Based upon these findings, this court finds in favor of Defendants Control Data, Guinan, Woods, and Layer on Count III.
Count IV. Violation of 42 U.S.C. § 1983
Actions may be brought pursuant to 42 U.S.C. § 1983 against state actors who violate individuals civil rights as protected by the fourteenth amendment. To have a viable claim under § 1983, the plaintiff must assert that the defendant is either one acting under color of state law (a state actor) or is a private citizen whose activity has a close enough nexus to the state to satisfy the state action requirement. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).
In this case, there has been no showing that the defendants were either state actors or were engaged in activity so closely intertwined with the state to be a state actor for this purpose. In fact, the defendants in this case are a private company and employees of that company who have no association or special relationship with the state.
Based upon these findings, this court finds in favor of Defendants Control Data, Guinan, Woods, and Layer on Count IV.
Count V. Violation of 42 U.S.C. § 1985
Actions may be brought through 42 U.S.C. § 1985 (3) against private citizens who conspire to violate an individual's civil rights based upon the thirteenth amendment. To establish a § 1985(3) violation, a complaint must allege four elements: (1) a conspiracy; (2) "for the purpose of depriving, directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws"; (3) that the conspirators committed some act in furtherance of the conspiracy; and (4) that the plaintiff was either "injured in his person or property" or was "deprived or having and exercising any right or privilege of a citizen of the United States." Griffin v. Breckenridge, 403 U.S. 88, 103-04, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1172-73 (3d Cir. 1978).
To establish a conspiracy, a pleading under § 1985(3) requires at least minimum factual support of the existence of a conspiracy. Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972), cert. denied 409 U.S. 1042, 34 L. Ed. 2d 492, 93 S. Ct. 529 (1972); Shah v. MetPath Corp., 470 F.Supp. 158, 161 (E.D.Pa. 1979).
In this case, Flagg has made no allegation of a conspiracy that is supported by any facts nor has Flagg alleged any acts that were made in furtherance of the alleged conspiracy. Flagg's claim fails and this court must rule in favor of Defendants Control Data, Guinan, Woods, and Layer on Count V.
Count VI. Violation of 29 U.S.C. § 185
Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, provides for suits in district courts between labor organizations and employers. However, "section 301 contemplates suits by and against individual employees as well as between unions and employers; and . . . § 301 suits encompass those seeking to vindicate 'uniquely personal' rights of employees such as wages, hours, overtime pay, and wrongful discharge." Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1975) (citations omitted). Furthermore, "to prevail against either the company or the Union, [employees] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union." Id. at 570-71.
In this case, while Flagg has a right as an employee to sue to vindicate his discharge, he has failed to show that his union breached its duty of fair representation. Without this demonstration, Flagg has not meet his burden of proof. Based upon this finding, this court finds in favor of Defendants Control Data, Guinan, Woods, and Layer on Count VI.
Count VII. Violation of first amendment
For a plaintiff to assert a violation of his first amendment rights, plaintiff must establish that his rights of expression were infringed by a state action. See Wooley v. Maynard, 430 U.S. 705, 714, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977) (finding rights granted under the first amendment against state action include the right to speak and to refrain from speaking); Cable Investments, Inc. v. Woolley, 867 F.2d 151, 162 (3d Cir. 1989) (finding first amendment claim failed because plaintiff failed to allege the requisite state action).
In this case, Flagg failed to meet his burden of proving state action existed. Therefore, this court must find in favor of Defendants Control Data, Guinan, Woods, and Layer on Count VII.
Count VIII. Violation of Civil Rights Act of 1991
The Civil Rights Act of 1991 became effective as of November 21, 1991. While the Act added new laws, its main impact was to amend the existing civil rights statutes. In this case, Plaintiff has asserted that the 1991 Act should be retroactively applied to his case. Since the alleged discriminatory action took place here December 15, 1991, however, these actions come squarely within the new act and there is no need to inquire as to the 1991 Act's retroactivity. The impact of this Act on this case, though, is through the amendments to 42 U.S.C. § 1981; since none of the new laws affect this race discrimination action. The impact of these amendments were been discussed above in Count III. As the impact of the 1991 Act was considered where relevant and as the 1991 Act does not grant any additional rights to the plaintiff under these facts, this court finds in favor of Defendants Control Data, Guinan, Woods, and Layer on Count VIII.
BY THE COURT:
MARVIN KATZ, J.