that J. C. Penney ". . . and certain (of its) officers, employees and representatives . . . agreed and conspired to discriminate . . .," does not state a claim under 42 U.S.C. § 1985(3).
The Court is cognizant that a proper claim under § 1985(3) must allege, 1) a conspiracy; 2) for the purpose of depriving a person or class equal protection of the laws or equal privileges and immunities; 3) an act in furtherance of the conspiracy; 4) whereby one was injured in his person or property or deprived any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Moreover, the complaint must clearly allege, with specific facts, both the discrimination and the existence of a conspiracy. Bethel v. Jendoco Construction Corp., 570 F.2d 1168 (3d Cir. 1978); Robinson v. McCorkle, 462 F.2d 111 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1972).
In assessing the instant claim, we cannot conclude that Aungst has adequately alleged the existence of a conspiracy. Initially, we note that the complaint fails to either identify or attempt to identify the individuals involved, and failed to supply Any factual details of the conspiracy beyond mere conclusions. On that basis alone, to-wit, that Aungst failed to allege a conspiracy with "sufficient concreteness," the § 1985(3) claim may be dismissed. See, Bethel v. Jendoco Construction Corp., supra. Nonetheless, in view of the anticipated motion for leave to amend should we dismiss on that basis, the Court further notes our subscription to the tenet that a corporation cannot conspire with itself any more than an individual can conspire with himself. See, e.g. Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir. 1960) (dictum); Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th Cir. 1952). While we are all cognizant of authority which would permit a claim of conspiracy against a business entity If multiple instances of discrimination and harassment were alleged, Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D.Pa.1974); there are no such substantive allegations in the instant case to indicate that the acts complained of constitute an avowed corporate policy of sex discrimination.
Therefore, on the basis of the facts in the instant case, we hold that the alleged conspiracy between the "agents" of J. C. Penney cannot support a claim under § 1985(3). See, e.g., Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Johnson v. University of Pittsburgh, 435 F. Supp. 1328 (W.D.Pa.1977); Keddie v. Pennsylvania State University, 412 F. Supp. 1264 (M.D.Pa.1976). The § 1985 claim, as well as the attendant § 1986 and § 1988 claims shall be dismissed with prejudice.
J. C. Penney next asserts that all claims arising under Article I, Section 28 of the Pennsylvania Constitution should be dismissed. J. C. Penney argues, alternatively, that the Court should decline pendent jurisdiction because the subject constitutional provision has not been authoritatively interpreted by the Pennsylvania courts, or dismiss the claim because the provision has been interpreted by lower Pennsylvania courts as failing to create a cause of action against private persons.
The Court is mindful that the exercise of pendent jurisdiction is a matter for our discretion. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). We shall exercise that discretion, at least for the moment, in favor of assuming jurisdiction, assuming that the same evidence supports this pendent claim. Nonetheless, should it appear that this constitutional claim either generates discovery beyond that required for the Title VII claim, or would, otherwise, delay a resolution, we shall not hesitate to reconsider our position. Therefore, the motion to dismiss the constitutional claim shall be denied without prejudice.
J. C. Penney further asserts that all claims arising under the 14th Amendment should be dismissed, as the complaint fails to allege the requisite element of "state action." Notably, Aungst does not dispute J. C. Penney's assertion. Aungst explains, by way of counsel's brief, that the complaint does not seek relief under the 14th Amendment. Rather, reference is made to the 14th Amendment solely to identify a constitutional source for relief sought under the cited statutes. Therefore, only to the extent there Are claims directly based on the 14th Amendment, they shall be dismissed with prejudice.
J. C. Penney next asserts that all claims which were not the subject of Aungst's EEOC charge should be dismissed. J. C. Penney contends, therefor, that Aungst must be limited to those issues concerning the dress code, overtime assignments, and the "head of household" requirement.
Among the jurisdictional prerequisites to a Title VII action is the filing of charges with the EEOC. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). This requirement, as all jurisdictional requirements, is accorded liberal construction in order to effectuate the underlying policies of the act. Glus v. G. C. Murphy Co., 562 F.2d 880 (3d Cir. 1977). Notably, we recently held that a complaint may, under proper circumstances, exceed the administrative charge. Morris v. City of Pittsburgh, 445 F. Supp. 981 (W.D.Pa.1978). Nonetheless, we must adhere to the precise language of Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), to-wit:
". . . the parameters of the civil action in the district court are defined by the Scope of the EEOC investigation which can Reasonably be Expected to grow out of the charge . . ." (emphasis added).
See, Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978).
In the instant case, the Court has carefully examined Aungst's EEOC charge. We conclude that it is couched in unusually specific language. The alleged instances of discrimination are limited, and there is no indication that the charge is aimed at any facility other than that located in Altoona, Pennsylvania. Consequently, we believe that Aungst must be bound by the specificity of her charge and the scope of investigation and conciliation reasonably expected therefrom. In our estimation, it would be unconscionable to condone such an extreme elaboration of claims from the EEOC charge.
Therefore, all claims not contained in the EEOC charge shall be dismissed with prejudice.
Finally, J. C. Penney asserts that all claims relating to the "head of household" requirement should be dismissed. J. C. Penney argues that Aungst complied with the requirement, suffered no harm and, therefor, lacks standing. We disagree. Aungst is no less an aggrieved party because she complied with an alleged discriminatory requirement. Standing in civil rights actions must be broadly construed. See, Rosen v. Public Service Electric and Gas Co., 477 F.2d 90 (3d Cir. 1973). We shall permit August to represent the claims of the class with regard to the "head of household" requirement. Nonetheless, the Court cannot permit Aungst to recover personally, since she failed to file a timely EEOC charge on this matter, 42 U.S.C. § 2000e-5(e); United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). The certificate was signed by plaintiff on January 29, 1971. Her EEOC charge was filed July 17, 1974. Her complaint was filed November 3, 1977. Therefore, the motion to dismiss the "head of household" claims will be granted with regard to Aungst's personal claim, but denied as to the claims of the class.
MOTION FOR CLASS ACTION DETERMINATION
Aungst has the burden of establishing, with specific factual allegations, that she meets the stringent requisites for class certification. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975). After a thorough analysis of the present record and submissions, the Court finds that Aungst has satisfied the "numerosity," "commonality", "typicality" and "adequacy" requirements of Fed.R.Civ.P. 23(a)(1), (a)(2), (a)(3) and (a)(4), respectively. Moreover, we conclude that Aungst has satisfied the mandates of Fed.R.Civ.P. 23(b)(2). Nonetheless, the class description requires further limitation.
Initially, we restrict the class to women at J. C. Penney's Logan Valley Mall retail facility located in Altoona, Pennsylvania. J. C. Penney proffered unrefuted affidavits to the effect that the dress code and overtime assignments were matters of discretion with the manager of the Altoona facility. Notably, Aungst did not allege that women in other facilities were affected by these local conditions. Additionally, Aungst failed to refute a J. C. Penney affidavit to the effect that the "head of household" requirement, albeit a nation-wide policy, applied equally to male and female employees. At best, Aungst has identified a local discriminatory application of an otherwise non-discriminatory provision. There is no reason, then, to extend the class beyond the Altoona facility.
The class must be further restricted to those women who could have filed a charge with the EEOC at the time Aungst filed her charge. See, Wetzel v. Liberty Mutual Insurance Co. supra. Therefore, women whose claims arose more than 300 days before Aungst filed on July 17, 1974, will be barred by the statute of limitations in section 706(d) of Title VII, 42 U.S.C. § 2000e-5(e).
An appropriate order shall issue.
AND NOW, to-wit, this 23rd day of August, 1978, for the reasons expressed in the foregoing Opinion,
IT IS ORDERED that the claims arising under 42 U.S.C. §§ 1985, 1986 and 1988; the claims arising under the 14th Amendment; and the claims not included in the EEOC charge shall be and hereby are DISMISSED.
FURTHER, it is ORDERED that plaintiff be and hereby is certified, pursuant to Fed.R.Civ.P. 23(a) and (b)(2), to represent a class delineated as all women employed by defendant who could have filed charges with the EEOC on or after July 17, 1974, all women presently employed by defendant and all women who may be employed by defendant in the future who were, are, or in the future may be, affected by the policies of defendant which were the subject of plaintiff's EEOC charge of discrimination with respect to:
a) Defendant's dress code;
b) Defendant's overtime policy;