false information there is still no deprivation of liberty which can be remedied under the Civil Rights Act, 42 U.S.C. § 1983. See also Keddie v. Pa. State Univ., supra.
Making a person less attractive for employment is not deprivation of liberty; the discharge must be based upon false and defamatory charges. Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977).
4. Denial of Equal Protection of the Laws
The court holds there has been no showing that the tenured faculty acted arbitrarily or capriciously in denying plaintiff tenure or gave plaintiff any different consideration than was given male assistant professors. What has previously been said with respect to the reasonableness of the action of the tenured faculty in refusing promotion and denying tenure is equally applicable here. The tenured faculty may have shown bad judgment and may have acted on insufficient information but this does not result in a violation or deprivation of constitutional rights under Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), supra.
5. No Cause of Action under 1985(3)
1985(3) was obviously enacted in an endeavor to prevent activities of the Ku Klux Klan and other organizations engaged in denying blacks their Constitutional rights particularly equal protection of the laws in the South after the Civil War. It covers private conspiracies as contrasted with state action under 1983. As was stated by the Court of Appeals for this Circuit in Robinson v. McCorkle, 462 F.2d 111 (3d Cir. 1972) "a conspiracy claim based upon 42 U.S.C. 1985(3) requires a clear showing of invidious, purposeful and intentional discrimination between classes or individuals."
It is true that in Pendrell v. Chatham College, 370 F. Supp. 494 (W.D.Pa.1974) Judge Teitelbaum of this court on a motion to dismiss held the allegations of conspiracy with respect to animus towards women as a class were sufficient to withstand the motion in a suit based on 1985(3), under Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). This court has so held in this case but upon consideration of all the facts we conclude no such conspiracy has been shown by the evidence.
Further the court holds that conspiracy among agents of a single entity, in this case the University of Pittsburgh, is not sufficient to support a cause of action under 1985(3). This is in accord with the familiar rule that a person cannot conspire with himself and therefore for the agents of a single corporation to conspire among themselves and not with outsiders does not state a cause of action under 1985(3). See Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972) the previous holding of the court in the instant case and Keddie v. Penna. State Univ., supra.
The court holds that nothing has been shown here which even approaches an intentional and purposeful discrimination against plaintiff because of her sex which would constitute invidious class based discrimination and a conspiracy under 1985(3). This is amply shown by the discussion contained in that portion of the opinion with respect to the cause of action under Title VII.
In light of this holding with respect to 1985(3) the court finds it unnecessary to reach the Constitutional question posed by defendants that if 1985(3) is to be applied to sex discrimination then it is unconstitutional.
C. Cause of Action Under Equal Rights Clause of Pennsylvania Constitution
Plaintiff has also included in this case a pendent cause of action under Pennsylvania State Law as a result of an alleged violation of Article I § 28 of the revised Pennsylvania Constitution which states: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual".
The question naturally arises whether this recently enacted section of the Bill of Rights of the Pennsylvania Constitution is self executing. Cf. Davis v. Burke, 179 U.S. 399, 21 S. Ct. 210, 45 L. Ed. 249 (1900); Commonwealth v. National Gettysburg Battle Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973).
Even if it should be held by the Pennsylvania courts that Article I Section 28 is self executing, we hold it is not more extensive than 42 U.S.C. § 1983 of the Civil Rights Act and Title VII relative to employment discrimination based upon sex which we have previously held does not exist in this case.
In any event because of doubts as to the position which may be taken by the Pennsylvania courts with respect to this matter we think it proper to abstain until questions under this Article are clarified by the Supreme Court of Pennsylvania or the Pennsylvania Legislature. Under U.M.W. v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) we have discretion as to whether to exercise jurisdiction over a pendent cause of action and we determine under the circumstances this is not an appropriate case to exercise such jurisdiction. We are concerned here with the delicate question of interpretation of the Pennsylvania Constitution and such a question more appropriately should be left to the Supreme Court of Pennsylvania which is charged with the duty in proper cases of issuing finally determinative ruling with respect to the interpretation of this Constitution.
This has been a long and exhausting piece of litigation posing many difficulties for the court as well as for counsel. The case has been thoroughly and exhaustively tried if not over tried by able counsel on both sides. The court is thoroughly appreciative of the important and serious issues involved in this case. On the one hand we have the important problem as to whether sex discrimination is operating to the detriment of women in the halls of academia. If so Congress has mandated that it must be eradicated. Colleges and universities must understand this and guide themselves accordingly. On the other hand we also have the important question as to whether the federal courts are to take over the matter of promotion and tenure for college professors when experts in the academic field agree that such should not occur. In determining qualifications in such circumstances the court is way beyond its field of expertise and in the absence of a clear carrying of the burden of proof by the plaintiff, we must leave such decisions to the PhDs in academia.
CONCLUSIONS OF LAW
(1) The court has jurisdiction of the parties and of the subject matter of this action.
(2) Plaintiff by the weight of the evidence has made out a prima facie case of sex discrimination in the defendants failing to grant her promotion and tenure and her resulting termination under Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. § 2000e et seq.
(3) The defendants have articulated legitimate and nondiscriminatory reasons for the action taken in failing to grant plaintiff promotion and tenure in the department of Biochemistry of the School of Medicine at the University of Pittsburgh with her resultant termination. These reasons are ineffectiveness of her teaching and lack of relevancy of her research to the mission of said department. The defendants have proved their justification by a preponderance of the evidence in the case.
(4) Plaintiff has not shown by a preponderance of the evidence that the reasons advanced for the action taken with respect to her were pretextual.
(5) Title VII of the Civil Rights Act of 1964 as amended by the Educational Amendments of March 24, 1972 P.L. 92-261 is applicable to the University of Pittsburgh with respect to actions taken on and after March 24, 1972 in failing to grant plaintiff promotion and tenure with resultant termination of her employment.
(6) The plaintiff has failed to establish by a preponderance of the evidence that retaliation against her occurred because of filing EEOC charges which retaliation would be in violation of 42 U.S.C. § 2000e-3.
(7) Plaintiff has failed to establish by a preponderance of the evidence that the action of the defendants in refusing to grant her promotion and tenure with resultant termination was in violation of Title VII of the Civil Rights Act of 1964 as amended.
(8) The University of Pittsburgh is a state institution whose conduct may be actionable under the Civil Rights Act 42 U.S.C. § 1983.
(9) The plaintiff has shown no deprivation of any right guaranteed under the First Amendment to the U.S. Constitution.
(10) The plaintiff has shown no violation of due process of law which would be cognizable under the Civil Rights Act and the Fourteenth Amendment to the U.S. Constitution.
(11) Plaintiff has shown no denial to her of equal protection of the laws which would be a violation to the Fourteenth Amendment to the Constitution and cognizable under 42 U.S.C. § 1983.
(12) The plaintiff has shown no conspiracy against her in violation of 42 U.S.C. § 1985(3).
(13) The plaintiff has shown no denial or abridgement of equality of rights in violation of Article I Section 28 of the Pennsylvania Constitution because of her sex.
(14) The court in the exercise of its discretion determines it should not exercise pendent jurisdiction over any cause of action which plaintiff may have as a result of the alleged violation of Article I Section 28 of the Pennsylvania Constitution.
(15) The complaint in this case should be dismissed in its entirety against all defendants and judgment should be entered in favor of the defendants and against the plaintiff and the preliminary injunction heretofore entered in this case should be dissolved.