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ARMSTRONG v. SCHOOL DIST. OF PHILADELPHIA

November 29, 1984

ARMSTRONG
v.
SCHOOL DISTRICT OF PHILADELPHIA, et al.



The opinion of the court was delivered by: LORD, III

 Plaintiff filed a civil rights suit against the School District of Philadelphia, its Superintendent, the Board of Education, and her union, the Philadelphia Federation of Teachers ("PFT"). Her amended complaint accuses defendants of a continuing pattern and practice of racial discrimination and alleges causes of action based upon 42 U.S.C. §§ 1981, 1983, 1985 and 1986.

 The PFT has filed a motion for judgment on the pleadings, or in the alternative, a motion for summary judgment. Since the parties refer to evidence adduced in discovery, the PFT's motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(c). Plaintiff's response to a properly supported summary judgment motion may not rest upon the allegations of her pleading. Rather, plaintiff must produce admissible evidence sufficient to create a genuine issue of material fact. Fed.R.Civ.P. 56(e).

 The heart of plaintiff's accusations against the PFT is found in Counts IV, V and VI of the complaint. For the following reasons the PFT will be granted summary judgment as to those counts.

 Count IV alleges that the PFT engaged in a pattern and practice of discrimination against plaintiff and conspired with the other defendants in violation of § 1981. Specifically, plaintiff avers that the PFT: (1) failed to provide effective representation by permitting plaintiff's employer to discriminate against blacks; (2) negotiated and entered into contract provisions which had the effect of denying blacks equal opportunity for employment; (3) failed to act affirmatively to prevent plaintiff's employer from discriminating against blacks; (4) failed to process the grievances of black employees on the same basis as the grievances of whites were processed. Count VI alleges that this purported pattern and practice of discrimination by the PFT violated §§ 1985(1) and (3), and 1986, as well as § 1981.

 Count V alleges that the PFT conspired to prevent plaintiff from effectively performing her duties on the Mayor's Commission For Women and to have her removed from said Commission. Defendants allegedly engaged in these activities because plaintiff is black and in retaliation for her actions on the Commission. Plaintiff avers that this purported conspiracy violated her rights under §§ 1981, 1983, 1985(1) and (3) and 1986.

 I. Plaintiff's Section 1981 Claims

 A cause of action in the employment context based upon § 1981 must set forth facts tending to establish that the allegedly disparate treatment suffered by plaintiff was the result of purposeful or intentional discrimination. Section 1981 "does not extend to facially neutral conduct having the consequence of burdening one race more than the other." Croker v. Boeing Co., 662 F.2d 975, 989 (3d Cir. 1981) (en banc). The criterion of purposeful or intentional discrimination cannot be satisfied by vague and conclusory allegations in the complaint unsupported by affidavits, depositions, or other admissible evidence dehors the complaint, stating the specific facts upon which claims of discrimination are based. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976).

 A union's failure to negotiate a contract to correct an employer's discriminatory practices gives rise to a cause of action under § 1981 only if racial animus on the part of the union is specifically shown. See e.g., Goodman v. Lukens Steel Co., 580 F. Supp. 1114, 1160 (E.D. Pa. 1984). In her deposition testimony plaintiff was not only unable to identify any specific contract provision which had the effect of discriminating against blacks, but also admitted that she had "no idea" whether the union negotiated and entered into the contract with the intention of discriminating against black employees.

 It is axiomatic that a union must in all respects represent all of its members in a nondiscriminatory fashion. But a crucial element of a claim of discriminatory representation is a factual showing that in similar circumstances whites were treated differently from blacks. See e.g., Donaldson v. Taylor Products Div. of Tecumseh, 620 F.2d 155, 159 (7th Cir. 1980). Although questioned extensively on the issue of actual discrimination during her deposition, plaintiff could cite no instance where a white person was treated differently than she was by the PFT.

 Counts IV and VI lack the specificity necessary to maintain a § 1981 suit and discovery has totally failed to uncover the factual predicate necessary to support plaintiff's claims.

 The only evidence adduced in support of the allegations in Count V is that the PFT wrote Mayor Green requesting that "representatives of labor" be appointed to the Commission. There is no evidence that the PFT's request involved the plaintiff in any way. A fortiori, there is no evidence that any action taken by the PFT with regard to the Commission or plaintiff's position on it, was the result ...


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