The opinion of the court was delivered by: TEITELBAUM
Nan Pendrell, the plaintiff in this action, is a former Associate Professor of Anthropology at Chatham College in Pittsburgh. At the end of the 1971-72 academic year, her employment contract with the college was not renewed. She thereupon filed suit under 42 U.S.C. § 1983
and § 1985(3)
against Chatham College, its president and provost, its Board of Trustees and the Board's chairman, and the chairman of the faculty committee on promotion and tenure. Her complaint alleges that she has been discriminated against on the basis of her age and sex.
Nan Pendrell had begun her academic career in 1957 at the age of 53. By 1961 she had graduated magna cum laude from Columbia University and had received a Ph.D. from that same institution in 1968. In the spring of 1968, a few months short of her 65th birthday, plaintiff entered into correspondence with the defendant administrators of Chatham College, which resulted in her acceptance of a teaching position with the college.
In September of 1968, plaintiff assumed her teaching duties at the college. Two months later, in November, she became 65 years of age. Thus, her employment with Chatham was apparently governed from the outset by the following provision in the faculty manual:
"Under rare and unusual circumstances and at the discretion and on the initiative of the College, appointment of a member of the faculty or of an administrative officer may be extended beyond the normal retirement age on an annual basis."
In February of 1971, plaintiff received from defendant Eddy, the president of the college, a letter of employment stating that the academic year 1971-1972 would be her final year of appointment on the faculty of Chatham. No reason was given in that writing for the termination of her employment. Plaintiff signed the letter of employment accepting the aforesaid condition, but filed the within civil action alleging that she had been deprived of certain of her constitutional rights.
Plaintiff alleges that she has been deprived of due process in that she was denied a hearing by defendants on the reasons for the nonrenewal of her employment. She alleges that she has been denied equal protection of the laws in that at least one male faculty member who is older than plaintiff has been retained by the college. In addition, her complaint alleges that her First Amendment rights have been abridged insofar as her dismissal was due to her "academic and extracurricular involvement in the [struggles] of black people [and women] for liberation, for basic equality and freedom from oppression."
The suit is before the Court on defendants' motion to dismiss. In sum, defendants contend that this Court lacks jurisdiction over the subject matter of this suit, that is, that plaintiff has failed to state a claim for relief under either Section 1985(3) or Section 1983. It is defendants' contention that plaintiff cannot demonstrate the existence of the requisite element of state action as to her Section 1983 claim and cannot show that a conspiracy existed as to her claim under Section 1985(3).
On July 5 and 6, 1973, in accordance with Braden v. University of Pittsburgh, 343 F. Supp. 836 (W.D. Pa. 1972), rev'd, 477 F.2d 1 (3d Cir. 1973), an evidentiary hearing was held to determine whether plaintiff stated a cause of action under either of the relevant sections of the Civil Rights Act. On the basis of the evidence, the depositions and testimony presented at that hearing, and in accordance with the reasoning and case law set forth below, it is held that plaintiff has stated a claim upon which relief may be granted as to Section 1985(3) only. Defendant's motion to dismiss will be denied as to plaintiff's Section 1985(3) cause of action and granted as to the action brought under Section 1983.
The two elements which must be demonstrated in order to state a cause of action under 42 U.S.C. § 1983 are: (1) the deprivation of a constitutionally guaranteed right, (2) by a defendant who acted under color of state law. The state action requirement will be discussed first.
We start from the premise that "conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966). But, as stated in Moose Lodge v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972):
"While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to 'State action, ' on the other hand, frequently admits of no easy answer."
It is "only by sifting facts and weighing circumstances [that] the nonobvious involvement of the State in private conduct can be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
In practical application, the vague generalities of the Burton test have been formulated into five different approaches to the problem of determining whether state action exists in fact situations where the allegedly discriminatory acts were committed by persons who were not clearly employees or agents of government bodies. The first approach entails the itemization and tallying of contacts, primarily financial and regulatory, between the entity under examination and state and municipal authorities. If the number of contacts meets or exceeds a certain standard (which is rarely, if ever, defined), then state action is said to exist. The foremost example of this sort of judicial approach is Burton v. Wilmington Parking Authority, supra, wherein the operation of a restaurant by a private lessee within a publicly owned and financed parking garage building was held to constitute state action when the restaurant refused to serve a black customer. The Supreme Court listed the interconnections between the restaurant and the state and concluded:
" Addition of all these activities, obligations and responsibilities of the Authority . . . indicates that degree of state participation and involvement in discriminatory action which it was the design of the ...