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SMITH v. PRIVATE INDUS. COUNCIL OF WESTMORELAND &

November 4, 1985

HARVEY J. SMITH, SR., Plaintiff,
v.
PRIVATE INDUSTRY COUNCIL OF WESTMORELAND AND FAYETTE COUNTIES, INC., CARL BARTOLOMUCCI, Individually, and as Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc., EDWARD J. LYONS, Individually, and as Chairman of the Private Industry Council of Westmoreland and Fayette Counties, Inc., Defendants



The opinion of the court was delivered by: SIMMONS

SIMMONS, United States District Judge.

 MEMORANDUM AND ORDER

 Plaintiff, Harvey J. Smith, Sr., a black adult male, filed a Complaint against the Defendants on February 6, 1985, alleging two separate causes of action under federal law. Count I of the Complaint against Defendant Private Industry Council of Westmoreland and Fayette Counties, Inc. only, was brought under Title VII of the Civil Rights Act of 1964; Count II of the Complaint, against all the Defendants, was brought under 42 U.S.C. § 1985(3).

 The Defendants filed a joint Motion to Dismiss, and/or Strike, pursuant to Rule 12 of the Federal Rule of Civil Procedure. The issues raised by the Defendants can be summarized as follows:

 
1. The Complaint allegedly fails to state a cause of action under 42 USC. § 1985 (3), because:
 
a. Charges of employment discrimination are allegedly cognizable only under 42 U.S.C. § 2000e, et seq.;
 
b. But in any case, the gravamen of a complaint under 42 U.S.C. § 1985(3) is a conspiracy, and, allegedly, as a matter of law, a conspiracy cannot be made out between a corporation and its directors or officers.
 
2. The complaint fails to state a cause of action under 42 U.S.C. Section 2000e, et seq. because:
 
a. The Plaintiff allegedly did not fulfill all of the conditions precedent to filing a complaint under this statute; and
 
b. In any case, the application of 42 U.S.C. Section 2000e, et seq. to the defendants is allegedly a violation of the Eleventh Amendment to the Federal Constitution, and the Supremacy Clause, as well as a violation of principles of federalism.
 
3. In addition the Defendants have raised, but not briefed, the following issues:
 
a. The Court allegedly lacks subject matter jurisdiction;
 
b. The Court allegedly lacks personal jurisdiction;
 
c. The Complaint allegedly is not timely.

 For the reasons hereinafter set forth, Defendants' Motion to Dismiss and/or Strike is denied.

 I. FACTS

 The Defendants are described in the Complaint as follows: Defendant Private Industry Council of Westmoreland and Fayette Counties, Inc. ("PIC"), is a non-profit corporation, incorporated under the Laws of Pennsylvania. Defendant Carl Bartolomucci is the Executive Director of Defendant PIC. Defendant Edward J. Lyons was at all times relevant hereto a member of the "New Appointing Council" responsible for selecting the Executive Director of PIC.

 The operative factual allegations set forth in Plaintiff's Complaint are as follows:

 10. The Defendant, Private Industry Council, of Westmoreland and Fayette Counties, Inc., has in violation of the provisions of Title VII of the Civil Rights Act of 1964, denied and continues to deny the Plaintiff equal opportunity for employment because of the Plaintiff's race. In particular, the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., has engaged in the following unlawful practices with the purpose and effect of denying black persons equal opportunity for employment:

 
a. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., did not post a position vacancy notice for the position of Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc.;
 
b. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., did not advertise a position vacancy notice for the position of Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc.;
 
c. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., arbitrarily preselected Defendant, Carl Bartolomucci, for the position of Executive Director without consideration of any comparative qualifications or the utilization of any procedures normally and customarily utilized in the hiring process;
 
d. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., denied the Plaintiff, and another black person, a female, an equal opportunity to be hired for the position of Executive Director;
 
e. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to provide an opportunity for advancement to Plaintiff and another black person, a female, on the same basis as opportunity for advancement is provided for white persons;
 
f. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to interview the Plaintiff and another black person, a female, for the position of Executive Director, despite the superior qualifications of the Plaintiff and the other black person;
 
g. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to request the Plaintiff and another black person, a female, to submit a resume for consideration ...

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