The opinion of the court was delivered by: TROUTMAN
In December, 1982, plaintiff Paula Howard had written to Pine Forge Academy, a Seventh Day Adventist secondary school located in Berks County, Pennsylvania, seeking an unspecified position. Wilbert Cheatham, the Academy's principal, offered her the position of Registrar/Administrative Assistant in early August, 1983, which she accepted. Howard moved to Pine Forge from Indiana to begin work in September, 1983.
In January, 1984, problems developed between Howard and Cheatham, her supervisor, culminating in a letter to her on February 14, announcing Cheatham's intention to terminate her employment for insubordination. (Appendix to Memorandum in Support of Motion by Defendants, Pine Forge Academy, Meade C. Van Putten and Wilbert A. Cheatham, for Judgment on the Pleadings or in the Alternative for Summary Judgment, Doc. # 28, Exh. 1). Later, Cheatham implicitly admitted that he had no authority to terminate her employment, but could only recommend her termination to the Pine Forge Academy Board of Trustees. (Id., Exh. 7). On March 22, the Academy Board of Trustees voted to terminate Howard's services at Pine Forge and so notified her by a letter dated March 23, 1984. (Id., Exh. 8).
In May, 1985, after receiving a right to sue letter from the EEOC, Howard filed this action in which she alleges numerous discriminatory practices on the part of Pine Forge Academy, Columbia Union Conference of Seventh Day Adventists, Cheatham and Meade Van Putten, Pine Forge Academy Board of Trustees Chairman. Count I lists charges of pervasive and all-encompassing race and sex discrimination allegedly practiced by all defendants. Count II alleges that the practices alleged in Count I constitute violations of 42 U.S.C. §§ 1981, 1983, 1985(1)-(3) and 1986. In Count III Howard alleges that her supervisor subjected her to harassment in the form of unwanted sexual advances and refusal to supervise her work and assign tasks when she rebuffed the advances, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(2). In Count IV, Howard alleges that Pine Forge Academy's advice to prospective employers that she was fired for insubordination constituted an unlawful employment practice under Title VII. Count V alleges breach of contract, a State law claim.
All defendants moved for judgment on the pleadings or for summary judgment in accordance with an order of the Magistrate setting deadlines for the filing of such motions and responses thereto. On July 10, 1987, two weeks after the date set in the Magistrate's order for responses to the motions for summary judgment, this Court granted defendants' motions as unopposed, having had no word from plaintiff with respect to whether she intended to respond to the motions. Subsequently, on July 29, 1987, plaintiff moved for reconsideration of the order granting summary judgment and appended a substantive response to the motions.
Both sides to this litigation expended much time and energy to convince the Court that their respective positions relating to the plaintiff's failure to file a timely response to defendants' motions are justified. Thus, defendants contend that plaintiff's counsel's conduct was contumacious in disregarding an order of the Court by attempting to have them agree to an extension of time for filing a response to their motions. Plaintiff's counsel contends that defendants' counsel orally agreed to his proposed stipulation, but later refused to sign it. There is no need to resolve this conflict among counsel. While we agree with defendants that plaintiff should have sought a modification of the Magistrate's order at the outset, we will not allow a judgment to stand on a technical failure to comply with an order in one instance. Accordingly, the Court has given full consideration to the defendants' motions and plaintiff's response on the merits. We have concluded, however, that defendants' motions should be granted and thus the judgment previously entered will be reaffirmed and reentered for the reasons which follow.
Initially, a review of the parties' respective burdens on summary judgment is in order. The standards set forth in Fed. R. Civ. P. 56(c) are well known, i.e., that, "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law". Application of those standards, however, has not always been consistent. Fortunately, the United States Supreme Court has recently provided significant guidance in determining when those standards have been met by the moving party.
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), the court emphasized that while the trial court must not engage in fact-finding when considering a summary judgment motion, the party opposing the motion bears the burden of coming forward with sufficient evidence to support a jury verdict in his or her favor. Where there is a disputed issue of fact, the fact must be material, i.e., must be essential to the maintenance of the claim or defense upon which the nonmovant bears the burden of proof at trial. All evidence produced by the nonmovant will be accepted by the Court as true, and all reasonable inferences therefrom will be drawn in favor of the nonmovant. The Court should not lose sight of the purpose of summary judgment, "to isolate and dispose of factually unsupported claims or defenses". Catrett, 91 L. Ed. 2d at 274.
Applying the foregoing standards to Count I of the complaint, it is readily apparent that judgment must be granted in favor of all defendants on the allegations contained therein. Plaintiff has produced absolutely no evidence of discriminatory hiring, firing or assignment of personnel on the basis of race or sex. When asked to give specific examples of discriminatory employment practices, plaintiff stated that she was denied unemployment compensation contrary to the Columbia Union Conference Education Code and that she "believed" that another employee "expressed" to her that the other employee was also denied unemployment compensation. Almost immediately, however, Howard admitted that she did not know whether the other employee had actually applied for compensation. (Deposition of Paula Howard at 51-53, Appendix to Doc. # 28.) Even if the denial of unemployment compensation could be considered evidence of race or sex discrimination in the context of this case, defendants had little to do with it. True, they opposed plaintiff's claim, but it was as a result of a decision by the Office of Employment Security, affirmed by a Referee after a hearing, that the claim was denied. (See, Exh. 10 to Doc. # 28).
In all other respects, when asked about specific allegations of the complaint, plaintiff could only reiterate that she was not given a job description while other employees were. She had no information about the pervasive practices alleged in the complaint, nor did she produce any other evidence thereof in response to defendants' motions. Plaintiff attempted to compare herself to the only white employee at Pine Forge Academy while she was employed there, but she could specify only two instances of different treatment: a suggestion by Cheatham that Howard not wear her wedding ring; and reimbursement of mileage to the white employee, an Hispanic woman who taught Spanish part-time at the Academy. Howard admits, however, that she continued to wear her wedding ring as did the Spanish teacher and at least one other employee. The other employee was necessarily black, since, as noted, there was only one white employee at the Academy during the time when plaintiff alleges that the discrimination against her took place. Moreover, the suggestion regarding the wedding band had a religious rather than a racial or sexual basis according to the unchallenged statement of the defendants. (See, Affidavit of Meade C. Van Putten, Appendix to Doc. # 28). Finally, there can be no inference of race or sex discrimination drawn from the payment of mileage to one female employee who is not black when the black female employee complaining of the practice lived on the Academy campus in housing provided by the Academy and thus incurred no transportation costs.
Finally, assuming that the few instances of different treatment identified by plaintiff are discriminatory, plaintiff made no attempt to demonstrate that they were in any way related to her firing.
Although we have concluded that plaintiff has failed to support at all the allegations of Count I, entitling all defendants to summary judgment, there is technically no claim made in Count I. Rather, plaintiff alleges, in Count II, that the allegations made in Count I violate 42 U.S.C. §§ 1981, 1983, 1985(1)-(3) and 1986.
There are several problems inherent in these theories of liability which the Court will address separately for each section of the statutes cited.
With respect to § 1981, it is true that private employment discrimination is within the purview of this statute. Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971). The only cognizable claims under the statute, however, are those of discrimination on the basis of race or alienage. Holton v. Crozer-Chester Medical Center, 419 F. Supp. 334 (E.D. Pa. 1976). Here, we have already determined that plaintiff has failed to adduce any evidence ...