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OSHIVER v. COURT OF COMMON PLEAS

April 27, 1979

Sylvia OSHIVER
v.
COURT OF COMMON PLEAS, COURT ADMINISTRATION



The opinion of the court was delivered by: POLLAK

Plaintiff Sylvia Oshiver began working for defendant Court of Common Pleas *fn1" in 1969, *fn2" first as a Statistical Clerk and then as a Programmer Trainee. Not having progressed beyond Trainee in eight years, plaintiff filed charges of age and sex discrimination with, respectively, the Department of Labor and the Equal Employment Opportunity Commission in the summer of 1978. When notified in September that she was one of approximately thirty members of the Court of Common Pleas staff to be terminated for budgetary reasons, plaintiff brought this lawsuit, challenging both the failure to promote and the termination. She alleged in her complaint that her termination was both a second discrimination against her on the basis of her age and/or sex and an act of retaliation for having previously filed charges that her non-promotion was based on defendant's age and sex discrimination. The complaint, seeking reinstatement at a proper level of employment and back pay, asserted causes of action under (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e Et seq., (2) The Age Discrimination in Employment Act, 29 U.S.C. § 621 Et seq., and (3) the Civil Rights Act of 1871, 42 U.S.C. § 1983. *fn3"

Plaintiff has moved for a preliminary injunction requiring defendant to reinstate her pending an ultimate plenary hearing on plaintiff's prayer for a permanent injunction and damages. *fn4" Defendant has filed a motion to dismiss the complaint. For the reasons which follow, defendant's motion is denied and plaintiff's motion is granted.

 I. The Motion to Dismiss

 Defendant moves to dismiss the complaint on four grounds. First, defendant asserts that plaintiff failed to pursue an available state remedy for age discrimination, thereby barring the age discrimination count of this complaint. However, the Court of Appeals in this Circuit has recently announced that no such exhaustion of state remedies is required. Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1974). *fn5"

 Third, defendant asserts that this Court is without jurisdiction to entertain plaintiff's Title VII claim of sex discrimination, since the complaint does not allege receipt by plaintiff or a "right to sue" letter from the Department of Justice. *fn6" But plaintiff has now filed with the Court a copy of her "right to sue" letter, curing the jurisdictional problem. See 42 U.S.C. § 2000e-5(f) (1); Jones v. United Gas Improvement Corp., 383 F. Supp. 420, 424-25 (E.D.Pa.1974) (citing cases).

 Finally, defendant urges that the complaint does not state a cause of action under Section 1983 for the reason that it alleges only a single act of discrimination against plaintiff, not a systematic policy of the Court of Common Pleas to discriminate against female and/or older employees. Defendant relies on Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), for the proposition that a state or local governmental entity may be found liable under Section 1983 not on a broad Respondeat superior basis but only for such infringements of a plaintiff's constitutional rights as are adopted by the governmental entity as official policy. Assuming, Arguendo, that this reading of Monell embraces the entire implication of that important decision, defendant is nonetheless not entitled to dismissal of this count at this preliminary stage. It is true that the complaint alleges acts of discrimination against only one individual. Plaintiff may, however, be able to prove at the ultimate plenary hearing that her firing and her failure to win promotion are not isolated events but reflect a generalized discriminatory policy. Thus there is a conceivable set of facts under which plaintiff could prove a cause of action under this count. The possibility of such proof requires that a motion to dismiss a count be denied. See, e.g., In re Pittsburgh & Lake Erie R. R. Co. Securities Litigation, 378 F. Supp. 441 (E.D.Pa.1974).

 II. The Motion for a Preliminary Injunction

 In deciding whether to grant a preliminary injunction, a federal court must examine four questions:

 
(a) Did the movant make a strong showing that it is likely to prevail on the merits?
 
(b) Did the movant show that, without such relief, it would be irreparably injured?
 
(c) Would the grant of a preliminary injunction substantially (harm) other parties interested in the proceedings?
 
(d) Where lies the public interest?

 A. O. Smith Corp. v. F. T. C., 530 F.2d 515, 525 (3d Cir. 1976).

 In order to demonstrate the requisite likelihood of success on the merits, plaintiff must put forward evidence which demonstrates the existence of a Prima facie case of discrimination on a prohibited basis. See Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D.Mass.), Aff'd, 545 F.2d 222 (1st Cir. 1976). The burden then shifts to the defendant to show a good faith non-discriminatory reason for the action taken. Id. Of course, the determination at this preliminary stage of whether plaintiff has presented a Prima facie case and whether defendant has offered an adequate explanation for apparently ...


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