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JACKSON v. UNIVERSITY OF PITTSBURGH

December 12, 1975

Virginia JACKSON, on behalf of herself and all others similarly situated, Plaintiffs,
v.
The UNIVERSITY OF PITTSBURGH, and Wesley W. Posvar, et al., Defendants



The opinion of the court was delivered by: SCALERA

 Defendants, University of Pittsburgh, et al., have moved to dismiss under Rule 12, Federal Rules of Civil Procedure, each of the six counts of plaintiff Jackson's amended complaint. *fn1"

 Jackson, a lab technician employed by the University of Pittsburgh from February 17, 1969 until September 18, 1970, on which date she was laid off, seeks damages and injunctive relief. Jackson avers that Pitt refused to rehire or transfer her to another position and that since September 1, 1970, she has been denied employment because of Pitt's discriminatory policies and practices. She complains that Pitt and the individually named defendants and the defendant class engaged in a conspiracy to discriminate against her and other similarly situated women.

 Plaintiff filed her amended complaint as a class action under Rule 23(a) and Rule 23(b)(2), Fed.R.Civ.P., *fn2" on behalf of all women who are and have been employed by Pitt in non-faculty positions from February 1969 until the present, and all women who might have been employed by the University in non-faculty positions from February 1969 until the present, who have been, continue to be, or might be adversely affected by the discriminatory practices alleged in the complaint. *fn3"

 In addition to the University and the other named defendants, plaintiff files her claims against a class of defendants comprising all past, present and future members of the Executive Committee of the Board of Trustees of Pitt during the period from February 17, 1969 until the present. Plaintiff avers that each defendant and each member of the defendant class is being sued both in an official and in an individual capacity and as a co-conspirator in Count V, which is based upon 42 U.S.C. § 1985(3).

 Count I -- 42 U.S.C. § 1981

 In Count I, plaintiff avers that Pitt's alleged sexually discriminatory policies violate § 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. *fn4" Contrary to plaintiff's contention in her brief, it has been uniformly held in this court that 42 U.S.C. § 1981 provides no remedy for sex discrimination. McIntosh v. Garofalo, 367 F. Supp. 501 (W.D.Pa.1973); Weyandt v. Mason's Stores, 279 F. Supp. 283 (W.D.Pa.1968).

 This viewpoint has been reasserted in two cases in this court in which the University of Pittsburgh is a defendant. In Braden v. University of Pittsburgh,5 the trial court dismissed Count I of the plaintiff's complaint for the reason that § 1981 applies only to race discrimination. The decision in this case was reversed and remanded as to another count. In a concurring decision, one Judge of the Court of Appeals noted that he would have affirmed the dismissal of Count I based on the proposition that 42 U.S.C. § 1981 applies only to racial discrimination. The district court in its decision after remand has again dismissed Count I for the same reason as its initial dismissal of the count.

 In Johnson v. University of Pittsburgh,6 the district court in an unpublished memorandum decision dated June 4, 1974 ruled that to the extent the plaintiff's complaint relied on 42 U.S.C. § 1981 the complaint was dismissed.

 As noted by the United States Supreme Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S. Ct. 1716, 1720, 44 L. Ed. 2d 295 (1975):

 
"Title 42 U.S.C. § 1981 . . . on its face relates primarily to racial segregation in the making and enforcement of contracts. Although this Court has not specifically so held, it is well settled among the federal courts of appeals -- and we now join them -- that § 1981 affords a federal remedy against discrimination in private employment on the basis of race." [footnote omitted]

 Having alleged only sex discrimination, Count I of plaintiff's complaint will be dismissed.

 Count II -- 42 U.S.C. § 1983

 Defendants move to dismiss Count II on the basis that there is not the requisite "state action" to maintain this charge against Pitt. Defendants' motion to dismiss was filed prior to Chief Judge Sorg's decision after remand in Braden v. University of Pittsburgh, supra. It was, of course, decided in Braden that Pitt's activities were clothed with the necessary "state action" for the purpose of 42 U.S.C. § 1983. This issue is presently on interlocutory appeal with the United States Court of Appeals for the Third Circuit. Chief Judge Sorg's decision on this issue in Braden is dispositive of the "state action" issue in the matter sub judice. The court concludes that defendants' motion to dismiss Count II will be denied.

 Count III -- Executive Order 11246, as amended 11375, 42 U.S.C. Note to § 2000e

 In her amended complaint, plaintiff avers that she is bringing Count III on the basis of Executive Order No. 11246, as amended by Executive Order No. 11375. Plaintiff states that Pitt is a contractor and subcontractor as defined in these Executive Orders, and that defendant Pitt has not taken affirmative action to insure that plaintiff and the members of her class are employed without regard to sex.

 Defendants move to dismiss Count III on the basis that the Executive Orders do not confer upon an individual (or an organization) the right to sue to enforce the anti-discrimination mandate of these Executive Orders, or to challenge the degree of compliance of the contractor with the orders. In Braden v. University of Pittsburgh, supra, Chief Judge Sorg held that a careful reading of these orders "discloses no provisions which suggest or create any right in an individual to seek injunctive relief or to assert a claim for damages against an alleged noncomplying contractor." Judge Dumbauld in Bradford v. Peoples Natural Gas Company, Inc., 60 F.R.D. 432 (W.D.Pa.1973), also concluded that these orders charged the Secretary of Labor, not a private individual, with the responsibility for their enforcement. Accord, EEOC v. Am. Tel. and Tel., 365 F. Supp. 1105 (E.D.Pa.1973); Gnotta v. United States, 415 F.2d 1271, 1275 (8th Cir. 1969) [Justice Blackmun]; Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 8-10 (3d Cir. 1964). In her brief in opposition to defendants' motion to dismiss, plaintiff does not respond to defendants' argument on this point. Therefore, Count III should be dismissed.

 Count IV -- Equal Pay Act, 29 U.S.C. § 206(d)(1)

 Defendants move to dismiss this count which is founded on the "Equal Pay Act" section of the Fair Labor Standards Act, 29 U.S.C. § 206(d)(1), on the basis that plaintiff was a mere "applicant for a job" and not an employee as this Act requires for its application. Defendants overlook the explicit averment of paragraph 4(b), p. 2 of the amended complaint, in which plaintiff states that she was employed by Pitt as a lab technician from February 11, 1969 to September 1, 1970.

 In their brief, defendants advance the additional proposition that the plaintiff's Equal Pay Act claim under Count IV should be dismissed for the reason that plaintiff has relied on the incorrect class action procedure of Rule 23, Fed.R.Civ.P. Defendants contend that the Equal Pay Act has its own class action provision, 29 U.S.C. § 216(b) *fn7" which is distinct and unrelated to the normal class action covered by the procedure set out in Rule 23, and because Count IV ...


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