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October 20, 1987

Equal Employment Opportunity Commission, Plaintiff,
Altmeyer's Home Stores, Inc., Defendant

The opinion of the court was delivered by: ROSENBERG

 This action was brought by the Equal Employment Opportunity Commission ("EEOC") against the Altmeyer's Home Stores, Inc., a multiple retail store operator, charging it with lower pay to female employees below those paid to male employees in similar positions and failure to promote because of female sex. It was commenced in behalf of Terry Lee Plotner, manager, and Kathleen Marie Daley, assistant manager, of the defendant's store at Baden, Pennsylvania and females as a class.

 The plaintiffs charge the defendant with violation of Section 6 of the FLSA, 29 U.S.C. §§ 206, 206(d)(1) and 706(f)(1) of Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. 2000e et seq. (1978 ed.) by discriminating between managers and assistant managers, but not between sales personnel, on the basis of sex in the payment of wages and promotions. The defendant denies the charges and in its defense asserts that all employees, male and female, were and are treated equally and in accordance with a method or system by which it always hired and promoted its employees in all its stores irrespective of sex.

 This action was properly processed through and by the EEOC and this court has jurisdiction in the case.

 As of the time of the cause of this action, the defendant owned and operated from eight to ten specialty retail home softgoods department stores in Pennsylvania and West Virginia. It classifies its stores as either "A" or "B" stores depending upon the size of the store, the amount and kind of inventory handled, as well as the character of knowledge and skills required by the manager of the specific store in that area.

 At the time of the commencement of the charges, its main store, situated in New Kensington, Pennsylvania was considered an "A" store with another "A" store at Natrona Heights, Pennsylvania. Other stores at Baden, Uniontown, Butler, Morgantown, West Virginia, Vandergrift, Bridgeville and Southland were classified "B" stores. The Baden store, located in a small community, had a limited inventory of goods for sale requiring less knowledge and expertise on the part of the manager, assistant manager and other employees in the store. For instance, it was indicated that at the "A" stores draperies, for one thing, could be custom made for the convenience of customers. It required a manager with specific skills and knowledge to be able to provide custom-made draperies, and it needed persons acquainted with these skills to do so. The Baden store did not have such a service and did not need employees who had the skills which the managers of the "A" stores had.

 Prior to the initiation of this action, the manager of the Baden store, Terry Lee Plotner, had served the company at that store from May 9, 1980 to July 1, 1982. She claims that during her service as manager, she had increased the business of the store and had received praises from the company on several occasions. The defendant contradicted Plotner's statements and asserted that the store had become loosely managed; that food was eaten in the presence of customers; that the place was not neat or kept in orderly fashion; and that business began to decline.

 The defendant was contemplating and preparing the opening of a new large "A" store in Monroeville, Pennsylvania, an extensive business community with heavy traffic. Plotner asserted that she had ambitions to become promoted to the position of manager in the Monroeville store when it opened and that she had let a number of supervisory individuals know of her desire, but that she was not considered for that job because she was a woman.

 Thus, while there was a difference of thinking on the part of the plaintiff and the defendant, the real cause of differences between the defendant and Plotner came to a head when one morning the safe at the Baden store had been found unlocked and $ 800 missing. Plotner admits that the safe had been left unlocked and that it was a violation of the rule of the company which provided for the managerial assurance of security of the funds of the company. The police were called and Plotner submitted to a lie detector test. While defense counsel attempted to introduce evidence, not of results of the lie detector test, but of circumstances related to the test, I deemed it inappropriate that the results of the lie detector test or any evidence relating to the pretest interview, statements to the polygraph consultant, or observations by the polygraph consultant be admitted into evidence. Any evidence obtained through use of a lie detector test should be inadmissible, therefore, I disregard it.

 Plotner asserted that as a result the company was accusing her of "stealing" and she quit. She thereupon made application for unemployment compensation, but her claim was denied. She did not appeal. Other than her own statement that the defendant was accusing her of embezzlement, there is little, if any, evidence to prove such an accusation. I find as a fact, also that, lacking her burden of producing preponderant evidence that she was dismissed, that she was not dismissed.

 Plotner testified that she lived in Industry, Pennsylvania, a small town outside of Baden where she was employed; that she was married and had 2 children; that she and her husband owned their home in Industry; that she would not move from her home if the defendant were to have given her the manager job in the new store in Monroeville when it opened; that she had constantly reminded management officials that she was interested in obtaining the Monroeville job; that if given the Monroeville job, she would commute from Industry the 57 miles each way to and from work and that she would do this in approximately an hour in each direction; but that she was not considered for the job in Monroeville because she was a women.

 After she left, the defendant transferred Ron Hall from the Natrona Heights store to act as manager of the Baden store. He was there on a temporary basis, but his position was made permanent as manager on July 8, 1982.

 One of the defendant's defense theories is here an important factor in fact and law. It claims that it never differed between male and female employees or violated the discrimination Acts. It maintains that it was always concerned with promoting those who demonstrated skills and in rewarding those employees with higher paid positions such as assistant manager and manager of stores. For instance, it would take an assistant manager in an "A" store and fit him or her in as a manager in a "B" store where circumstances called for such a promotion or change. It would promote "B" store managers to "A" store assistant managers where fitting also. It promoted "A" store managers when and where fitting and desirable as a matter of business practice. Its concern was always with the fitting of the employee into the position calling for one with his or her capability, knowledge and skill, and that it favored and endeavored to fit the employee into the place where such qualifications were most suitable and efficient.

 This action was brought by the plaintiff and processed pursuant to Sections 16(c) and 17, 29 U.S.C. Sections 216(c) and 217 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C Section 201 et seq., referred to as the "FLSA," to enforce the equal pay requirements in Section 6(d) of the FLSA, 29 U.S.C. Section 206(d) and pursuant to Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. (1978 ed.) as it is referred to as Title VII.

 Both statutes form the basis for its reliance for a remedy for the claims which it makes in its complaint. Both statutes must be processable through the EEOC. That was properly done here.

 The equal pay statute was enacted by Congress after a long time abuse of women in the work place. It is in line with these other similar corrective statutes for the improvement of the common lot of discriminated against persons, as it takes its place with the various civil rights actions for the protection of those who are of a particular race, religion or creed, those who are of a certain age, and those females who now in the view of the American public are believed to be taking a place in commerce, industry and the professions as equally as can and do men. It is Congress' view that this can be done by means of statutory help because of the similarity in actions and procedure and because proof in all these cases are more or less basically comparable.

 The proof, the order of presentation, the burden and the defense in discriminating treatment cases are more or less alike. The processing in court has been set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination; second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection . . ."; and third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not true reasons but a pretext for discrimination. Id. at 802 . . . The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n.2, 58 L. Ed. 2d 216, 99 S. Ct. 295 (1978). It is the McDonnell Douglas ruling of intermediate evidentiary burdens which serve to bring the litigants and the court expeditiously and fairly to the ultimate question for judicial determination.

 Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent on the fact of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.

 The burden which shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason. The defendant need not pursuade the court that it was actually motivated by the pro-offered reason. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the individual's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant, thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.

 In this case, it is alleged that a commercial firm has mistreated women in paying them less compensation than men and in failing to promote them on an equal basis with men. It is incumbent, therefore, upon the plaintiff, the EEOC, to come forward and produce evidence which will bring it within the requirements of the statutes upon which they rely for a remedy. The burden is upon the plaintiff to produce sufficient evidence by a preponderance thereof to influence this court that the Act or Acts have been violated and that remedial action by this court is needed.

 Thus, the evidence in the case before me, as presented by the plaintiff, the EEOC, attempts to show that (1) a female store manager, Plotner, at the Baden store was discharged after being accused of embezzling funds from the defendant, her company employer; and (2) that she was rejected and refused a promotional position in a store being newly established and to be known as an "A" store in Monroeville, Pennsylvania. The second claim by the plaintiff is that the assistant manager at the Baden store was discharged without reason and the third claim was that other classified female employees since the time of the dismissal of Plotner and Daly have been discriminated against in the amount of pay given them and in promotions.

 As previously stated, the defendant denies all this and asserts that the method of selecting and hiring of employees is in accordance with the plan within the procedure and scheme upon which the company runs its business irrespective of sex. The defendant adds another contention when it asserts that each store is a separate retail establishment pursuant to the wording of the Equal Pay Act and that, therefore, the government may not base discrimination in payment of wages by comparing Plotner, Daly and others with employees of other stores, establishments. The defendant claims that there is no Title VII jurisdiction because it never employed more than 15 employees in the Baden store. This would give it a classification of "separate establishment" which under the Act would result in a lack of jurisdiction by this court.

 The plaintiff presented several employees of the defendant as some of its witnesses, in addition to the two claimants, an expert, and its own accountant. The defendant presented its top personnel official, several of its employees and an expert witness. These were the primary witnesses.

 As relating to Baden, Plotner asserted that she increased the volume of sales but he testimony of Ronald Hall for the defendant asserts that the sales had been diminishing and increased after a new manager succeeded Plotner. This evidence would indicate that both could be correct. Since no sales records were introduced into evidence by either the plaintiff or defendant for the pertinent times in question, there is no way for me to ascertain exactly what these sales were in those periods of time.

 As for the amount of business that was done at the Baden store, there is a variance from 332,141 in 1980 up to 452, 649 in 1983 and 416,022 in 1984 down to 392,137 in 1985. Thus, with what oral evidence was presented before me that the plaintiff Plotner increased or decreased the sales, I have actually no supporting evidence, and except for her own, that was not ...

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