Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 66 EPD ¶43,462, John A. Coia, Plaintiff v. USAir, Inc., Defendant., (Mar. 02, 1995), (Mar. 2, 1995)

John A. Coia, Plaintiff v. USAir, Inc., Defendant.

U.S. District Court for the Eastern District of Pennsylvania, 94-3307, March 2, 1995

Title VII: Civil Rights Act of 1964

Dress Codes: Earrings: Unequal Enforcement of Policy.--

A plaintiff’s allegation that an airlines strictly enforced a grooming policy against men, but failed to enforce the same policy against female employees raised a valid Title VII sex discrimination claim. The policy prohibited men from wearing earrings and restricted the types of earrings that women could wear. The plaintiff alleged that he was not allowed to wear an earring, but female employees were permitted to wear nonconforming earrings. Although Title VII permits employers to impose different grooming standards on men and women, it prohibits the discriminatory enforcement of dress code policies that apply to both sexes. Moreover, the plaintiff’s claim that he was retaliated against for protesting the airline’s discriminatory enforcement of the policy was actionable under Title VII. As a result, the airline’s motions for judgment on the pleadings and to stay discovery were denied.

See ¶451.

Joseph Lurie, Robert T. Murphy, Debra A. Jensen (Galfand, Berger, Lurie, Brigham, & March), Philadelphia, Pennsylvania, for Plaintiff. Marguerite S. Walsh (Buchanan Ingersoll), Philadelphia, Pennsylvania, for Defendant.

VanArtsdalen, S.J.: Before me are defendant USAir Inc.’s Motion for Judgment on the Pleadings and Motion for a Protective Order Staying Discovery. For the reasons set forth in this Memorandum, defendant’s Motion for a Protective Order will be denied, and defendant’s Motion for Judgment on the Pleadings will be granted in part and denied in part.

Introduction and Background

Plaintiff John A. Coia (Coia), a 24 year veteran baggage handler for defendant USAir, Inc. (USAir), brought this action against USAir alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., as amended, and violations of the Philadelphia Fair Practices Ordinance, sections 9-1103(A)(1), (6), and 9-1110(1). This court has subject matter jurisdiction pursuant to federal question jurisdiction, 28 U.S.C. §1331, and supplemental jurisdiction, 28 U.S.C. §1367. After filing an answer, defendant USAir filed the motions now before the court. I will first consider defendant USAir’s Motion for Judgment on the Pleadings.

Facts

The facts as revealed by the pleadings are as follows. Plaintiff Coia began his term of employment with USAir in 1969, when USAir was known as Allegheny Airlines. (Complaint ¶7). Coia worked as a baggage handler throughout his employment with Allegheny and USAir. (Complaint ¶¶7-12). Plaintiff ceased active work in February 1993 due to a disability. (Complaint ¶12).

In September of 1991, USAir instituted a new grooming policy, applicable to all employees, that was to take effect on October 1, 1991. (Complaint ¶31). Under this new policy, male employees were not permitted to wear certain types of hairstyles, including pony tails, nor were they permitted to wear earrings. (Complaint ¶33). The new policy did not prohibit pony tails for female employees and allowed female employees to wear earrings, with certain restrictions as to size, style, and color. (Complaint ¶33; Defendant’s Brief in Support of Motion for Judgment on the Pleadings at 3).

Defendant Coia, who wears his hair in a pony tail and wears an earring, refused to comply with the new policy. (Complaint ¶34). As a result of his noncompliance, USAir suspended him without pay on October 1, 1991. (Complaint ¶35). Plaintiff Coia responded to his suspension by filing a complaint against USAir with the Philadelphia Commission on Human Relations (PCHR) on October 1, 1991. (Complaint ¶36).

After receiving a letter from USAir dated October 25, 1991, warning him that failure to comply with the new grooming policy would result in his termination, plaintiff Coia returned to work on November 1, 1991. (Complaint ¶¶42-43; Defendant’s Brief in Support of Motion for Judgment on the Pleadings at 4). Upon his return, plaintiff wore his hair under a wig, as permitted by the policy. (Complaint ¶44; Defendant’s Brief in Support of Motion for Judgment on the Pleadings at 5 n.2).

Coia did not receive a check from the airline for the time he missed in October. (Complaint ¶¶45-46). Plaintiff pleads that other employees who were disciplined for violation of the new grooming code but later agreed to comply were paid for the time of their suspensions and had their suspensions expunged from their records. (Complaint ¶45). Plaintiff’s suspension was not expunged from his record, despite his compliance with the new policy. (Complaint ¶47). Coia was reprimanded for appearing to collect his check without wearing his wig, and was told that he was to wear the wig whenever he was on USAir property. (Complaint ¶¶48-51). In response to this reprimand and USAir’s refusal to pay him and expunge his record, Coia filed an internal complaint of discrimination with defendant USAir. (Complaint ¶53).

Because plaintiff’s wig proved too large for his uniform caps and hats, he asked the Regional Director of Ground Services for USAir for larger headgear. (Complaint ¶54). When USAir failed to respond to the request, plaintiff decided to wear a beret in place of a uniform cap. (Complaint ¶¶55-56).

Plaintiff pleads that on December 23, 1991, a representative of USAir knowingly and falsely accused him of allowing his hair to show from under his wig. (Complaint ¶¶58-60). On June 30, 1992, USAir’s station manager told plaintiff he could not wear the beret because it was not part of the official uniform. (Complaint ¶62). Plaintiff claims that other employees were allowed to wear non-regulation hats. (Complaint ¶63). When Coia again asked for a larger regulation hat, he was told that larger hats were not available. (Complaint ¶¶69-70). Plaintiff pleads that he was not allowed to wear his earring but female employees were permitted to wear nonconforming earrings. (Complaint ¶73). Coia filed a second complaint against the defendant with the PCHR on July 15, 1992. (Complaint ¶74).

Plaintiff continued to experience difficulty with the grooming policy. He was “written up” for exposing his pony tail while at work on July 22, 1992. (Complaint ¶¶77-78). Plaintiff claims that the write up was “false and pretextual.” (Complaint ¶80). Due to the “ongoing harassment” by defendant, on July 29, 1992, plaintiff Coia flied an amendment to his complaint of discrimination pending before the PCHR. (Complaint ¶82).

Plaintiff alleges that in September of 1992 he was called in for overtime work to act as a replacement worker in case of a strike by the machinists employed by the defendant. (Complaint ¶¶85-87). Plaintiff claims that after the strike was averted, an agent of the defendant deliberately left for the machinists a copy of the sign-in sheet on which the plaintiff and the other replacement workers had signed in, knowing that the machinists would harass the replacements, including the plaintiff. (Complaint ¶89). Plaintiff again amended his PCHR complaint on June 28, 1993, due to “the discriminatory [grooming] policy, . . . the ongoing harassment relating to plaintiff’s hair and earring preferences, . . . the encouraged harassment by the machinists, and due to the retaliatory nature of the ongoing harassment.” (Complaint ¶92).

The Legal Standard

Defendant USAir has moved pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. A Rule 12(c) motion is designed to “dispose of cases on the basis of the underlying substantive merits of the claims and defenses as revealed in the formal pleadings and what is subject to judicial notice.” Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure §1367 (1990)(hereinafter Wright and Miller). For the purposes of the court’s consideration of a 12(c) motion for judgment on the pleadings, “the trial court [must] ‘view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.’ ” Society Hill Civic Ass’n v. Harris, 632 F.2d 1045, 1058 (1980)(quoting Wright and Miller §1368). Judgment on the pleadings should not be granted “unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Id. at 1054 (quoting Wright and Miller §1368). Thus, “a defendant will not succeed on a motion under Rule 12(c) if there are allegations in the plaintiff’s pleadings that, if proved, would permit recovery.” Wright and Miller §1368.

Discussion

Plaintiff’s complaint alleges claims for relief in eight separate counts. [1] Counts I and IV allege that the defendant’s policy of allowing female employees to wear pony tails and earrings while not allowing male employees to do the same is discriminatory and violates Title VII and the PFPO. In his Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings, plaintiff acknowledges that judgment on the pleadings for defendant is proper on these counts. As defendant points out in its Brief in Support of Motion for Judgment on the Pleadings, all seven United States Courts of Appeal which have considered the issue of different grooming requirements for male and female employees have held that an employer has a right to establish and enforce differing grooming requirements. In Bellissimo v. Westinghouse Electric Corp., [37 EPD ¶35,315] 764 F.2d 175 (1985), the Court of Appeals for the Third Circuit held that “dress codes are permissible under Title VII as long as they, like other work rules, are enforced even-handedly between men and women, even though the specific requirements may differ.” Id. at 181. Plaintiff’s claims in Counts I and IV fail as a matter of law.

Plaintiff’s Counts II and V are based on defendant’s alleged discriminatory enforcement of the grooming policy. Plaintiff claims that USAir strictly enforced the grooming policy against men, while it failed to enforce the same policy against its female employees. By the terms of Bellissimo, discriminatory enforcement of a grooming policy, if proved at trial, would establish a violation of Title VII. Under a view of the facts most favorable to the plaintiff, USAir’s discriminatory enforcement of its grooming policy would create a claim under Title VII. Defendant’s motion for judgment on the pleadings as to Counts II and V must be denied.

Plaintiff’s Counts III and VI allege retaliation by the defendant for plaintiff’s filing of PCHR charges. In order to set forth a claim for retaliation under Title VII, a plaintiff must show that he engaged in conduct protected by Title VII, that his employer took adverse action against him, and that there is a causal relationship between the protected conduct and the adverse action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir. 1994) (citing cases).

The facts as alleged by the plaintiff are such that, when viewed in a light most favorable to the plaintiff, they set forth a cognizable claim for retaliation under Title VII. Plaintiff claims he was not in violation of the defendant’s grooming policy but was accused of so being by the defendant. Plaintiff further alleges that the defendant retaliated against him for his filing complaints with the PCHR, in the form of further false accusations and demeaning treatment. Because the facts, when viewed in plaintiff’s favor, indicate that plaintiff was engaged in protected activity, his employer took certain adverse actions against him, and the defendant could have acted in retaliation for plaintiff’s protected activity, defendant’s motion for judgment on the pleadings as to Counts III and VI must be denied. [2]

Defendant USAir has filed, in conjunction with its Motion for Judgment on the Pleadings, a Motion for a Protective Order Staying Discovery. The defendant argues, in essence, that because the court should rule in its favor on its Motion for Judgment on the Pleadings, the court should stay discovery, as the case will be disposed of by the Motion for Judgment on the Pleadings. Because, however, my ruling on the Motion for Judgment on the Pleadings does not dispose of this case, I will also deny the defendants motion to stay discovery. The deadlines set forth in the stipulation and order of January 19, 1995, remain in effect. Discovery should be completed by April 14, 1995. Any dispositive motion must be filed by May 12, 1995. Pretrial memoranda are due by June 12, 1995. The case is to be listed for trial in July of 1995.

An appropriate order follows.

Order

Upon consideration of the Defendant’s Motion for Judgment on the Pleadings and Motion for a Protective Order Staying Discovery, and the plaintiff’s responses thereto, it is ORDERED that

1. Defendant’s Motion for Judgment on the Pleadings is GRANTED as to Plaintiff’s Counts I and IV.

2. Defendant’s Motion for Judgment on the Pleadings is DENIED as to Plaintiff’s Counts II, III, V, VI, VII, and VIII.

3. Defendant’s Motion for a Protective Order Staying Discovery is DENIED.