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KUTSKA v. CALIFORNIA STATE COLLEGE

March 31, 1976

Nicholas KUTSKA, Plaintiff,
v.
CALIFORNIA STATE COLLEGE, DEPARTMENT OF EDUCATION, Commonwealth of Pennsylvania et al., Defendants



The opinion of the court was delivered by: GOURLEY

 This is a civil nonjury proceeding filed by the plaintiff, Nicholas Kutska, pursuant to the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A., § 2000e et seq. The Court has afforded the parties a full and complete trial and has considered the briefs and arguments of counsel. Based thereon, it is the considered judgment of the Court that the defendant, California State College, committed no unlawful employment practices in violation of plaintiff's civil rights. *fn1"

 The question for this Court's determination is whether or not the defendant College's dismissal of plaintiff from his temporary part-time teaching position as well as the failure to consider him for the position as Director of defendant's Slavic and Eastern Studies Program was based on some constitutionally impermissible reasons such as plaintiff's national origin.

 The plaintiff contends that in 1971 he was hired by the defendant College as a part-time associate professor to organize and set up a Russian language course for the College with the assurance that if said course was feasible and favorably received by the students he would continue to be employed as a part-time or even possibly a full-time teacher. Plaintiff asserts, however, that because of his national origin (Carpatho-Russian) he was forced out of his temporary teaching position and not even considered for a permanent position.

 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A., § 2000e-2 provides as follows:

 
(a) It shall be an unlawful employment practice for an employer --
 
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;

 The law is well settled that in a Title VII action to establish a prima facie case an aggrieved person must show: (1) that he belongs to a national minority; (2) that he applied and was qualified for a job the employer was trying to fill; (3) that although qualified, he was refused; and (4) that the employer continued to seek applicants with the complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

 For reasons which will now be discussed the Court does not believe that a case of discrimination based on "national origin" has been made out by the plaintiff. Moreover, even after a full and fair opportunity was afforded to him, plaintiff has failed to persuade this Court that defendant's reason for dismissing him, as well as not considering him for a permanent post, was founded on some discriminatory reason or that defendant's hiring and recruiting policy had the effect of excluding persons of Slavic origin. The only fact plaintiff was able to establish was that he was a member of a "national minority".

 Plaintiff was a non-tenured "associate professor" in a state operated college and under Pennsylvania contract law and university tenure regulations he had no property interest in continued employment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); See also: State Colleges Act, 24 P.S., § 20-2001 et seq. It appears, however, that plaintiff bases his right to continued employment as a temporary part-time teacher on the fact that he fulfilled his part of the oral bargain between himself and the President of the College, Dr. Roadman. Plaintiff claims that Dr. Roadman promised him that he would continue to be employed as a Russian teacher as long as the course was a success. Dr. Roadman, however, denies ever making such a statement. A most careful examination of the evidence fails to reveal any basis upon which this Court could conclude that plaintiff's dismissal was the result of discrimination. Plaintiff readily admitted, when he began employment at the defendant College, he was well aware of defendant's desire to obtain a person with a Doctorate in plaintiff's field but that the funds for such a person were not readily available. The Court can find nothing discriminatory or unlawful in defendant's decision not to retain plaintiff's services after the spring of 1972. Mere conclusory allegations of discrimination propounded by the plaintiff is not enough to support his claim.

 As stated in Griggs v. Duke Power Company, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971):

 
"Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed."

 Plaintiff suggests, however, that the failure of the defendant to renew his contract as well as the failure to consider him for the position as Director of the Slavic and Eastern Studies Program is in some way indicative of defendant's discriminatory employment ...


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