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November 28, 1978

Edith J. ATKINSON and Babcock Education Association, Plaintiffs,

The opinion of the court was delivered by: COHILL


 The Defendant has moved to dismiss all three counts. It contends that a school board sick leave policy which excludes pregnancy is not sex-based discrimination proscribed by Title VII. As to Count 2, the Defendant originally contended that a school board could not be sued as a "person" under 42 U.S.C. § 1983; however, at oral argument in light of recent appellate decisions it abandoned this position and instead asserted that the § 1983 claim is barred since it was not administratively processed prior to institution of the federal suit. Finally, the Defendant has moved to dismiss Count 3, the pendent state claim, for lack of federal jurisdiction of an alleged violation of The Pennsylvania Human Relations Act.

 The Plaintiff school teacher has moved for Summary Judgment on Count 2, the § 1983 claim, suggesting that undisputed facts establish that she was denied a property right established under Pennsylvania law by official action of the school board.

 Several recent Supreme Court decisions compel our disposition of Counts 1 and 2. In General Electric v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), that Court held that a pregnancy exclusion in an otherwise comprehensive employee disability insurance program was not violative of Title VII. This decision was reaffirmed more recently in Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S. Ct. 347, 54 L. Ed. 2d 356 (1977). A specific issue in that case was whether the employer's practice of allowing sick pay to employees disabled by reason of sickness or injury, but not to those disabled by pregnancy, was lawful. Finding Gilbert controlling, the Supreme Court held that it was, 434 U.S. at 144-45. For purposes of deciding whether the plaintiffs have stated a claim under Title VII, we see little difference between the facts of Nashville Gas and the facts in this case. Clearly, the Plaintiffs' Count 1 has failed to state a claim for which relief could be granted under the current state of Title VII law, and the Defendant's Motion to Dismiss this count will be granted.

 Shortly after the Supreme Court denied the claims of the plaintiffs in Nashville Gas, it opened a different avenue of relief for the same type of claim in its decision in Monell v. Department of Social Sciences, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In that case city employees of the school board and department of social services brought suit under § 1983 charging that a city regulation requiring pregnant employees to take unpaid leaves of absence violated their constitutional rights. The district court had acknowledged a constitutional due process violation but held the city agencies and officials immune from suit under § 1983. The Supreme Court, reversing its earlier decision in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), held that local government officials and local school boards were within the ambit of § 1983. After a lengthy examination of the legislative history and judicial interpretation of § 1983, the Court concluded:

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom' even though such a custom has not received formal approval through the body's official decisionmaking channels. 436 U.S. at 690-91, 98 S. Ct. at 2036 (footnotes omitted)

 Seeing no merit to Defendant's alternate argument that the § 1983 claim is barred as not having been administratively processed, we will deny the Motion to Dismiss Count 2.

 We now reach the Plaintiff's Motion for Summary Judgment on Count 2. At argument, both sides admitted that there are no facts in dispute. The essential facts supporting the § 1983 claim are these: (1) the Plaintiff teacher had a property right in her continued employment and the use of her sick days under the Pennsylvania Public School Code and Pennsylvania case law; (2) the Defendant School Board denied the Plaintiff the use of her accumulated sick days; and (3) such denial was pursuant to an official policy of the Defendant School Board. These undisputed facts establish a Prima facie case of liability under § 1983 as recently reinterpreted in Monell, and the Plaintiff's Motion for Summary Judgment against the Defendant on the issue of liability is granted.

 We are left with Count 3, the pendent state claim under the Pennsylvania Human Relations Act, and the Defendant's Motion to Dismiss this claim for lack of jurisdiction. While we disagree with the contention that the Plaintiffs' right to file federal suit is limited to the authority granted by its right-to-sue letter issued by the Equal Employment Opportunity Commission, we nevertheless decide, as a matter of discretion, to dismiss Count 3. Pendent jurisdiction is a creature of judicial creation, and the courts therefore have wide discretion in determining if a claim for which there is no independent federal jurisdiction may properly be appended to a valid federal claim, United Mine Workers v. Gibbs, 383 U.S. 715, 725-27, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Mahone v. Waddle, 564 F.2d 1018, 1026 (3d Cir. 1977).

 There are several reasons for declining to hear this claim. First, although the state agency responsible for processing employment discrimination claims was given a perfunctory opportunity to investigate this claim, it deferred to the federal Equal Employment Opportunities Commission which pursued the claim under federal standards. Therefore, the state agency never processed this claim under state standards or had a meaningful opportunity to render a decision. Second, although we might anticipate its decision under recent Pennsylvania case law, we hesitate to do so in an area pregnancy discrimination as gender-based discrimination where the appellate courts of the Commonwealth of Pennsylvania are in disagreement with the bases of decision in similar cases decided by the United States Supreme Court. (Compare General Electric v. Gilbert, Supra, with Anderson v. Upper Bucks County Area Vocational Technical School, 30 Pa.Cmwlth. 103, 373 A.2d 126 (1977).) By granting summary judgment for Plaintiffs on Count 2, we have already decided that the school teacher Plaintiff had the right to her accumulated sick leave under Pennsylvania law. However, we prefer not to litigate separately a claim under the Pennsylvania Human Relations Act where we might become involved in interpreting the sex discrimination question under that Act without a prior determination by the state agency. Finally, since liability has been established under § 1983 and only the question of damages remains, the state claim would, as a practical matter, be superfluous at this point. For all these reasons, the Plaintiff's claim at Count 3 is dismissed.

 An appropriate order will be entered.


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