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December 20, 1993

MICHAEL A. RADESCHI, in his own right and as representative of all other persons in the same class or similarly situated, Plaintiff,

The opinion of the court was delivered by: DONALD J. LEE

 Before this Court are defendants' Motion to Dismiss plaintiff's class action alleging age discrimination (Document No. 2) and their Supplemental Motion to Dismiss (Document No. 7). For the following reasons, the defendants' Supplemental Motion to Dismiss will be granted and the case will be remanded to state court.


 Plaintiff, Michael A. Radeschi, brings this class action against the Commonwealth of Pennsylvania and its Department of Labor and Industry alleging willful violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951 et seq., arising from the use by the Department's Bureau of Employment Security and Job Training ("BES") of a battery of tests called the General Aptitude Test Battery/Validity Generalization (the "Aptitude Tests"). Plaintiff's complaint sets forth the following.

 In 1990, plaintiff, at age 47, sought employment as a private security guard with Security Bureau, Inc., which informed him it was hiring only through the BES. Plaintiff then sought referral from BES, which required him to take the so-called "Family 5" subtests of the Aptitude Tests in order to determine his suitability for such employment. Based upon his Family 5 test results, the BES refused to refer plaintiff for employment as a security guard. Plaintiff contends that the Family 5/Aptitude Tests have a disparate impact on older job applicants who are protected against discriminatory treatment on the basis of age by both the ADEA and the PHRA.

 On April 17, 1990, plaintiff filed a charge of willful age discrimination with the Equal Employment Opportunity Commission ("EEOC"), claiming loss of income and economic benefits. The EEOC investigated and reviewed the case and, on February 26, 1992, determined there were probable ADEA violations, finding that use of the Family 5/Aptitude Tests "results in an adverse impact against persons who are 40 years of age or older and that this impact becomes more significant as the age of the affected population increases." Letter determination from EEOC area director, Complaint, Exhibit A, at 2. The EEOC then initiated conciliation. (As of defendants' filing their Motion to Dismiss with this court, conciliation was in progress. Defendants' Motion to Dismiss, P 4.)

 Defendants filed a Notice of Removal on June 2, 1992, and removed the action to the District Court for the Western District of Pennsylvania, pursuant to the removal statutes, 28 U.S.C. §§ 1441-1451. Shortly thereafter, defendants filed their initial Motion to Dismiss (on June 10, 1992), alleging four grounds for early dismissal: (1) Plaintiff has failed to state a claim, specifically for willfulness, upon which relief can be granted, pursuant to F.R.CIV.P. 12(b)(6); (2) Plaintiff has failed to state a claim, specifically the class action claim under the ADEA, upon which relief can be granted; (3) the cause of action under the ADEA is barred by the statute of limitations; (4) an exhaustion of remedies argument that an ADEA claim cannot be brought while conciliation procedures are in progress.

 In their Supplemental Motion to Dismiss, filed more than one year later, on July 1, 1993, defendants raise, for the first time, the Eleventh Amendment to the Constitution of the United States as a bar to further prosecution of plaintiff's claims. This Supplemental Motion purports to have been filed "pursuant to Fed. R. Civ. Proc. 12(b), (2), and (6)," and requests this court dismiss the complaint in its entirety "with prejudice." In defendants' view, the Eleventh Amendment confers "constitutional immunity" upon states and their agencies from suit in both state and federal courts. Defendants' Brief in Support of Supplemental Motion to Dismiss, at 2.

 For the reasons to follow, this court holds that the Eleventh Amendment bars it from adjudicating plaintiff's claims against the Commonwealth of Pennsylvania and its Department of Labor and Industry; however, the Eleventh Amendment does not, as defendants contend, confer upon them "constitutional immunity" from all suit but, rather, operates as a jurisdictional bar only to the federal judiciary which is prohibited from exercising the "Judicial power of the United States" *fn1" to hear plaintiff's claims. Because the court is deprived of jurisdiction to adjudicate these claims, the proper course is not to dismiss with prejudice on the merits as defendants contend, but to remand to the state court as required by 28 U.S.C. § 1447(c).


 Although defendants bring their Eleventh Amendment objections by way of a motion to dismiss under F.R.CIV.P. 12(b)(6) for failure to state a claim upon which relief can be granted and under F.R.CIV.P. 12(b)(2) for "lack of jurisdiction over the person", the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction to entertain suits against the states. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)(Eleventh Amendment "deprives federal courts of any jurisdiction to entertain" suits against the states); Brierly v. Pennsylvania Dep't of Transp., 1992 U.S. Dist. LEXIS 19645 (E.D. Pa. 1992); and Faust v. Pennsylvania Dep't of Revenue, 1989 U.S. Dist. LEXIS 15361 (E.D. Pa. 1989). Accordingly, the court will treat the supplemental motion as one to dismiss under F.R.CIV.P. 12(b)(1) for "lack of subject matter" jurisdiction, and will apply the analysis appropriate for such motion.

A district court can grant a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction based on the legal insufficiency of the claim. But dismissal is proper only when the claim "appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946). See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974)(claim must be "so insubstantial, ...

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