plans "is to provide benefits for as many Penney associates as possible." He states that the head-of-household rule "helps Penney achieve the purpose of its Plans" by restricting coverage to those "who are dependent upon the associate." Messinger Affidavit, paras. 28-29.
This testimony is sketchy. One could argue that it is self-contradicting: if Penney aims to give insurance to as many associates as possible, why limit coverage at all? Reduced to its simplest form, however, Penney contends that its head-of-household rule enables Penney to cover as many employees as possible. Penney does not elaborate how, as it did in E.E.O.C., 632 F. Supp. at 873-76. There Penney's officers testified that the rule helped Penney achieve its goal of insuring as many of its employees as possible within Penney's limited resources. This court of course cannot take judicial notice of the facts introduced in litigation not between the same parties for the purposes of a summary judgment motion. See Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 10A Federal Practice and Procedure 2d § 2723 (1983). But Colby's complete failure to oppose Penney's factual assertion as to the legitimacy of its head-of-household rule makes it unnecessary for this court to look anywhere else for support of Penney's contentions. Because Colby fails to challenge Penney's statement of uncontested facts -- as Rule 56(e) and Local Rule 12(f) require -- this court must accept Penney's given reason as is. This court thus must grant judgment to Penney on Colby's disparate treatment claims, as the Bennett Amendment exempts Penney's practice.
The court now turns to Colby's disparate impact claims. Penney presents three arguments as to why this court should grant it summary judgment on these too. The first is that Colby cannot uphold her burden of proof in showing that the head-of-household rule discriminates against women in violation of Title VII by virtue of its impact.
The first step in a disparate impact case is the plaintiff's: he or she must establish that the challenged practice has a significantly discriminatory impact. See Connecticut v. Teal, 457 U.S. 440, 446, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982); Colby, 811 F.2d at 1126. Penney does not assert that Colby cannot establish that the head-of-household rule has a significantly discriminatory impact upon women -- indeed, in one of the cases Penney so earnestly presses upon this court, the court held that a class of women could demonstrate the significant discriminatory impact of Penney's same rule. See Wambheim, 705 F.2d at 1419. This court will thus construe Penney's silence on the matter against it for purposes of this motion. See Wright, Miller, and Kane, 10A Federal Practice and Procedure 2d at § 2727.
Once the plaintiff has made out a prima facie case of disparate impact, the burden shifts to the employer to justify his or her practice. The Seventh Circuit held in Colby that Penney could rebut Colby's prima facie case "by showing a good business justification" for the head-of-household rule. Colby, 811 F.2d at 127. It noted approvingly the justification analysis of the court in Wambheim, which required Penney to "demonstrate that legitimate and overriding business considerations" support the rule. Wambheim, 705 F.2d at 1495, quoting Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1303 (9th Cir. 1982).
Penney's bare-bones justification for its rule was presented above: it allows Penney to provide medical and dental insurance to as many of its employees as possible. And, as noted above, Colby has not opposed this stated justification with facts. This court will thus accept Penney's justification and take the third step in disparate impact analysis: examining whether the class can show that Penney's practice is "a mere pretext for discrimination," Teal, 457 U.S. at 447, or whether Penney has other means of serving its legitimate interests "without a similar discriminatory effect," Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977). Colby has introduced no facts suggesting that Penney's head-of-household rule is pretextual or that Penney has less discriminatory means of achieving its purposes. Since all of the facts are thus undisputed, Colby's disparate impact claims are ripe for summary judgment. See Washington v. Elec. Joint Apprenticeship & Tr. Com., 845 F.2d 710, 714 (7th Cir. 1988) (once parties burdens of production are met and undisputed facts before the court, Title VII disparate impact cases properly resolved on summary judgment motion).
This court concurs with the holding of the court in Wambheim that Penney's head-of-household rule does not violate Title VII. While Penney has not introduced the evidence that it introduced before the trial court in Wambheim as to how exactly the rule meets Penney's goals, see Wambheim, 705 F.2d at 1495, Colby has chosen not to deny Penney's testimony as to how the rule operates. It would not have taken much for Colby to avoid summary judgment here -- she would have needed only to introduce evidence denying that the head-of-household rule serves Penney's stated purposes, that the rule is a pretext, or that Penney could achieve its purposes in less discriminatory ways -- but Colby has not done so. Penney is thus entitled to summary judgment on Colby's disparate impact claims.
Colby's failure to dispute Penney's facts also results in summary judgment for Penney by virtue of the fourth defense of the Bennett Amendment. That defense has fewer effects upon disparate impact cases, as the employer's burden in responding to a plaintiff's prima facie case of disparate impact is greater than in disparate treatment cases: the employer must "show" he or she had a good business justification for the practice in disparate impact cases, while he or she need only "articulate" these reasons in disparate treatment litigation. Still, just as in disparate treatment cases, the plaintiff bears the burden of proof in disparate impact cases; by contrast, the Equal Pay Act defenses incorporated into Title VII by the Bennett Amendment place the burden of proof on the employer. Nevertheless, Colby has chosen not to dispute Penney's facts in support of its claim of the fourth Bennett Amendment defense. Holding Colby to her choice, this court must enter summary judgment in favor of Penney on Colby's disparate impact claims on this ground too.
In the third sentence of its brief in opposition to Penney's motion, the class which Colby formerly represented states that the motion "is a complete waste of everyone's time and should be denied." The court agrees that Penney spent too much time on this motion trying to disguise arguments which the Seventh Circuit rejected in Colby. Penney also has put forth arguments that are barely substantial (and barely substantiated) as to why it deserves summary judgment here, now, in this case. But in the end it is only Colby who has wasted her time. She has preferred to ignore the limited substance of Penney's arguments and has forfeited her opportunity to challenge Penney's sketchy facts. Still, facts are facts, and the law is the law, and Colby has lost this chance to save her claims. For the reasons stated above, this court decertifies the class in this case. The court grants Penney's motion for summary judgment on all of Diane Colby's claims. The court further denies Colby's motion for sanctions.