. The plaintiffs' answer to the defendants' argument, simply stating that the information is "relevant to show that [Molthan's] disparity in pay can only be explained on the basis of her sex,"
does not cure the deficiency. Accordingly, I will grant the motion to strike, except with respect to the first sentence of each paragraph, which sets forth only Molthan's salary during the pertinent year.
The defendants have also moved for summary judgment as to Molthan's claims under the Equal Pay Act and Title VII. Rule 56(c) provides in pertinent part:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
"The law is clear that one who moves for a summary judgment has the burden of demonstrating that there is no genuine issue of fact." Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951), quoted with approval in Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977). In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n.11, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).
The pertinent section of the Equal Pay Act, 29 U.S.C. § 206(d)(1) (1970), reads as follows:
"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 where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."
In every Equal Pay Act case, "the threshold question always is: are the jobs [equal?]" Walker v. Columbia University, 407 F. Supp. 1370, 1374 (S.D.N.Y. 1976). Moreover, "[while] the standard of equality is clearly higher than mere comparability yet lower than absolute identity, there remains an area of equality under the Act the metes and bounds of which are still indefinite." Brennan v. City Stores, Inc., 479 F.2d 235, 238-39 (5th Cir. 1973) (footnotes omitted); accord, ...