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SEENEY v. KAVITSKI

October 12, 1994

VIRGINIA SEENEY, Plaintiff,
v.
TOM KAVITSKI, et al., Defendants.



The opinion of the court was delivered by: JAMES MCGIRR KELLY

 J.M. KELLY, J.

 OCTOBER 12, 1994

 Presently before the court is the Motion of Defendants Commonwealth of Pennsylvania, the Office of Administration, Bureau of Affirmative Action and Contract Compliance, the Department of Public Welfare and the Honorable Joseph L. Zazyczny (collectively, the "Commonwealth defendants") to dismiss the Plaintiff Virginia Seeney's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

 BACKGROUND

 Plaintiff Virginia Seeney ("plaintiff") is a black woman and a former employee of Community Action Agency of Delaware County, Inc. ("Community Action"). Community Action is a contractor for the Commonwealth of Pennsylvania, specifically the Department of Welfare. The contract between the Commonwealth and Community Action provides that the latter shall not discriminate against any employee on the basis of race.

 In her complaint, plaintiff alleges that Community Action employees demoted, and then fired her because of her race. After her termination, plaintiff filed a race discrimination claim with the Bureau of Affirmative Action and Contract Compliance ("BAACC"). The BAACC investigates racial discrimination charges pursuant to Pennsylvania Executive Order 1988-1 and Management Directive 410.10. These regulations require the BAACC to investigate the claim, and recommended sanctions against state contractors if they are guilty of discrimination.

 In this matter, the BAACC found probable cause of race discrimination. It recommended numerous sanctions against Community Action, including reinstatement of plaintiff with back pay. Despite this determination, the Commonwealth did not take any adverse action against Community Action. In fact, the Commonwealth and its agencies continued to fund and contract with Community Action. Seeney claims that the Commonwealth defendants and Community Action employees met secretly to quash the findings of the investigation, and that this collusive meeting led to the early termination of her grievance claim.

 Count I alleges that plaintiff is a third party beneficiary of the contract between the Commonwealth and Community Action. Plaintiff claims that she, a former employee, was the intended beneficiary of the contract's non-discrimination provision. She maintains the Commonwealth breached the contract when it permitted Community Action to discriminate against her.

 Count VI asserts that all of the defendants, including the Commonwealth defendants, conspired to deprive Seeney of her constitutional right to due process in violation of 42 U.S.C. § 1985. Count VII claims that the Commonwealth defendants violated 42 U.S.C. §§ 1981 and 1983 because they knowingly funded Community Action even though it "discriminated against blacks in violation of law and contract". Amend. Comp. P 87.

 Count X states that the Commonwealth's Management Directive 410.10 and Executive Order 1988-1 violate 42 U.S.C. §§ 1981 and 1983, because the investigation process is "arbitrary and capricious". Count XI avers that the Commonwealth defendants violated plaintiff's Fourteenth Amendment rights to substantive and procedural due process. Count XIII alleges negligent infliction of emotional distress by all of the defendants.

 Plaintiff seeks both monetary damages and injunctive relief against the ...


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