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FLEMING v. MACK TRUCKS

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


January 15, 1981

Richard FLEMING
v.
MACK TRUCKS, INC.

The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

In August 1978 defendant's newly revised job descriptions for its audit staff required certification as industrial auditors or public accountants. Consequently, plaintiff, a non-certified public accountant employed by defendant, lost his job. He instituted this action and claimed generally that the "blanket ban" of all non-certified public accountants violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Civil Rights Act of 1870, 42 U.S.C. § 1981, and the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, plaintiff contends that defendant discriminated against him by denying him an available employment opportunity for which he qualified fully. Defendant now moves for judgment on the pleadings and for summary judgment.

 The most elementary principles of law mandate granting of this motion. The Fourteenth Amendment proscribes unequal treatment by state action or conduct under color thereof; *fn1" it does not reach acts of private discrimination. *fn2" This notion lies

 

firmly embedded in our constitutional law ... (T)he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful. *fn3"

 Moreover, plaintiff has alleged no facts from which state action may be imputed to defendant, a private entity. *fn4" Plaintiff has also failed to articulate any legally cognizable claim under § 1981, *fn5" which protects individuals against racial discrimination. *fn6" Plaintiff alleged that defendant discriminated against him on the basis of his professional qualifications, not race. Similarly, the aegis of Title VII *fn7" covers race, religion, sex and national origin; *fn8" it does not include public accountants as such. *fn9" Finally, even if Title VII did, plaintiff has failed to allege that he filed appropriate charges with the Equal Employment Opportunity Commission against defendant and otherwise complied with this compulsory jurisdictional prerequisite. *fn10" Accordingly, defendant's motion for summary judgment will be granted. *fn11"


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