Before LEVENTHAL... and WALD, Circuit Judges, and PENN,.... United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil 77-0857).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD
Candace Hanson appeals from dismissal of her claims of sex discrimination in employment. For the reasons which follow we reverse and remand for the development of a factual record on which to predicate a judgment. I. BACKGROUND OF THE CASE
The facts as alleged in plaintiff's complaint, and supplemented by an affidavit filed in response to defendant's motion to dismiss which we take as true for purposes of this appeal are set forth below.
Candace M. Hanson was a telephone operator at the United States Capitol Telephone Exchange *fn1 from February 1, 1972 until her dismissal on May 21, 1976. In August, 1975, the Sergeant at Arms for the United States Senate, F. Nordy Hoffmann, promulgated a written personnel policy dealing, inter alia, with annual leave, sick leave and maternity leave.
Several months after its promulgation, Ms. Hanson became pregnant. She thereafter made repeated inquiries to her superiors about how the maternity leave policy would be applied to her situation. These inquiries were a direct cause of her dismissal.
Ms. Hanson brought suit against the Sergeant at Arms in both his official and individual capacities for declaratory judgment and injunctive relief, back pay and damages. She alleged that the defendant's conduct and the maternity leave policies discriminated against her on the basis of sex in violation of the United States Constitution. The defendant moved to dismiss on the grounds that the complaint failed to state a claim, and on the grounds that defendant enjoyed sovereign immunity from suit as a United States official and absolute immunity as an individual.
An affidavit submitted in support of the motion to dismiss set forth the text of the policy at issue. Plaintiff does not dispute this statement of the policy, the relevant parts of which follow:
The amount of annual leave granted to employees of the Capitol Exchange will be determined by an employee's length of Federal Service. More specifically, an employee having completed:
6 months' service will have 5 days;
1 years' service will have 10 days;
*fn2 years' service will have 15 days; and
*fn3 years' service will have 20 days.
Vacation schedules will be made in accordance with employees' seniority at the Capitol Exchange. Requests for vacations will be made and published at least six months in advance. This annual leave policy is effective January 1, 1976, for incumbent employees and August 1, 1975, for all new employees. Annual leave cannot be carried over to the next calendar year.
Sick leave will be granted to an employee in the amount of 12 days per calendar year for reasons of personal illness of the employee only. This leave may be taken on an hourly basis and one hour shall be charged for each whole hour taken or fraction thereof. Absences in excess of 12 days will be charged against annual leave. Exceptions to this policy will be made in those cases of catastrophic illnesses or injuries when granted at the judgment of the Senate Sergeant At Arms or the Clerk of the House.
Maternity leave is a period of approved absence for reasons of pregnancy and confinement. It can be charged to sick leave or a combination of sick leave and annual leave. Neither annual leave or sick leave will be advanced for this purpose. Generally, eight weeks should be considered as a maximum period to be absent because of pregnancy and confinement for those employees wishing to be reinstated. If an employee should require more than this eight-week period, the request must be made by a doctor's certificate recommending such additional time and must be submitted to the Chief Operator for approval.
The district court agreed with defendant's argument below that under the principles announced in Geduldig v. Aiello, 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974) and General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), plaintiff's allegations about the Exchange maternity leave policy failed to state a claim of sex-based discrimination.
Discussing Gilbert and Geduldig in its opinion the district court stated:
In those cases the Supreme Court held that the program in question, a disability program which did not cover pregnancy, divided "potential recipients into two groups pregnant women and non-pregnant members. It is clear that while the first group is exclusively female, the second group includes members of both sexes. This precluded a finding of gender-based discrimination, since the second group contained members of both sexes.
In this case, plaintiff Hanson's allegations are similar. She is in effect claiming that the personnel policies of the Telephone Exchange divides employees into two groups, pregnant women and non-pregnant members. Therefore, according to the two Supreme Court decisions cited above, the maternity leave policies of the Telephone Exchange are not facially discriminatory and do not constitute gender-based discrimination.
These policies concerning pregnancy are not the same as the sexually discriminatory policies found in Frontiero v. Richardson, 411 U.S. 677 (93 S. Ct. 1764, 36 L. Ed. 2d 583) (1973) and Reed v. Reed, 404 U.S. 71 (92 S. Ct. 251, 30 L. Ed. 2d 225) (1971). Those policies definitely stated that they were applicable to men and women, thus dividing the population into two classes, each consisting solely of members of one sex. As the Supreme Court stated in Geduldig, "While it is true that only women can become pregnant, it does not follow that every . . . classification concerning pregnancy is a sex-based classification." Geduldig, 417 U.S. at 496-497 n. 20 (94 S. Ct. at 2491-2492).
While admitting that "policies appearing to be facially neutral can in fact be discriminatory if they have that practical effect," the court went on to find that "no such invidiously discriminatory effect has been shown in the instant case." App. 45. In so finding the court appears to have relied on the facial terms of the plan to reach a conclusion contrary to that alleged in the complaint. The court's opinion concluded:
Plaintiff Hanson alleges that the said personnel policies terminate the position of any woman forced to take the maximum maternity leave provided for in the policies. This is inaccurate, as the policies provide for additional periods of leave when a request therefor is accompanied by a doctor's certificate recommending such additional leave. The policy does not terminate individuals who take the maximum leave and in fact makes provision for additional leave.
Id. The court rejected an argument under Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) and Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) to the effect that the Constitution prohibits the imposition of penalties upon the child-bearing decision, even if it does not forbid the withdrawal of benefits,2 concluding, "The instant policies are ...