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HERD v. COUNTY OF ALLEGHENY

January 16, 1979

Mary Virginia HERD, Plaintiff,
v.
COUNTY OF ALLEGHENY, Court of Common Pleas of Allegheny County et al. Mary Virginia HERD v. COUNTY OF ALLEGHENY



The opinion of the court was delivered by: WEBER

This is an employment discrimination suit for injunctive relief and damages brought by the plaintiff, Mary Virginia Herd against defendants, the Court of Common Pleas of Allegheny County, the Honorable Henry Ellenbogen, the Honorable Michael J. O'Malley and Charles H. Starrett. The plaintiff is a court reporter employed by the Court of Common Pleas of Allegheny County. Defendant the Court of Common Pleas of Allegheny County is the court of general jurisdiction for Allegheny County. Defendant the Honorable Henry Ellenbogen was President Judge of the former Court of Common Pleas of Allegheny County prior to January 1, 1969 and after January 1, 1969 was the President Judge of the newly constituted Court of Common Pleas of Allegheny County until January, 1978. Defendant the Honorable Michael J. O'Malley is currently the President Judge of the Court of Common Pleas of Allegheny County. Defendant Charles H. Starrett is the Administrator of the Court of Common Pleas of Allegheny County.

Ms. Herd filed a charge of sex discrimination in employment with the Equal Employment Opportunities Commission and the Pennsylvania Human Relations Commission against the Court of Common Pleas of Allegheny County in 1973. She was issued a Right to Sue Letter on December 6, 1974. Within the required 90 day period, the plaintiff brought the action at No. 75-259 Civil.

 The plaintiff's complaint in Civil Action No. 75-259 sets forth two counts. The first count alleges that the defendants, acting under color of state law, have arbitrarily discriminated against the plaintiff in her employment on the basis of sex. The plaintiff thereby claims a violation of her rights secured by the Fourteenth Amendment to the Constitution, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. The Fourteenth Amendment guarantees every person equal protection and due process of law. Section 1983 provides relief from deprivation under state law, custom or usage of any rights, privileges or immunities secured by the Constitution and laws. Title VII prohibits an employer from discriminating against and classifying an employee on the basis of sex.

 The plaintiff's allegation is that because she is a woman she was denied promotion from her present classification of Court Reporter I to Court Reporter II together with the increased salary benefits, was restricted to reporting in the Family Division, and was required to take a reporter test in order to achieve the Court Reporter II classification.

 In the second count, the plaintiff avers that certain conduct of defendants Ellenbogen and Starrett constituted unlawful retaliation against the plaintiff in violation of Title VII of the Civil Rights Act of 1871, 42 U.S.C. § 2000e-3(a) the Fourteenth Amendment and Section 1983. Section 2000e-3(a) protects against employment discrimination resulting from participation in any proceeding to enforce the Equal Employment Opportunities Act, 42 U.S.C. § 2000e Et seq.

 By order of this Court entered November 17, 1977, the plaintiff was permitted to proceed on her Title VII causes of action against all defendants, and on the Section 1983 cause of action against all defendants except the Court of Common Pleas of Allegheny County. Plaintiff alleges retaliation under Section 2000e-3(a) only on the part of defendants Ellenbogen and Starrett.

 Subsequent to our denial of leave to file portions of a second amended complaint the plaintiff filed a separate action at No. 77-1049 Civil, which repeated the same factual allegations as were contained in the retaliation counts as a basis for another § 1983 cause of action. These were considered at trial and are dealt with herein.

 The jurisdiction of this Court is undisputed. 28 U.S.C. § 1331 confers original jurisdiction on this court in civil actions where the matter in controversy exceeds the sum of $ 10,000, exclusive of interests and costs, and arises under the Constitution and laws of the United States. Jurisdiction is also found pursuant to 28 U.S.C. § 1343(3) and (4) which provide for original jurisdiction of this Court in all suits to recover damages or secure equitable or other relief for deprivation of civil rights secured by the Constitution and any Act of Congress. 42 U.S.C. § 2000e-5(f) provides for suits in equity authorized and instituted pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq.

 The historical background of this case is as follows: In 1969 the various courts of Allegheny County, The Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace (hereinafter called the former Common Pleas Court) the County Court, Orphans Court and the Juvenile Court were consolidated pursuant to the new Judiciary Article of the Pennsylvania Constitution, Const. Sched. Art. 5, § 17 into the Court of Common Pleas of Allegheny County. The newly constituted Court of Common Pleas consists of a Trial Division, Orphans' Court Division, and a Family Court Division. The Family Court Division exercises jurisdiction in domestic relations, juvenile matters and adoptions and delayed birth certificates.

 Prior to the 1969 consolidation of the Allegheny County Courts, each court was independently administered and staffed, maintaining independent job requirements, titles and salary scales. Traditionally, court reporters in the Orphans Court were hired by the judges of that Court and permanently assigned to a particular judge. Court Reporters in the former Court of Common Pleas were rotated to different judges in a pool system and, beginning in 1951, were required to take a test for initial employment. The plaintiff was hired in 1963 by the then President Judge of the County Court as a County Court reporter after demonstrating her competence to record the type of proceedings heard here. She also served a six-month probationary period with the County Court.

 Because of the wide divergence in the administration of court personnel among the various pre-consolidation courts, in March 1969 the Board of Judges requested the Pennsylvania Economy League to study and make recommendations as to the "manpower needs, job descriptions and salary schedules and the administrative setup of the Court." The PEL study was heavily relied upon as a guide in classifying and paying court reporters and stenographers in the newly formed Court of Common Pleas. Court reporters who served in the Trial Division and Orphans' Court Division of the Court of Common Pleas immediately after the consolidation were the former court reporters of the former Common Pleas Court and the Orphans' Court. They were designated Court Reporters II and paid at the highest salary rate. Court reporters assigned to adult or non-juvenile matters in Family Court Division were the former County Court reporters. They received Court Reporter I status and were paid a lower salary. Plaintiff was one of four of these. Two of the former County Court reporters who had passed the Common Pleas court reporters' examination were classified and paid as Court Reporter II employees. Those Court reporters serving in the juvenile area of the Family Court Division were given the status of Hearing Stenographer and paid the lowest salary.

 The PEL study was approved by the Board of Judges but accepted only in part by the County Salary Board. Nevertheless, the above classification of court reporters in the newly consolidated Court of Common Pleas of Allegheny County was applied and still exists in the present court system.

 Upon consolidation, Ms. Herd was assigned to the non-juvenile area of the Family Court Division, classified Court Reporter I and paid the lower salary. The plaintiff claims she was discriminated against in being assigned to the adult Family Court Division, in being required to take a test to achieve the higher status, and in being paid a lower rate for the work performed by her as a reporter in the adult Family Court Division because she is a woman. As the Supreme Court stated in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978):

 
"The central focus of the inquiry in a case such as this is always whether the employer is treating "some people less favorably than others because of their race, color, religion, sex, or national origin.' " Furnco, supra, at p. 577, 98 S. Ct. at p. 2949 citing International Brotherhood of Teamsters ...

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