The opinion of the court was delivered by: SHAPIRO
Plaintiffs are male professors at Temple University ("Temple") who allege that Temple and the American Association of University Professors ("AAUP") jointly and wilfully discriminated against plaintiffs on the basis of sex by paying them lower salaries than those paid to female professors of less or equal educational qualifications and/or experience. Plaintiffs charge defendants with violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d); the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1983, 1985 and 1986; the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.; and the Pennsylvania Equal Rights Amendment, Article I, § 28 of the Pennsylvania Constitution. Plaintiff Robert Lyon also claims a conspiracy among the defendants to inflict emotional distress upon him in violation of Pennsylvania law. Presently before the court is a motion by defendant AAUP to dismiss all counts of the complaint. For the reasons set forth herein the motion to dismiss is granted with respect to the Equal Pay Act claim and the claims under §§ 1985 and 1986 and denied without prejudice with respect to the § 1983 and pendent claims.
It is fundamental that in deciding a motion to dismiss, the well-pleaded allegations of the complaint are to be taken as true and the complaint is construed in the light most favorable to the plaintiff. The issue is not whether the plaintiffs will prevail on the merits but whether the plaintiffs are entitled to offer any evidence to support their claims. E. g., Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Bethel v. Jendoco Construction Corporation, 570 F.2d 1168 (3d Cir. 1978).
The complaint alleges that the 1973-1976 collective bargaining agreement between Temple and AAUP included a clause, Article III, Paragraph E, which provided for the redressment of existing wage inequities based on race or sex for faculty members at Temple. The alleged purpose of Article III, Paragraph E was "to identify and correct any existing faculty salary inequities based on sex or race" (P 19) and "(1) to develop a comprehensive system for determining any internal inequities affecting women or minority faculty members; (2) to guide and advise departmental faculties, chairpersons and deans on redressing any such inequities; and (3) to hear appeals from persons who are dissatisfied with redressment decisions of departmental faculties, chairpersons and deans." (P 18). Pursuant to this provision, the faculty of the various schools and colleges at Temple allegedly reviewed the salaries of females and minority faculty members and awarded increases to those found to be entitled to this type of redressment. Male faculty who were not members of a minority were not eligible for these salary increases under Article III, Paragraph E.
Plaintiffs claim the implementation of Article III, Paragraph E resulted in substantial discrepancies in salaries between plaintiffs and certain females in their departments; these women are alleged to be equally or less qualified or to have less experience than plaintiffs. For example, plaintiff Lyon alleges that he was hired at Temple in 1957 and has been a tenured professor since 1963 but as of September 1, 1978, he was earning approximately $ 3,200 less than a female in his department who was hired in 1967 and elevated to associate professor in 1971. Plaintiffs Lebofsky, Thornton and Macri have alleged similar discrepancies as to their salaries in comparison to females within their departments.
All four plaintiffs filed complaints of discrimination against Temple with the Department of Labor, and each received a letter that his complaint under the Equal Pay Act could not be substantiated because the salary comparisons involved a small number of females rather than the entire department. Plaintiffs Lebofsky, Thornton, and Macri also filed complaints with appropriate state and local agencies and grievances with the AAUP but were denied redress. Construing these facts as true, we now address the counts of the complaint seriatim.
The Equal Pay Amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the "Act"), proscribes discrimination on the basis of sex in the compensation of equal work (with certain enumerated exceptions). This prohibition extends to two distinct entities, employers and unions. Section 206(d)(1) is directed to employers:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except ....
Section 206(d)(2) applies to unions:
No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.
The latter provision makes it clear that unions are not immune from the mandates of the Act.
But the Act is also clear that aggrieved employees have a cause of action against their employer only. Under 29 U.S.C. § 216(b), only an employer is liable for violations of 29 U.S.C. §§ 206 and 207. Section 16(b) provides in pertinent part:
Labor organizations are not "employers" for purposes of the Act unless the labor organization itself is acting as an ...