Agnes' personnel director, Mr. McLaughlin, and his superior, the Executive Vice President, Mr. Callaghan, told him throughout 1975 and 1976 that favorable references were being sent. There is, however, no affidavit or deposition testimony by Daley to that effect. On the other hand, Callaghan and McLaughlin have both denied speaking with Daley during that time period. Indeed, the only evidence Daley presents to support his false assurances theory relates to deposition testimony by Callaghan and McLaughlin regarding references outside the statutory period, see notes 6 and 7, supra. Thus, the "false assurances" claim, alleged for the first time in the final brief, is without foundation.
With regard to the blacklist claim, again plaintiff has offered only hearsay evidence. Defendants attempted to trace the reports of a blacklist, deposing the various persons who were mentioned as hearsay declarants. All testified that they had no personal knowledge of such a blacklist.
Reports of a blacklist must therefore be seen as unsubstantiated rumor, and not as raising a material factual issue.
Apparently recognizing the insubstantiality of his evidence as to retaliatory acts during the statutory time period, plaintiff argues that equitable considerations should toll the time period under the doctrine of equitable modification, which applies when illegal acts are not apparent to a potential plaintiff, especially when defendants conceal their actions. See Hart v. J. T. Baker Chemical Co., 598 F.2d 829 (3d Cir. 1979); Williams v. Department of Navy, 472 F. Supp. 747 (E.D.Pa.1979). Plaintiff's theory is that he was unaware until late summer of 1975 that he was the target of retaliation because defendants had falsely assured him that he was receiving positive job references, thus concealing their illegal retaliatory behavior. But for the reasons discussed at pp. 1315-1316, supra, there is no evidence of any such false assurances. Moreover, the concealment issue was never mentioned in previous briefs, nor were questions addressed to that issue asked of any deponent. Thus there is no evidence to support plaintiff's contention that defendants' concealment of unlawful activities should induce us to apply the doctrine of equitable modification to toll the 180 day time period in order to permit the introduction of evidence from an earlier time.
It is apparent from the foregoing discussion that plaintiff has failed to present a factual basis to support his allegations sufficient to raise a material issue of fact in light of defendants' sworn affidavits. While we are sympathetic to Mr. Daley's plight, we are constrained in view of the foregoing discussion to grant defendants' motion for summary judgment on the Title VII claim.
IV. The Sherman Act Claim
Plaintiff alleges that St. Agnes and other unnamed hospitals conspired to prevent him from obtaining employment in hospital administration, and that this conspiracy was a group boycott in restraint of trade within the meaning of the Sherman Act, 15 U.S.C. § 1. As we explained in connection with the Title VII claim, supra, plaintiff has come forward with no evidence of any conspiracy or agreement or of any retaliatory conduct. While it is true that plaintiff is not restricted to the same 180-day time period to press his Sherman Act claim, we do not believe that the arguably unfavorable Morris Park reference which followed institution of this lawsuit or the avowedly favorable earlier telephone references, see pp. 1313-1314, supra, are sufficient to raise a material issue of fact regarding an antitrust conspiracy. And there is simply no other evidence. In cases charging conspiracy, denial of the conspiracy by defendants' affidavit or deposition testimony is sufficient, under Rule 56(e), to shift the burden to the plaintiff to establish a factual question by the offering of evidence of the conspiracy. See e.g. First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968); Lamb's Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068 (7th Cir. 1978). This plaintiff has not done.
There are two additional bases for granting summary judgment for defendants on the Sherman Act claim. First, plaintiff has failed to establish that defendants' alleged conduct was "in commerce" or "affected" interstate commerce, a necessary prerequisite for invoking Sherman Act jurisdiction. See e.g. McLain v. Real Estate Board, Inc., 444 U.S. 232, 242, 100 S. Ct. 502, 509, 62 L. Ed. 2d 441 (1980). In attempting to make out a showing of effect on interstate commerce, plaintiff has listed a number of factors showing that St. Agnes is "in commerce": out-of-state patients, interstate transport service, use of interstate media for recruiting purposes, purchase of supplies interstate, and so on. Such factors, plaintiff maintains, were sufficient to overcome a jurisdictional challenge in Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976).
There is a significant difference between Hospital Building and the case at bar, however. In that case, the activity complained of, a conspiracy to restrain trade in furnishing medical and surgical services, was held to have an interstate impact. It is plain that, to meet the necessary jurisdictional requisite, the alleged violation must have some nexus with interstate commerce. See McLain, supra ; Hospital Building, supra ; Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48 (3d Cir. 1973). In McLain, for example, which alleged an agreement among real estate brokers to conform to a fixed rate of brokerage commissions, it was respondents' brokerage activity which had to affect commerce. While the unlawful conduct itself need not affect commerce, there must be some relationship between the alleged illegal activity and commerce. Plaintiff has shown no relationship between his supervisory nursing duties or his discharge and interstate commerce.
Furthermore, plaintiff cannot argue that his inability to find employment in surrounding states provides that nexus with interstate commerce, for "the labor of a human being is not a commodity or article of commerce." 15 U.S.C. § 17. Thus even if plaintiff had proffered facts showing that restraints were placed upon the marketing of his services, and even if those restraints curtailed competition among employees, he would not have established a combination or conspiracy in restraint of trade or commerce without some further evidence of anti-competitive effect other than with regard to labor. Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S. Ct. 982, 84 L. Ed. 1311 (1940); Taterka v. Wisconsin Telephone Co., 394 F. Supp. 862 (E.D.Wis.1975), aff'd, 559 F.2d 1224 (7th Cir.), cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977). Since plaintiff has come forward with no other facts which show an effect on commerce, no showing of a nexus between defendants' activities and interstate commerce sufficient to allow the case to proceed to trial has been presented.
The final ground for rejecting plaintiff's Sherman Act claim is our view that the Sherman Act does not provide a remedy for what are in actuality Title VII claims. We are persuaded by the reasoning of those courts that have recently rejected the contention that Sherman Act and Title VII remedies are co-extensive. See Marchwinski v. Oliver Tyrone Corp., 83 F.R.D. 606 (W.D.Pa.1979); Monk v. Island Creek Coal Co., 1979-2 Trade Cases P 62,821 (W.D.Va.1979); NAACP v. New York Clearing House Ass'n, 431 F. Supp. 405 (S.D.N.Y.1977). As explained by the Monk court, "by simply phrasing their claim in terms of the malleable term "competition' and bringing in a civil action sounding in antitrust, plaintiffs could easily circumvent the vital administrative procedure of Title VII and virtually eliminate the EEOC's role as conciliator, thereby frustrating a major policy behind the statute." 1979-2 Trade Cases at 78,762. Furthermore, in addition to the policies of Title VII,
the policies of the antitrust laws counsel dismissal on this ground, for as discussed in the cases cited supra, plaintiff has not suffered an injury of the type contemplated by the antitrust laws as described in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977).
We disagree with plaintiff's contention that Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975) requires a contrary result. Johnson, which held that the remedies under Title VII and 42 U.S.C. § 1981, although related, are independent, relied very specifically upon explicit Title VII legislative history to that effect. There is no comparable legislative history with regard to the Sherman Act. Moreover, we are not saying that the Sherman Act and Title VII are not independent of one another, for they plainly are. What we are saying is that there is no cognate relationship between Title VII and the antitrust laws as there is between Title VII and § 1981, both of which redress race discrimination. Put differently, the type of injury redressed by Title VII is not related to the type of injury cognizable under the antitrust laws, for the Sherman Act provides no remedy for sex discrimination. Hence Johnson is inapposite.
For the foregoing reasons, defendants' motion for summary judgment on the Sherman Act claim will be granted.
V. The 1985(3) Claim
Plaintiff concedes that the allegations of a Title VII violation cannot provide the substantive anchor for recovery under 42 U.S.C. § 1985(3) in light of the recent Supreme Court decision in Great American Federal Savings & Loan Ass'n. v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979).
He continues, however, to press his 1985(3) theory on alternative grounds, asserting that 1985(3) provides a remedy for the alleged private conspiracy of defendants to: (1) interfere with his right to travel by depriving him of job opportunities in other states; (2) deprive him of his First Amendment rights to freedom of speech and association; and (3) deprive him of his statutory right to be free of defendants' violations of the Sherman Act.
Defendants would have us hold that the absence of evidence of conspiracy, discussed supra, necessarily disposes of all these theories. We disagree, for that discussion focused on evidence within the 180-day statutory period of Title VII, a time limitation not valid for plaintiff's broader 1985(3) claims. Nonetheless, we have little difficulty resolving these 1985(3) issues in defendants' favor.
The right to travel argument is plainly inapposite. Those cases, such as Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974), which discuss the right to travel interstate, do so in terms of some burden (usually a statute) which places undue hardship on an individual who wishes to move into a given state. In this case, plaintiff alleges that defendants' activities prevented him from obtaining employment both in Pennsylvania and in other states. In fact, most of the institutions to which plaintiff applied were in Pennsylvania. It is thus plain that plaintiff has suffered no interstate or out-of-state injury which differs in any respect from that suffered within the state. Defendants have not thereby burdened plaintiff's right to travel interstate.
With regard to the Sherman Act claim, we need not decide the question, left open by Novotny, whether § 1985(3) provides a remedy to redress statutory rights other than Title VII. This is because, having granted summary judgment for defendants on the antitrust count, we have removed the only other statutory claim the Sherman Act from the case, and if plaintiffs have no Sherman Act claim, then plainly they have no 1985(3) remedy to redress a nonexistent Sherman Act violation.
We pause a moment longer on plaintiff's First Amendment claim. Neither the Third Circuit nor the Supreme Court has reached the question whether private conspiracies to violate First Amendment rights are subject to redress under 1985(3). While the Third Circuit's opinion in Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971), appeared to implicitly countenance such a cause of action, its opinion in Novotny v. Great American Federal Savings & Loan Ass'n, 584 F.2d 1235 (3d Cir. 1978), vacated, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979), explicitly declined to reach the issue, thus negating the implication that Richardson had decided the question. 584 F.2d at 1249 n. 61. We also declined to reach the question in Carchman v. Korman Corp., 456 F. Supp. 730, 732 n. 3 (E.D.Pa.1978), aff'd, 594 F.2d 354 (3d Cir.), cert. denied, 444 U.S. 898, 100 S. Ct. 205, 62 L. Ed. 2d 133 (1979), and earlier in Local No. 1 (ACA) v. I. B. T. C. W. & H., 419 F. Supp. 263, 275-76 (E.D.Pa.1976). Outside this circuit, there is a split of authority. Compare Murphy v. Mt. Carmel High School, 543 F.2d 1189 (7th Cir. 1976); Cohen v. Illinois Institute of Technology, 524 F.2d 818, 829 n. 33 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S. Ct. 1683, 48 L. Ed. 2d 187 (1976); Bellamy v. Mason's Stores, Inc., 508 F.2d 504 (4th Cir. 1974); with Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971).
We expressed the view in Carchman, supra, citing Judge Spencer Williams' opinion in Baer v. Baer, 450 F. Supp. 481 (N.D.Cal.1978), that it would be unsound for a federal court, absent clear guidance from the Supreme Court,
to decide this enormously complex question by holding that § 5 of the Fourteenth Amendment empowers Congress to reach purely private conspiracies to violate First Amendment rights. We echoed that view in footnote 3 of our July 26, 1978 order in this case, in which we discussed the problem at some length. We see no reason to change that opinion, particularly in the wake of Novotny.
We stop short of holding that 1985(3) provides no remedy for private violations of the First Amendment, for we need not reach that question. We hold instead that this case cannot be distinguished from, and is thereby controlled by, Novotny. The case at bar is factually on all fours with Novotny : Daley's complaint, like Novotny's, depicts a conspiracy to deprive him of employment opportunities because of his advocacy of equal protection rights for women. In 1978, when this motion was originally before us, see p. 1312, supra, and we refused to grant summary judgment for defendants on the 1985(3) claim pending further discovery, this case was in an identical posture with Novotny, which had at that time not yet been argued in the Third Circuit. The Supreme Court's holding in Novotny, see note 17, supra, thus controls here. It would be extremely difficult to justify a result in this case different from the result in Novotny based only upon a post hoc argument raised for the first time in the final brief and argument, four years after the institution of the suit, especially when the pleadings fail to put the claim in issue.
We therefore grant defendants' motion for summary judgment on the 1985(3) count.
VI. Pendent State Claims
The doctrine of pendent jurisdiction is a doctrine of judicial discretion, and when a plaintiff's federal claims are disposed of before trial, even though not unsubstantial in a jurisdictional sense, the general rule is that the state claims should be dismissed as well. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Broderick v. Associated Hospital Service, 536 F.2d 1, 8 n. 25 (3d Cir. 1976); 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3567. By virtue of the appended order, plaintiff's federal claims have been disposed of before trial. Accordingly, we dismiss plaintiff's related state law claims of defamation and interference with advantageous business relations.
An appropriate order follows.