Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 20 EPD ¶30,082, International Brotherhood of Electrical Workers, Local 1805, AFL-CIO, Plaintiffs v. Westinghouse Electric Corporation, Defendant., (June 15, 1979), (Jun. 15, 1979)

International Brotherhood of Electrical Workers, Local 1805, AFL-CIO, Plaintiffs v. Westinghouse Electric Corporation, Defendant.

United States District Court, District of Maryland.Civil Action No. N-76-543, June 15, 1979

Title VII--Civil Rights Act of 1964

Union--Class Representative--Employer’s Maternity Policy--Union’s Role in Negotiations.

--Where a union had played a role in negotiating a bargaining agreement which was alleged to contain maternity policy provisions which illegally discriminated against women, the union could not challenge those allegedly discriminatory practices. It was possible that the union could be held liable in whole or in part for the challenged practices and such a situation would create an obvious conflict of interest between the union and the women it sought to represent. The union was to be realigned as a third party defendant.

Back reference.-- ¶2302.30 .

Timeliness--Maternity Leave as Voluntary Quit--Continuing Violation--Loss of Seniority and Pension Credits.

--Neither the loss of seniority nor the loss of pension credits which occurred under an employer’s policy when female employees on maternity leave were not rehired within five months after the termination of their pregnancies constituted a continuing violation to which the statute of limitations did not apply. Thus, a challenge to the employer’s maternity leave policy was barred as untimely. The only actions that could be considered Title VII violations for purposes of starting the running of the statute of limitations were the “voluntary quits” which were forced upon female workers seeking to go on maternity leave.

Back references.-- ¶600.21 , 2112.15 .

Prerequisites to Suit--Charge with EEOC--Union Filing--Union Members.

--A union’s filing of charges with the EEOC to challenge an employer’s policy of permitting only women who had been employed at least nine months to take maternity leaves, while requiring no such waiting period for other leaves of absence, was to serve as the requisite charge filing for a proposed class should a proper class representative be found where the union was found to be an inadequate class representative due to a conflict of interest, and it was deemed to be unfairly prejudicial to female union members who might have relied on the union to represent their interests and refrained from filing their own timely actions.

Back references.-- ¶2112 , 2302 .

Relief--Injunctive--Exhaustion of Earned Vacation--Damages.

--A request for injunctive relief with respect to an employer’s policy which required pregnant employees to exhaust their vacations before commencing maternity leave was moot since the policy had been abolished. However, an individual’s timely claim for damages as a result of the previous policy was not to be dismissed. Forcing a worker to involuntarily take a vacation at an unwanted time is a substantial burden.

Back reference.-- ¶600 .

Carl S. Yaller (Edelman & Rubenstein), Baltimore, Maryland, for Plaintiffs.

Bruce S. Harrison and Eric Hemmendinger (Shawe & Rosenthal), Baltimore, Maryland, for Defendant.

Northrop, Ch.J.: This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., alleging discrimination on the basis of sex. The defendant, Westinghouse Electric Corporation (Westinghouse) operates a production plant for its Aerospace Division near Baltimore-Washington International Airport in Linthicum, Maryland. There are three named plaintiffs: the local union that serves as bargaining agent for employees at the plant, International Brotherhood of Electrical Workers, Local 1805, AFL-CIO, (the Union), and two female employees--Anna Boffen and Jeanne Johnson. The Union purports to represent all of defendant’s female employees in this action. Boffen and Johnson have individual claims and purport to represent all similarly situated female employees.

This case was filed on April 9, 1976, but was delayed several times for procedural problems and to await decisions from the Supreme Court. On May 22, 1978, defendant filed a motion to dismiss. That motion was argued before the Court on October 13, 1978. Following oral argument, the parties indicated a desire to resume settlement negotiations. Those negotiations were ultimately unsuccessful, and the Court is now issuing its opinion on defendant’s motion.

Background

The plaintiffs’ allegations of discrimination fall into three categories. The first concerns Westinghouse’s policy of classifying pregnancy and maternity leave as a “voluntary quit” or resignation. That policy was in effect until March 1, 1970. It resulted in the loss of various seniority and pension credits for women who were forced to take “voluntary quits” when they became pregnant. Plaintiff Boffen alleges that she lost over nine years’ seniority and pension credits when she took a pregnancy leave on October 24, 1969. She informed Westinghouse that she wished to return to work on June 15, 1970, but no job was then available. Boffen was finally rehired on September 22, 1971, losing all of her previous seniority and pension credits because her pregnancy leave was classified as a “voluntary quit.”

The second category of alleged discrimination concerns the restrictions that currently apply or previously applied to pregnancy leaves. Plaintiffs allege that these restrictions were not applied to other leaves of absence. Westinghouse until recently required that a female employee exhaust all of her unused annual vacation time before using any of her maternity leave. In addition, the collective bargaining agreement between the plaintiff Union and Westinghouse formerly provided that women could not take any pregnancy leave unless they had been working for the company for at least nine continuous months.

Plaintiff Johnson took a pregnancy leave beginning January 7, 1975. She claims that she was forced to use up approximately two weeks’ vacation time before using any of her maternity leave. Neither Boffen nor Johnson claims any injury from the ninemonth waiting period policy.

The third category of claims involves the treatment of pregnancy-related medical care under Westinghouse’s health insurance plan. The plaintiffs now concede, however, that the Supreme Court’s decision in General Electric Co. v. Gilbert, [12 EPD ¶11,240 ] 429 U.S. 125 (1976), requires dismissal of these claims. In Gilbert, the Court held that Title VII does not require employers to include pregnancy-related medical expenses in their health insurance plans. [1]

The procedural history of this case begins on April 9, 1973, when the plaintiff Union, “on behalf of Anna Boffen and all other women similarly situated” filed a charge alleging sex discrimination with the Equal Employment Opportunity Commission (EEOC). This charge related only to loss of pension credits due to the “voluntary quit” status of pregnancy leaves. On January 22, 1975, the Union alone filed a supplemental charge with the EEOC alleging discrimination in health insurance benefits and in “attaching conditions to the granting of maternity leaves of absence which are not attached to the granting of other leaves.” The EEOC initially referred the case to the Maryland Commission on Human Relations (MCHR), then reasserted jurisdiction. The EEOC issued a right-to-sue notice on January 21, 1976, and this suit was timely filed on April 9, 1976.

The Union’s Status

The defendant’s initial contention is that the Union is not properly a plaintiff in this action. Westinghouse asserts that the Union participated in the collective bargaining agreements that created some of the alleged discriminatory practices, and thus the Union cannot be a proper representative of the aggrieved women. Indeed, Westinghouse has filed a counterclaim against the Union asking for indemnification or contribution. Although a motion to certify a class is not before the Court at this time, the suitability of the Union as a class representative has been argued by the parties and should be settled as early as possible in the litigation to avoid conflicts of interest. The issue is ripe for decision at this stage.

The Union argues that it has acted in good faith to remedy past sex discrimination, thereby absolving it of any liability either to the female employees or to the company. However, the Union’s prior good faith, and thus its ultimate liability, is a question of fact. Compare Johnson v. Ryder Truck Lines, Inc., [13 EPD ¶11,607] 555 F.2d 1181 (4th Cir. 1977), and Robinson v. Lorillard Corp., [3 EPD ¶8267 ] 444 F.2d 791, 799 (4th Cir.), cert. dismissed, 404 U.S. 1006 (1971), with Patterson v. American Tobacco Co., [11 EPD ¶10,728 ] 535 F.2d 257, 270 (4th Cir.), cert. denied, [13 EPD ¶11,282] 429 U.S. 920 (1976). See generally Burwell v. Eastern Air Lines, Inc., [18 EPD ¶8759 ] 458 F.Supp. 474, 502-03 (E.D.Va. 1978). On the record before this Court, the Union’s liability cannot be determined. Given the conflicting allegations in the pleadings and memoranda, it is unlikely that the Union’s liability could be determined prior to a trial on the merits.

If the Union is ultimately found to be liable in whole or in part, it would create an obvious conflict of interest between the Union and the class it seeks to represent. Rule 23(a)(4) of the Federal Rules of Civil Procedure requires that class representatives be able to “fairly and adequately protect the interests of the class.” The Union is hardly in a position to protect the class when it may ultimately be held liable to the class and thus have interests directly in conflict with those of the class.

There would be no conflict of interest for claims concerning prospective or injunctive relief, but, for reasons discussed later in this opinion, all such claims will be dismissed. The only remaining claims concern two past practices of Westinghouse. Since the Union cannot serve as a class representative, it has no function as a plaintiff. Therefore, the Union will be realigned as a third-party defendant with liability contingent on Westinghouse’s counterclaim. Obviously, the individual plaintiffs will hereafter have to be represented by separate counsel.

“Voluntary Quit” Claims

Plaintiffs initially contended that the defendant’s treatment of pregnancy leave as a “voluntary quit” entitled plaintiff Boffen and other women similarly situated to back pay, equitable seniority adjustments, and reinstatement of pension credits. However, Boffen was forced to take the “voluntary quit” in October 1969, she was rehired in September 1971, and it was not until April 1973 that the first charge of sex discrimination was filed with the EEOC. Title VII requires that charges must be filed with the EEOC within 180 days after the alleged discriminatory act. 42 U.S.C. §2000e-5(e) .

Plaintiffs originally alleged that the Title VII violation was a continuing violation since it has a continuing effect on Boffen’s seniority privileges and pay. Since the filing of this case, however, the Supreme Court handed down its decision in United Air Lines, Inc. v. Evans, [14 EPD ¶7577 ] 431 U.S. 553 (1977). In Evans, a stewardess sued United because the airline had a policy requiring all flight attendants to be unmarried. Evans was forced to resign when she married. United subsequently changed its policy and rehired Evans, but refused to credit her with her prior seniority. Evans did not file a Title VII complaint until four years after her dismissal and one year after her reinstatement. The Supreme Court held that Evans’ action was barred by her failure to file a timely complaint. The Court refused to accept Evans’ continuing violation theory:

United’s seniority system does indeed have a continuing impact on [Evans’] pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether anypresent violation exists.

Id. at 558 (emphasis in original).

The Evans case is virtually indistinguishable from one with respect to the “voluntary quit” claims. Boffen concedes that most of her claims must be dismissed in light of Evans, but she claims that two of the claims are still valid. She contends that (1) although her own relief is barred, there may be a class of women whose back pay and seniority claims are not timebarred, and (2) that all of her claims, both individual and class-based, are still valid with respect to the loss of pension credits.

Seniority and Back Pay

The practice of designating pregnancy and maternity leaves as “voluntary quits” was ended on March 1, 1970. Thus any claims of discrimination based on a forced “voluntary quit” normally should have been filed within 90 days after that date. [2] Plaintiffs contend, however, that Westinghouse committed a separate Title VII violation by rehiring women who were forced to “voluntarily quit” without crediting them with past seniority. Plaintiffs assert that there may be women who were rehired after October 11, 1972 (180 days prior to the filing of the first EEOC charge) and that these women would have a timely claim. The question plaintiffs present is whether the 90- or 180-day period starts with the women’s discharge or with their reinstatement.

The Supreme Court in Evans did not have to reach this problem because the complaint in that case was untimely under either test. Evans, supra at 557 n.9. However, the Court did note that

[a]t the time she was rehired in 1972, [Evans] had no greater right to a job than any other applicant for employment with United. Since she was in fact treated like any other applicant when she was rehired, the employer did not violate Title VII in 1972. And if the employer did not violate Title VII in 1972 by refusing to credit respondent with back seniority, its continued adherence to that policy cannot be illegal.

Id. at 559 n.13 (emphasis added). This language clearly rules out any claim that Westinghouse’s rehiring of any women could be a separate Title VII violation. See McMonigle v. Delta Air Lines, Inc., [14 EPD ¶7781 ] 556 F.2d 1261 (5th Cir. 1977).

The only acts that can be considered Title VII violations for purposes of starting the 90- or 180-day clock were the forced resignations or “voluntary quits.” Since the last such resignation could not have taken place later than March 1, 1970 and charges were not filed with the EEOC until April 9, 1973, there can be no women with a valid claim for back pay or seniority credit. These claims will be dismissed as to Boffen individually, and as to the purported class.

Pension Credits

The alleged discrimination as to pension credits arises by virtue of the treatment of pregnancy leave under Westinghouse’s pension plan. That plan provided, and apparently still provides, that women who take a “voluntary separation” for pregnancy leave lose all accumulated seniority unless they are reemployed within five months after termination of pregnancy.

Plaintiff Boffen, as described above, was forced to take a “voluntary quit” for pregnancy on October 24, 1969. She notified Westinghouse that she would be available to resume work in June 1970, but due to the lack of available jobs, was not rehired until September 1971. This was, of course, well after the five-month period. Boffen thus lost nine years of accrued pension credits.

Plaintiffs contend that the pension claims should be treated differently from the seniority and back pay claims because (1) the pension discrimination, even after the Evans case, is a continuing violation, and (2) the statute of limitations on pension actions does not run until benefits become payable.

The continuing violation theory is apparently based on the fact that the pension plan still purports to punish women who are not reemployed within five months after pregnancy termination. However, the pension plan only imposes this time limit on “voluntary separation[s].” Since March 1, 1970, Westinghouse has not defined pregnancy leave as a “voluntary separation.” Plaintiffs even acknowledged that there is no continuing violation in their EEOC charge of April 9, 1973. After describing Boffen’s plight, they state:

The current collective bargaining agreement between the parties ... has eliminated this pension problem as to employees taking maternity leave subsequent to March 1, 1970, by preventing the Company from defining maternity leave as a voluntary quit. This complaint is filed because women who had to leave work because of pregnancy prior to March 1, 1970 are presently being deprived of valuable pension rights and will continue to be deprived of such benefits in the future because of the past discriminatory practice of the Company.

Defendant’s Motion to Dismiss, Exhibit D, filed May 22, 1978. The alleged pension discrimination is clearly not a continuing violation.

The other theory that plaintiffs advance to distinguish pensions from back pay and seniority is that the statute of limitations on a pension claim does not begin to run until the employee becomes eligible for immediate payments. This may be true in some circumstances. See Davis v. Alabama Power Co., 383 F.Supp. 880, 893 (N.D.Ala. 1974) (applying Alabama’s statute of limitations), aff’d per curiam, 542 F.2d 650 (5th Cir. 1976), aff’d on other grounds, 431 U.S. 581, 583 n.5 (1977). However, this Court agrees with the court in Freude v. Bell Telephone Co., 438 F.Supp. 1059 (E.D.Pa. 1977), which held that pension claims are subject to the same Title VII limitations as seniority claims. The Freude court relied on the unequivocal language in Evans interpreting the Title VII limitations period:

[I]t is plain that the basic holding of Evans is that a current nondiscriminatory policy will not revive a time-barred act of discrimination even though such policy gives present effect to the past act of discrimination.

Id. at 1061.

This Court cannot meaningfully distinguish between seniority credits and pension credits for purposes of Title VII. Plaintiffs contend that they should not be precluded from suit until the pension plan actually results in benefits to the employee. Although the benefits from increased seniority can be enjoyed during the course of employment rather than at termination, both credits result in future, not present benefits. Seniority credits result in new benefits every time the employer makes a decision that improves the position of one employee over another, whether it be with respect to salary, promotion, work assignment, or any other aspect of employment. The plaintiffs’ argument that a cause of action does not arise until benefits are conferred, if applied to seniority, would allow a new Title VII claim whenever the employer takes any action that directly benefits employees with more seniority. This is precisely the argument that the Supreme Court rejected in Evans. This result can be harsh, but it is mandated by the time limits set in the Act itself and the reasoning of the Supreme Court in Evans.

Since the pension discrimination cannot be considered a continuing violation, these claims must be dismissed as untimely for the same reasons assigned as to the seniority and back pay claims discussed herein.

Nine-Months’ Continuous Service Requirement

From June 17, 1973 until August 2, 1976, the collective bargaining agreement between Westinghouse and the Union provided that only employees with more than ninemonths’ continuous employment would be eligible for maternity leaves. Plaintiffs allege that other leaves of absence did not require such a waiting period. Westinghouse has moved to dismiss these claims on three grounds: (1) the issue is moot since the ninemonth service requirement is no longer in effect; (2) the claim was not included in plaintiffs’ complaint filed with EEOC; and (3) none of the individual plaintiffs alleges that she was injured by the policy. Except for these claimed procedural defects, Westinghouse does not challenge the merits of this claim.

The nine-months’ service requirement claims are moot to the extent that no injunctive or declaratory relief is necessary. This provision was abolished in the 1976 collective bargaining agreement. It is possible, however, that there may be women who did suffer injury while the policy was in effect. These claims for monetary relief cannot be dismissed as moot.

At least one of the EEOC charges belies Westinghouse’s contention that the service requirement claims were not before that agency. The second complaint, dated January 22, 1975, specifically charges that Westinghouse violated Title VII “by attaching conditions to the granting of maternity leaves of absence which are not attached to the granting of other leaves.” Defendant’s Motion to Dismiss, Exhibit D, filed May 22, 1978.

Obviously, the April 1973 complaint filed with EEOC could not have encompassed the service requirement claims because this policy did not go into effect until June 1973. [3] The April 1973 complaint dealt only with the problem of pension credits. The question for the Court is whether the EEOC could reasonably have been expected to investigate the nine-month service requirement policy. See, e.g., King v. Seaboard Coast Line R.R., [11 EPD ¶10,877 ] 538 F.2d 581, 583 (4th Cir. 1976); Hubbard v. Rubbermaid, Inc., [14 EPD ¶7796 ] 436 F.Supp. 1184, 1188-89

(D.Md. 1977).

In light of all the facts of this case, the Court finds that the nine-month service requirement would have been included in a reasonable EEOC investigation of the pension credits complaint. Both complaints involve more than simple sex discrimination; more specifically, they concern discrimination based on pregnancy. The Fourth Circuit has repeatedly approved extremely broad EEOC investigations. See EEOC v. C & O Ry., 577 F.2d 229 (4th Cir. 1978); EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976). While this Court certainly does not assume that every reasonable EEOC investigation will be as broad as those in C & O and General Electric, it will also not assume that an EEOC investigation would be limited to only one facet of pregnancy-related discrimination. See, e.g., Abron v. Black & Decker Mfg. Co., 16 FEP Cases 1730 (D.Md. 1975); Scott v. University of Delaware, [9 EPD ¶10,014 ] 385 F.Supp. 937, 942-43 (D.Del. 1974).

The plaintiffs concede that there is no named plaintiff who was injured by the nine-month service requirement. It is also clear from the discussion of the Union’s status, supra, that the Union cannot serve as a class representative on any such claims because the Union may be liable for all or part of any damages awarded.

In any class action, there must be a named representative plaintiff who has suffered the injury alleged to have been suffered by the class. See, e.g., East Texas Motor Freight System, Inc. v. Rodriguez, [14 EPD ¶7578 ] 431 U.S. 395, 403 (1977); Doctor v. Seaboard Coast Line R.R., [12 EPD ¶11,037 ] 540 F.2d 699, 711 (4th Cir. 1976); Hubbard v. Rubbermaid, Inc., [18 EPD ¶8720 ] 78 F.R.D. 631, 642 (D.Md. 1978). Rule 23(a)(3) requires that the class representative have claims which are “typical of the claims or defenses of the class.” Put more simply, an individual class representative must be a member of the class. See East Texas Motor Freight System, Inc., supra; Weinberger v. Retail Credit Co., 498 F.2d 552, 556 (4th Cir. 1974); Linder v. Litton Systems, Inc., 81 F.R.D. 14, 20 (D.Md. 1978).

Since neither of the individual plaintiffs suffered the requisite injury and the Union is ineligible to serve as a class representative, the Court finds itself like a modern day Ichabod Crane, [4] faced with a headless lawsuit--a class action in search of a representative plaintiff. Fortunately, this Court enjoys an advantage over Mr. Crane and the other residents of the legendary Sleepy Hollow. It has the guidance of the Fourth Circuit Court of Appeals.

In Cox v. Babcock & Wilcox Co., [5 EPD ¶8093 ] 471 F.2d 13, 16 (4th Cir. 1972), and again in Goodman v. Schlesinger, [18 EPD ¶8659 ] 584 F.2d 1325 (4th Cir. 1978), the Fourth Circuit directed district courts faced with similar problems to retain the cases on their dockets for a reasonable time to permit joinder of a qualifying plaintiff. Since this case is still at the motion to dismiss stage and there is another claim in the case which can go forward, the Court will hold open the nine-months’ continuous service requirement claims, at least until the Court can act on a motion to certify a class. During the interim, plaintiffs will have the opportunity to conduct class certification discovery and determine whether there are any women who were actually injured by this policy and who can qualify as class representatives.

The defendant suggested during oral argument that any women who might now come forward as class representatives would be barred because they had not filed a timely EEOC complaint. As noted above, however, the Union did file a timely complaint alleging such discrimination.

A Union is qualified, as a general rule, to represent its members as a class representative in Title VII cases. See, e.g., International Woodworkers of America v. Georgia-Pacific Corp., 568 F.2d 64, 66-67 (8th Cir. 1977); Thompson v. Board of Education, 71 F.R.D. 398, 403 (W.D.Mich. 1976). It is now clearly established that if a class representative files a timely EEOC complaint, that filing will be sufficient for the whole class for purposes of the exhaustion requirement in 42 U.S.C. §2000e-5 . See, e.g., Bastiste v. Furnco Construction Corp., [8 EPD ¶9683 ] 503 F.2d 447 (7th Cir. 1974), cert. denied, [9 EPD ¶9946] 420 U.S. 928 (1975); Local 179, United Textile Workers v. Federal Paper Stock Co., [4 EPD ¶7876 ] 461 F.2d 849, 851 (8th Cir. 1972); Bowe v. Colgate-Palmolive Co., [2 EPD ¶10,090 ] 416 F.2d 711 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., [1 EPD ¶9894 ] 398 F.2d 496 (5th Cir. 1968); Schoeppner v. General Telephone Co., 417 F.Supp. 453 (W.D.Pa. 1976); Lynch v. Sperry Rand Corp., [7 EPD ¶9044 ] 62 F.R.D. 78, 89 (S.D.N.Y. 1973). The purposes of requiring a timely EEOC complaint are to promptly notify the defendant of the charges and to allow conciliation efforts to take place before suit is filed. See Chastang v. Flynn & Emrich Co., [7 EPD ¶9106 ] 365 F.Supp. 957, 962 (D.Md. 1973), aff’d in part, [12 EPD ¶11,003 ] 541 F.2d 1040 (4th Cir. 1976). These policies were clearly met in this case.

The Court will allow the Union’s filing to serve as a class filing, even though it now appears that the Union cannot serve as a class representative. To hold otherwise would unfairly prejudice women who may have relied on the Union to represent their interests and refrained from initiating their own timely actions. If any women are found to represent this class, the Court will consider the Union’s filing to be sufficient for exhaustion purposes.

Vacation Exhaustion Policy

Until very recently, Westinghouse required women who applied for pregnancy leave to first exhaust their unused annual vacation leave. This vacation exhaustion policy, according to plaintiffs, did not apply to any other type of leave of absence. Plaintiffs had originally asked for injunctive relief to abolish the vacation exhaustion policy, but counsel have informed the Court that the policy was abolished, effective March 20, 1979. [5] The request for injunctive relief is thus moot. However, there is still a claim for damages as a result of this policy. Plaintiff Johnson claims that she was forced to exhaust her annual two weeks’ vacation during January of 1975 because of this policy.

Westinghouse initially contends that the vacation exhaustion policy was not presented to the EEOC. For the reasons stated in the discussion of the nine-months’ service requirement policy, supra, the Court finds that the vacation exhaustion policy was covered by the Union’s EEOC complaints. Johnson’s individual claim is clearly timely. She was forced to take her vacation leave on January 7, 1975, only a few weeks before the second EEOC complaint on January 22, 1975.

Westinghouse also contends that the vacation exhaustion policy does not violate Title VII under the reasoning of the Supreme Court in General Electric Co. v. Gilbert, [12 EPD ¶11,240 ] 429 U.S. 125 (1976), and Nashville Gas Co. v. Satty, [15 EPD ¶7948 ] 434 U.S. 136 (1977). In Gilbert, the Court held that a company does not violate Title VII by refusing to extend health insurance benefits to cover pregnancy and pregnancy-related diseases. In Satty, the Court found a Title VII violation when a woman was forced to relinquish all accrued seniority when she took a pregnancy leave. The two cases define the scope of Title VII (before the 1978 amendment) as applied to pregnancy. The distinction between the two cases is subtle, but it is best explained by this passage from Satty:

Here, by comparison, [the employer] has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer.

Nashville Gas Co. v. Satty, supra at 142.

Under this benefit-burden analysis, this Court finds that the forced exhaustion of vacation time is a burden on women taking pregnancy leave, and it is a burden that men need not suffer. Westinghouse argues that the burden is not “substantial,” but merely a “slight limitation” on a female employee’s ability to schedule her vacation. The Court cannot agree that forcing an employee to involuntarily take a “vacation” at an unwanted time is an insubstantial burden. It was particularly egregious in Johnson’s case where she was compelled to take her “vacation” during two weeks in January, thus exhausting all of her annual vacation for that year. The collective bargaining agreement at the Westinghouse plant acknowledges that employees find it desirable to be able to schedule their own vacations. The agreement provides that vacation schedules will be determined by seniority. Moreover, this policy could conceivably deny pregnant women any “vacation” within the ordinary meaning of the word. Presumably, these women would not take their maternity leave until the final weeks of their pregnancy--when they may be least likely to travel extensively or participate in those activities normally associated with a true “vacation.”

While the Court finds that this case is closer to the “burden” in Satty than the “benefit” in Gilbert, there is one difference between this case and Satty that merits further discussion. Satty involved a claim under 42 U.S.C. §2000e-2(a)(2) , which prohibits deprivation of “employment opportunities” or practices having an adverse impact on a person’s “status as an employee” based on sex. The claims regarding vacation exhaustion arguably concern an “employment opportunity,” but more properly fall under 42 U.S.C. §2000e-2(a)(1) , which prohibits “discrimination” in “terms, conditions, or privileges of employment” on the basis of sex. The distinction between subsections (1) and (2) is important because the ill-fated claim in Gilbert was based on subsection (1), while the successful claim in Satty was based on subsection (2).

The Supreme Court in Gilbert focused on the word “discrimination” in subsection (1). The Court held that there was no “discrimination” in an insurance plan that was “facially nondiscriminatory in that ‘[t]here is no risk from which men are protected and women are not.’ ” General Electric Co. v. Gilbert, supra at 138. Again in Satty, the Court held that plaintiff must show that a facially neutral plan is a mere pretext for discrimination in order to state a valid claim under subsection (1). Nashville Gas Co. v. Satty, supra at 144-45.

These two decisions imply that plaintiffs may have a more difficult burden under subsection (1) when the employer’s policies are facially sex-neutral. In this action, however, Westinghouse did not have a facially sex-neutral policy. Plaintiffs allege, and the Court must accept as true for purposes of defendant’s dismissal motion, that the vacation exhaustion policy applied only to pregnancy leave, or maternity and not to other leave categories. Thus, the policy applied only to women and does not even present the appearance of neutrality. [6]

Conclusion

In accordance with the aforegoing opinion, the Court directs that the Union be realigned as a third-party defendant and that the individual plaintiffs secure separate counsel for any further proceedings herein. As to the substantive claims, the Court will grant defendant’s motion to dismiss as to all of the claims for back pay, seniority adjustment, and pension credits based on the “voluntary quit” policy. The Court will also dismiss as moot claims for injunctive or prospective relief based on the nine-months’ continuous service policy and the vacation exhaustion policy. Claims for back pay or damages based on these last two policies will not be dismissed.

The Court directs that, within two weeks of the date hereof, counsel for the parties shall submit an agreed Order which confirms the various rulings set out in the aforegoing opinion.