ambiguous squiggle on a faded photocopy, lacking any sort of verification.
II. Equal Pay
Defendant argues that plaintiff has not stated an equal pay claim because she neglected to allege that she was paid less than men. Paragraph 11(d) of the complaint charges the defendant with "maintaining policies and practices with respect to, but not limited to wages, . . . which unlawfully operated to deny equal opportunity to women" and P 12 alleges that these practices affected the plaintiff. While it is true that plaintiff does not expressly refer to male wages, as Mr. Justice Powell reminds us, "With respect to gender there are only two possible classifications." University of California Regents v. Bakke, 438 U.S. 265, 303, 98 S. Ct. 2733, 2755, 57 L. Ed. 2d 750 (1978) (separate opinion). To be sure, an equal pay plaintiff need not always make the implied sexual comparison explicit. But simple gender discrimination will not make out an equal pay claim. The Act provides relief only when males and females are paid different wages for equal work.
See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974); Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977). In this regard the complaint does not refer even indirectly to wages paid to male workers in equivalent job classifications. The equal pay claim will therefore be dismissed for failure to state a claim.
III. Fourteenth Amendment
From the complaint it is uncertain whether plaintiff advances a cause of action directly under the Fourteenth Amendment or alleges denial of rights guaranteed by the Fourteenth Amendment through a cause of action created by the civil rights statutes. Defendant reads the complaint to assert a direct cause of action. However, plaintiff's brief seems to disavow a direct action: "The Fourteenth Amendment is the underpinning of the Civil Rights Acts (sic) of 1871 and accordingly, properly is invoked. Sections 1981 and 1983 effectuate the intent of the Fourteenth Amendment and it is certainly not improper to allege it." Plaintiff's Response Memorandum at 9.
If, despite this language, plaintiff actually intends to plead a direct action under the Fourteenth Amendment, the attempt must fail. This circuit has squarely held that the existence of an "effective and substantial" federal statutory remedy precludes implication of a constitutional remedy. Mahone v. Waddle, 564 F.2d 1018, 1024-25 (3d Cir. 1977), cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978). Plaintiff does not contend that her several statutory remedies are inadequate nor does she offer any other justification for implying a remedy "beyond the power of Congress to preclude." Kostka v. Hogg, 560 F.2d 37, 44 (1st Cir. 1977).
IV. Civil Rights Statutes
As noted above, supra note 2, plaintiff concedes that her § 1985(3) claim asserts deprivation of rights guaranteed by title VII and therefore does not survive Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). Similarly, plaintiff offers no argument in opposition to the overwhelming weight of authority holding that § 1981 does not reach sex discrimination. See Milner v. National School of Health Technology, 409 F. Supp. 1389, 1395 (E.D.Pa.1976) (citing cases); B. Schlei & P. Grossman, Employment Discrimination Law 610 (1976). Both the § 1985 claim and the § 1981 sex claim will be dismissed.
The parties do join issue over the presence of "state action" sufficient to support the § 1983 claim. Here, as with the title VII claim, it is not possible to reach the merits because plaintiff has failed to meet the initial burden of pleading that the defendant acted under color of state law. See 28 U.S.C. § 1343(3).
All that the complaint reveals about the defendant is that it is a corporation organized under the laws of the Commonwealth of Pennsylvania. Complaint P 5. This statement is obviously insufficient to invoke jurisdiction under § 1343(3) or to state a claim under § 1983. It follows that the § 1983 claim must be dismissed.
The Medical School asks that the entire complaint be dismissed for several reasons which may be classified as objections to inartful pleading.
First, the complaint is not separated into counts and, as the defendant points out, it is therefore difficult to match up plaintiff's different legal theories with the relevant facts. Second, plaintiff apparently concedes that she meant to sue the University of Pennsylvania. Finally, defendant objects that the complaint is so vague and general that it cannot form a responsive answer.
The Federal Rules do not require technical forms of pleading. F.R.Civ.P. 8(e). Rule 10(b) qualifies this general principle by providing that "Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth." It is possible that separation into counts would have clarified this complaint by causing the pleader to consider more carefully the differences among his multiple legal theories. Nevertheless, Rule 10(b) is addressed to separate factual claims rather than to separate legal grounds for relief and the lack of clarity in this complaint derives from its confusion of the latter. It would not substantially aid clear presentation to require the plaintiff to separately plead the different episodes in her employment history and therefore the motion for separation will be denied. See Plummer v. Chicago Journeyman Plumbers' Local 130, 452 F. Supp. 1127, 1144 (N.D.Ill.1978); 2A Moore's Federal Practice P 10.03 at 2006-07 (2d ed. 1979).
The defendant states in its motion that the Medical School has no independent legal existence and that therefore any judgment entered against it would be empty. Inasmuch as the University appears to be defending the action, the misnomer would seem to be primarily the plaintiff's concern. At this point in the proceedings, however, there is no evidence of record to establish the legal status of the Medical School one way or the other and the plaintiff's allegation that the defendant is a Pennsylvania corporation must be taken as true.
The defendant seeks finally to invoke the Third Circuit's civil rights pleading rule. This rule, which derives from Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967), requires that facts be pleaded specifically in civil rights complaints.
See, e.g., Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976) (per curiam); Krier v. Amodio, 441 F. Supp. 181, 183 (E.D.Pa.1977).
The complaint divides into two distinct sets of factual allegations. The first set is a fairly specific recounting of plaintiff's employment history. These allegations are more than sufficient to withstand a motion to dismiss. The second set, a broadside attack on the defendant's employment practices, is less defensible.
While it is difficult to allege systemic discrimination with as much particularity as an individual discriminatory act, plaintiff must nevertheless connect the challenged practices to herself. This is not a class action. Of the fourteen practices generally attacked by the plaintiff, five
relate to specific acts of discrimination against the plaintiff charged elsewhere in the complaint. The remaining nine
however, have no apparent relation to LeGare. We are left to wonder, for example, how the plaintiff was adversely affected by the defendant's hiring policy when, according to the complaint, she was hired twice and never rejected for a job. An adverse effect is not so directly negated for some of the other practices (i. e., wages), but it is still lacking. Notwithstanding a special civil rights pleading rule, F.R.Civ.P. 8(a)(2) requires that the complaint give the defendant fair notice of the plaintiff's claim. Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). With regard to the nine practices unrelated to the plaintiff,
the complaint falls below the fair notice standard of Rule 8(a)(2) and will accordingly be dismissed. The challenges to the other five practices
will be allowed to stand, insofar as they support and amplify the specific charges made elsewhere in the complaint.
VI. Attorney's Fees
The defendant moves for attorney's fees and costs on this motion under § 706(k) of title VII, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, claiming that the complaint filed by the plaintiff was frivolous. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); Hughes v. Repko, 578 F.2d 483, 489 (3d Cir. 1978). On a defendant's motion for fees, the same standard that the action is frivolous, unreasonable or groundless is applied under both statutes. See Lopez v. Aransas County School District, 570 F.2d 541, 545 (5th Cir. 1978); Milburn v. Girard, 455 F. Supp. 283, 285 (E.D.Pa.1978).
Assuming arguendo that the defendant is the prevailing party on this motion, its request is not unreasonable. The complaint is fairly riddled with elementary legal errors and contains a strong dose of obfuscation. Other courts have awarded defendants attorney's fees under similar circumstances, e.g., where "a plaintiff proceeds on a clearly frivolous legal basis, such as suing a private corporation under § 1983 without any contentions of state action, . . ." Goff v. Texas Instruments, Inc., 429 F. Supp. 973, 976 (N.D.Tex.1977). It is, however, too early at this stage of the litigation to make informed judgments as to whether the action is groundless and whether the legal faults of counsel can be imputed to the client. Certainly a civil rights plaintiff should not lightly be penalized for her lawyer's pleading errors.
The defendant's motion for costs and fees will be denied.
Plaintiff is granted leave to amend the complaint within twenty (20) days of entry of the order.