Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before: Hunter and Weis, Circuit Judges, and Dumbauld District Judge*fn*
In this Title VII case, the district court preliminarily enjoined the involuntary transfer of a female campus security officer to a less desirable shift. The court reasoned that the plaintiff had more seniority than a number of male officers and ruled that the employer's defense of a bona fide occupational qualification was irrelevant. We vacate the preliminary injunction, concluding that the plaintiff failed to show irreparable injury and that the BFOQ proffer was a proper defense.
The plaintiff filed a discrimination complaint with the EEOC against her employer, the University of Pennsylvania. She was issued a right-to-sue letter and then brought this suit seeking injunctive relief and damages. The district court granted a preliminary injunction and the defendant University has appealed.
After several rapes on campus in 1973, female students staged a "sit-in" protesting the lack of adequate security. Following negotiations, the University pledged that the next guard hired would be a woman. It also agreed to create and staff an official position designated as Female Security Specialist to promote and oversee the development of a rape victim service program.
Students again protested in 1976 because they were dissatisfied with the University's progress in fulfilling the promises made in 1973. The provost appointed a committee to assess the problem and offer solutions. In early 1977, the committee recommended measures that included assigning at least two women on each work shift of the campus police so they would be available to female students when needed or when a sexual assault occurred. One woman was to be a security officer and the other a detective. The progress in hiring and retaining female officers was also reviewed, and it was urged that, despite budget cutbacks, the number of persons on the security force be increased.
Later that year, on October 10, 1977, plaintiff Moteles began working as a security guard for the University. She was assigned to various shifts and by 1983 was working regularly on the day shift.
In 1982 two female security officers were transferred from the day shift (7:00 am -- 3:00 pm) to the evening (3:00 pm -- 11:00 pm) and night (11:00 pm -- 7:00 am) assignments so that each shift would have at least one woman officer. The women filed a grievance through Local 506, their collective bargaining agent. The union and the University settled the dispute. In what is called the "DuPlantis Settlement" they agreed that whenever the female-only position on a shift was vacant, the other women officers would be given the opportunity to bid on it. If no bids were received, the opening would be filled by a woman officer through inverse seniority.
In early 1983, the female officer assigned to the evening shift was promoted to sergeant, thus creating a need for a woman during that work period. When none of the officers bid on that position, plaintiff was transferred to that assignment effective March 14, 1983.
On February 15, 1983, before plaintiff was transferred, she filed a complaint with the EEOC alleging that the DuPlaintis Settlement Agreement constituted discrimination. The complaint was referred to the Pennsylvania Human Relations Commission. At the plaintiff's request, the state commission waived jurisdiction and returned the matter to the EEOC on March 16, 1983. On that same day, the plaintiff's counsel requested the Commission to issue a right-to-sue letter. The agency did so on the following day, and plaintiff immediately filed suit in the district court.
Plaintiff began working the evening hours on March 20, 1983. However, by the time of the preliminary injunction hearing in the district court on April 4, 1983, she had already successfully bid on an opening on the night shift. When plaintiff was transferred to the evening assignment, the University had forty-one security officers. Four were women, including one trainee who was to be commissioned on April 1, 1983. Of the force's six sergeants, two were women. In the detective division two of four persons were women.
At the time the transfers were made, the University had a collective bargaining agreement with Local 506, which represented all the security officers. Article XII, section 6 of the contract provided that seniority was to be used in "shift preference . . . provided the employee involved is reasonably capable of performing the work in question." At the time of her involuntary transfer, plaintiff had greater seniority than a number of the male security officers.
The district court ruled that it had jurisdiction to hear the case since the EEOC had issued plaintiff a right-to-sue letter and the agency's reasons for so doing were irrelevant. The court concluded that the University had violated the plaintiff's seniority rights and that the bona fide occupational qualification defense was "totally inapplicable to the facts as defendant presents them to be." A defense based on the contract language "reasonably capable of performing the work" was also found to be inapplicable.
As for the requisite irreparable injury, the court found that "her injury is of a peculiar nature so that compensation and money cannot atone for it. . . . [It] is substantial and irreparable. Plaintiff is suffering injuries caused by retaliation vistited upon her by University authorities while she is being asked to be the sole member of the University community to bear the brunt of the rule." The University was directed to immediately reassign plaintiff to ...