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JOHNSON v. RESOURCES FOR HUMAN DEV.

February 8, 1994

NORMAN L. JOHNSON, Ph.D.
v.
RESOURCES FOR HUMAN DEVELOPMENT, INC., HARVEY SCHWARTZ and VICKI HAYES



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 This civil matter has been brought before the Court by motion of the defendants, Resources for Human Development, Inc. ("RHD"), Harvey Schwartz and Vicki Hayes to dismiss the constitutional claims raised in Count I and the pendent state law claim raised in Count II of plaintiff's complaint. For the reasons which follow, the motion shall be granted.

 I. HISTORY OF THE CASE

 According to the averments set forth in the plaintiff's complaint, this case arose on June 15, 1993 when he was terminated from his position as a licensed clinical psychologist with the defendant RHD on the basis of his race. The plaintiff, who is black, further alleges that he was replaced by a less experienced and less qualified white person and that throughout the course of his employment with RHD, he and other black employees were repeatedly subjected to harassment and humiliation at the hands of less qualified and less experienced whites including the defendants. Dr. Johnson also asserts that black employees were treated differently at RHD than white employees with respect to work assignments, consideration for promotion and access to facilities and support services. All of these actions, plaintiff complains, violated the 1st, 5th, 13th and 14th amendments to the United States Constitution "pursuant to 42 U.S.C. § 1981." In Count II of his complaint, plaintiff endeavors to state a common law claim for wrongful discharge on the grounds that the defendants' acts of discharging him were in violation of public policy insofar as they were premised not only upon race, but also upon his alleged reports to RHD management and government officials about RHD's purported violations of various laws, regulations and public grant requirements.

 II. DISCUSSION

 A. STANDARDS APPLICABLE TO RULE 12(b)(6) MOTIONS TO DISMISS

 Under the simplified and flexible pleading requirements in the Federal Rules of Civil Procedure, a complaint must provide a defendant with fair notice of what the plaintiff's claim is and the grounds upon which it rests. Williams v. New Castle County, 970 F.2d 1260, 1265-1266 (3rd Cir. 1992) citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957). In considering a motion to dismiss under Rule 12(b)(6), the complaints' allegations are to be construed favorably to the pleader and a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id. ; Rogers v. Mount Union Borough By Zook, 816 F. Supp. 308, 312 (M.D.Pa. 1993); Flohr v. Pennsylvania Power & Light Co., 800 F. Supp. 1252, 1254 (E.D.Pa. 1992). Thus, to survive a motion to dismiss, the pleading need not correctly categorize legal theories giving rise to the claims and the court is under a duty to examine the pleadings to determine if the allegations provide for relief under any theory. Advanced Power Systems, Inc. v. Hi-Tech Systems, Inc., 801 F. Supp. 1450, 1460 (E.D.Pa. 1992).

 B. PLAINTIFF'S CLAIMS UNDER THE 1ST, 5TH, 13TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION

 In reviewing the language of the foregoing, we note at the outset that nowhere in plaintiff's complaint are there any allegations that could operate to state a claim upon which relief could be granted under either of these amendments. Indeed, the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

 In like fashion, the Fifth Amendment states:

 
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war of public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation."

 The Thirteenth Amendment, in turn, prohibits the condition of slavery by virtue of the following language:

 
"Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

 "Section 2. Congress shall have power to enforce this article by ...


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