The opinion of the court was delivered by: NEALON
Plaintiff, Carolyn Mazus, alleging discrimination in employment on the basis of her sex, seeks compensatory and punitive damages, as well as injunctive relief
from the Commonwealth of Pennsylvania and Leonard D. Coddington, Superintendent of the Milford Office of the Pennsylvania Department of Transportation, and other Commonwealth officials, including the Governor, his Personnel Director, and the Secretary of Transportation.
A nonjury trial was held November 7, 8, 1977, and May 11, 1978, and after submission of Requests for Findings of Fact and appropriate briefs, the matter is now ripe for disposition.
1. Carolyn Mazus is a female resident of Lords Valley, Hawley, Pennsylvania, a community located in Pike County.
3. The Governor of Pennsylvania, Personnel Secretary to the Governor, and Secretary of PennDOT, are the State Officials alternately responsible for setting and implementing employment policies within PennDOT.
4. Leonard Coddington is the Superintendent of Maintenance for PennDOT operations in Pike County.
5. Ernest Gastmeyer was the Democratic County Chairman in Pike County.
6. In 1974 and prior thereto, the hiring of non-Civil Service employees, including highway maintenance workers for PennDOT county organizations, was considered political patronage and was not controlled by PennDOT. The first step, after learning of a vacancy from the County Superintendent, was for the PennDOT Personnel Office in Harrisburg to advise the Governor's personnel representative of the vacancy. The Governor's personnel representative would then notify the County Chairman of the Governor's political party and forward a job application to him. The application would be delivered by the Chairman and/or his political associates to the chosen applicant or transmitted to the Milford Office for delivery and execution by the applicant, and only one application was given out for each vacancy. The patronage process was well known in Pike County and most applicants resorted to political connections in seeking employment. The County Superintendent would forward the executed application and other necessary paperwork to the PennDOT personnel bureau in Harrisburg, which had the authority to cancel the appointment made by the County Superintendent if the employee was deemed unsuitable for the job. The County Chairman would attempt to apportion job openings in the eleven townships and two boroughs in Pike County where the work would actually be performed and where it would be to political advantage.
7. Mr. Coddington, as Superintendent for Pike County, did not have any control over blank job application forms, which in Pike County were under the complete control of the County Chairman and his political subordinates. Further, he had no authority to put anyone on the payroll without a completed job application form. The County Chairman's approval was necessary before he could hire anyone for a field position within PennDOT. There were no blank job application forms available at PennDOT's District Office in Dunmore.
8. Information concerning vacancies for highway maintenance workers is also disseminated through the community by word of mouth by existing employees of PennDOT. The positions were not advertised.
9. From 1971 until the present, PennDOT had been operating under severe budgetary limitations. Therefore, when a person left his employment with PennDOT, that position was abolished and there existed no vacancy. A position could only be filled after the vacancy had been authorized and approved by the Governor's office. This brought PennDOT's employment from 22,000 in 1971 to 17,000 in November of 1977. Because of this freeze, very few people were hired as Highway Maintenance Workers in Pike County since 1971, although many were interested in these positions.
10. In July 1974, Jacob Kassab, Secretary of PennDOT, talked to Mr. Gastmeyer and told him that some highway maintenance workers could be hired "in the fall of that year." Because there were very few openings since 1971, and there was a surplus of applicants, Mr. Gastmeyer had decided either who would receive them, or what political leader could submit an applicant, or in what area in the County the employee would be placed.
11. In October 1974, plaintiff's husband, Daniel, a PennDOT highway employee, received with his paycheck a flyer styled "Benefit of the Month," which promoted affirmative action by encouraging employees to suggest to minority and female acquaintances the idea of applying for PennDOT employment at the Department's county and district offices.
13. On November 19, 1974, Mrs. Mazus went to the PennDOT district office at Dunmore, Pennsylvania and requested an application form for highway work. Her request was routed to the District Labor Relations Officer, Bert Davis, who attempted to dissuade her from seeking that type of employment. Both Mr. Davis and Mr. Reginald Knight, an Equal Opportunity Development Specialist with PennDOT at the Dunmore Office, informed Mrs. Mazus that there were not any job applications for non-Civil Service jobs at the District office and that she would have to obtain this application from the County Chairman. Individuals seeking non-Civil Service employment with PennDOT rarely seek job applications at the District Office.
14. On November 20, plaintiff telephoned Gastmeyer, who stated that at that time there were no openings for road workers in Pike County. Gastmeyer had previously been informed of approximately 8 job openings by Secretary Kassab but all had been committed to the various townships by October 1974. He had told Coddington this when Coddington called for an application for plaintiff. Mrs. Mazus asked that she be permitted to place an application on file should openings develop. Gastmeyer told her to be at his home at 5:00 P.M. that day. Mr. and Mrs. Mazus drove to Matamoras, where Gastmeyer lived, telephoning him en route for directions. Plaintiff arrived at Gastmeyer's home at the appointed time, but no one was home.
15. Following her unsuccessful trip to Matamoras, plaintiff and her husband immediately drove to the PennDOT Pike County office at Milford, where she spoke to Mr. Coddington by telephone, describing the trip to Gastmeyer's home and apprised him that she was interested in a highway maintenance and not a clerical position. At that time Coddington told Mrs. Mazus that he anticipated approximately six openings for highway maintenance workers in Pike County. Gastmeyer had previously informed him that these openings had been committed to others. He also knew that there were more applicants than there were jobs and that Gastmeyer had to decide who would get them.
16. On Thursday, November 21, plaintiff returned to PennDOT's district office at Dunmore, where she again met with Knight and Davis in a conference room. Knight, after listening to her difficulties in obtaining the application, suggested that she try to find work with a private contractor. Knight added that he would not want his wife to do that type of work. Davis spoke of women who had been road workers for PennDOT, found the job too difficult, and quit. He also mentioned a woman who had attended an engineering class with him who expected her surveying equipment to be carried for her by male students. At the conclusion of the meeting Davis advised that she should obtain the application from Mr. Gastmeyer, although he also called Mr. Coddington and told him that he could not refuse her an application form.
17. Mr. Coddington, in an effort to obtain a job application form for Mrs. Mazus, went to the County Chairman, Mr. Gastmeyer, on at least three different occasions. However, as previously noted, Mr. Gastmeyer instructed Mr. Coddington that if Mrs. Mazus wished to have an application for a Highway Maintenance Worker's position, she should come to pick it up personally from him. He also told Coddington that all available positions had been spoken for.
18. Toward the end of November 1974, Coddington met with a shop committee to discuss pending grievances filed by the local union. The meeting was attended by three local officers: Daniel Mazus, Calvin Rose, and Herbert Lehman, each of whom testified that at the conclusion of the meeting Mr. Mazus asked Coddington about the application form for his wife. Coddington told Mr. Mazus that he should try to interest her in a clerical job, that he would thereby show "what kind of man he was." Coddington also stated to the group that he would not want to see his own wife in a job requiring her to work in the field with men and without proper sanitary facilities.
20. On November 25, 1974, John Chichilla, PennDOT Administrative Officer in the Dunmore District Office, received a call from Miriam Marsh of the PennDOT office in Harrisburg who apprised him of plaintiff's efforts to obtain an application. Mr. Chichilla called Mr. Gene Zenyuh
and asked him to forward an application to plaintiff. He also called Coddington and asked him to attempt to obtain an application for her. It wasn't until April 1, 1975, when he learned that plaintiff never received an application.
21. When the application form did not arrive, plaintiff filed a charge of discrimination and supporting affidavit with the EEOC on November 29, 1974, alleging that the Commonwealth, PennDOT, and Coddington had discriminated against her by refusing to employ her on the basis of her sex. Following the filing of that charge, plaintiff continued to call Coddington during 1974 and 1975 to inquire about job opportunities. She also wrote to state and federal officials for assistance in obtaining PennDOT employment or at least an application form. She never attempted to contact Gastmeyer again.
22. PennDOT concedes plaintiff's qualifications for a highway maintenance position which required, inter alia, (a) the ability to use simple tools in repairing potholes and minor defects in and around the state roads and (b) sufficient physical strength and freedom from disabling ...