D.C. Civil Action No. 71-646. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Biggs and Gibbons, Circuit Judges and Huyett, District Judge. Gibbons, Circuit Judge, concurring.
The original complaint and the amended complaint allege that the plaintiff, Dr. Ina Braden, a woman, is employed by the corporate defendant, University of Pittsburgh, as an assistant professor in the Learning Resources Division of the University's Dental School; that the individual defendant, Dr. Wesley W. Posvar, is the Chancellor of the University; that Dr. Braden has brought this action on her own behalf and on behalf of all women currently or previously employed by the University "in professional positions" from January 1968 to the time of the filing of the suit. Without referring to allegations relating to class suits, Rule 23 Fed. R. Civ. Proc., the complaint, Count I, alleges in substance that the defendants have enacted and effected policies and practices of unlawful and systematic exclusion of and discrimination against women by hiring them at lower rank and lesser pay than similarly-trained and qualified men, failing to promote women as they promote men, failing to grant tenure as is granted to men, failing to equalize conditions of employment, substantially excluding women from graduate faculty and administrative positions having policy-making functions, harassing, threatening and employing other punitive measures, including the discharge of women, including the plaintiff, and failing to reappoint women, including the plaintiff, who have been engaged in attempts to bring facts concerning inequities in the employment of women to the attention of the Chancellor and other officials.*fn1 Dr. Braden alleges that she has been employed as an assistant professor in the Dental Behavior Science Department from September 1968 to the present and that she has been actively engaged in the dissemination of information regarding the unequal employment status of women at the University of Pittsburgh and has been chairman of the University Committee for Women's Rights. Count II incorporates paragraphs 1 and 3 through 14 of Count I, and is based primarily on 42 U.S.C. § 1983. Count III alleges the defendant University is a contractor or subcontractor as provided in Executive Order 11246 as amended by Executive Order 11375, pertaining to discrimination on the basis of sex by government contractors and subcontractors, and again alleges discrimination and the absence of a day care center for minor children of female employees. Dr. Braden nowhere alleges that she has a child to be cared for in a day care center. Count IV alleges discrimination in violation of the Pennsylvania Equal Pay Act, 43 P.S. § 336.1 et seq.
The original complaint, filed July 9, 1971, in respect to jurisdiction, states: "1. This Court has jurisdiction of this action under the Act of September 3, 1954, c. 1263, Section 42, 68 Stat. 1241, as amended, 28 U.S.C. Section 1343. 2. This action is brought and these proceedings are instituted under R.S. Section 1979, 42 U.S.C. Section 1983."; and "13. Defendant, by the acts, practices and conduct alleged herein, has, under color of law, subjected and caused to be subjected plaintiff and the members of the class to the deprivation of rights, privileges, and immunities secured by the Constitution and the laws of the United States in violation of R.S. Section 1979, 42 U.S.C. Section 1983. Defendant has violated rights guaranteed to plaintiff and the members of the class under, inter alia, the following provisions of law: (a) the First and Fourteenth Amendments of the Constitution of the United States ; . . ." (Emphasis added.)
On December 16, 1971 the plaintiff was permitted to amend her complaint. In her motion she states that she brought action under 42 U.S.C. § 1983, but that she desires to state a cause of action arising under 42 U.S.C. § 1981, and also desired to add an additional party defendant, viz., Wesley W. Posvar, the Chancellor of the University of Pittsburgh. Leave was granted, and the amended complaint was filed also as a class action. No clean copy of the complaints were filed and it is difficult to summarize their substance, but it is clear that there is reliance in the amended complaint, as in the original complaint, on the First and Fourteenth Amendments of the Constitution and upon alleged violations of §§ 1981 and 1983.
The complaints conclude with prayers that the defendants establish non-discriminatory hiring, payment, opportunity, and promotional plans and programs, and seek to enjoin the defendants from continuing the alleged illegal acts and practices alleged in the complaints and to require the payment of damages with interest, costs of suit and a reasonable attorney's fee.*fn2
The defendants filed an answer denying all major relevant allegations. The last paragraph of the answer consists of a motion to dismiss. The district judge filed a memorandum of law*fn3 and held in substance that the action could not be maintained under 42 U.S.C. § 1981 because § 1981 applied only to Negroes and that the Commonwealth did not have sufficient connection with the University to be able to maintain the action under § 1983.*fn4,*fn5 The last issue tendered is, we believe, governed by Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), and it must be decided whether the Commonwealth, in the language of Mr. Justice Clark, "has so far insinuated itself into a position of interdependence" with the University that it must be recognized as a joint participant in the challenged activity, i.e., discriminating against women. Stated conversely, can the activities of the University be considered to be so purely private as to fall outside the scope of the Fourteenth Amendment.*fn6
It would perhaps be possible for us to decide this last issue on the present record but we think we should not do so. Very important constitutional questions are presented and the Supreme Court has repeatedly informed us that such difficult issues should not be decided except upon a full record and after adequate hearing. Polk Co. v. Glover, 305 U.S. 5, 59 S. Ct. 15, 83 L. Ed. 6 (1938); Borden's Farm Products v. Baldwin, 293 U.S. 194, 79 L. Ed. 281, 55 S. Ct. 187, concurring opinion, 293 U.S. at 213 (1934); Villa v. Van Schaick, 299 U.S. 152, 81 L. Ed. 91, 57 S. Ct. 128 (1936). See also Honeyman v. Hanan, 300 U.S. 14, 25, 81 L. Ed. 476, 57 S. Ct. 350 (1937); Patterson v. Alabama, 294 U.S. 600, 607, 79 L. Ed. 1082, 55 S. Ct. 575 (1935); Rescue Army v. Municipal Court, 331 U.S. 549, 91 L. Ed. 1666, 67 S. Ct. 1409 (1947); DeBacker v. Brainard, 396 U.S. 28, 90 S. Ct. 163, 24 L. Ed. 2d 148 (1969), and Cowgill v. California, 396 U.S. 371, 24 L. Ed. 2d 590, 90 S. Ct. 613 (1970).
In the view that we take of this case we deem it undesirable to pass upon the issues presented by § 1981 and Executive Order 11246 as amended by Executive Order 11375 at this time since we will vacate and remand the judgment for further consideration and a more ample record, as suggested hereinafter. To decide now the applications of § 1981 and the Executive Order but not the application of § 1983 would be to truncate the case, and if an order were entered sustaining or rejecting the position of the district court in respect to these issues, it would not be appealable to the Supreme Court for it would not be a final judgment and major issues would be left unanswered as well as the issue of possible pendent jurisdiction.
The deficiencies in the record are notable. For example, 24 P.S. § 2510-204(a) and (b) provide that the Trustees of the University of Pittsburgh shall consist of 36 members, (a) "one of whom shall be the Chancellor of the University . . . and the Governor of the State, the Superintendent of the Department of Public Instruction, and the Mayor of the City of Pittsburgh," and (b) that 12 of the trustees shall be designated Commonwealth Trustees, and 4 shall be appointed by the Governor, 4 by the President Pro Tempore of the Senate and 4 by the Speaker of the House (with the advice and consent of the Senate). The law provides, therefore (if this interpretation be correct, though we are in doubt concerning it), that, omitting the Chancellor of the University but including the Mayor of the City of Pittsburgh, 3 of the trustees appointed in addition to the 12 Commonwealth trustees are agents of government. It follows, therefore, that if the provisions of the statute have been carried out, at least 15 of the trustees are in fact government connected.
Subsection (a) provides for 36 members of the Board of Trustees, but all those members specified in subsections (a), (b), and (c) total 40. We find this statute exceedingly ambiguous, and since it has been in effect since 1966, we should have the advantage of knowing how it has been construed, how many trustees there really are, and how they are selected.
We cannot decide this case in a semi-vacuum. We do not know, for example, the number of trustees which the University actually has, their names, their tenure of office, and who and what they are, their occupations and connections, and whether or not they are paid for their services or meetings or receive salaries or emoluments, and if so, by whom are these emoluments or salaries paid and what do they amount to. Non constat that the 20 or 24 trustees to be elected pursuant to 24 P.S. § 2510-204(c) have actually been selected or are in office, or that the 15 government-connected trustees were in fact serving or were in office at the times complained of by the plaintiff. Neither are we informed as to the by-laws according to which the 20 or 24 "public" ...