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March 2, 2001


The opinion of the court was delivered by: Caputo, District Judge.


Plaintiff Paul Tyrrell brought the present age discrimination action on April 21, 2000 alleging that he was unlawfully removed from his position as a firefighter for the city of Scranton, Pennsylvania. (Amended Complaint, Doc. 23.) The seven defendants fall into three classes for purposes of this court's analysis: 1) the city of Scranton and its officers ("the city"); 2) the firefighters' union ("the union"); and 3) the Harrisburg Area Community College and its officer ("HACC"). In separate motions, HACC and the union have moved for the dismissal of some or all of Tyrrell's claims for failure to state a claim upon which relief can be granted.*fn2 HACC has also requested that Tyrrell be required to make a more definite statement of his claims against it. (Doc. 26.) For the reasons set forth below, HACC's motion to dismiss will be granted in part and denied in part; its motion for a more definite statement will be denied; and the union's motion to dismiss will be denied.


Plaintiff Tyrrell was hired by the City of Scranton Fire Department in January of 1997. (Doc. 23 ¶ 12.) Pursuant to the collective bargaining agreement between the city and the firefighters' union, all newly hired firefighters were required to complete the Harrisburg Area Community College Fire Academy. (Id. ¶ 17.) After Tyrrell was unable to complete the Academy due to an injury, the city terminated him on May 13, 1997. (Id. ¶¶ 18-19.) Tyrrell then filed a grievance with the union which resulted in the union brokering his reinstatement, subject to his successful completion of the Fire Academy. (Id. ¶¶ 20-23.) However, as Tyrrell was unable to satisfy the physical training requirements of the Academy, the city once again terminated his employment on May 12, 1998. (Id. ¶¶ 24-26, 32.) According to Tyrrell, the union refused to intervene on his behalf a second time. (Id. ¶ 34.)

Tyrrell alleges that Defendants seek to exclude otherwise qualified older persons from city firefighter positions by subjecting applicants to rigorous physical requirements that are not bona fide occupational qualifications. (Id. ¶¶ 23, 27-31.)*fn3 Tyrrell was born on August 23, 1955, making him forty-one years of at the of his first termination and forty-two years of age at the time of his second termination. (Id. ¶ 11.) To buttress his claim that the physical requirements imposed by the city are not bona fide occupational qualifications. Tyrrell avers that the city currently employs a number of firefighters over the age of forty who could no longer meet the physical demands of the Fire Academy. (Id. ¶ 26.)

The amended complaint asserts a myriad of claims under six different counts. Count I is an age discrimination claim against the city under the federal Age Discrimination in Employment Act (ADEA). (Id. ¶¶ 36-39.) Count II contains age discrimination claims against the union under the ADEA and the Pennsylvania Human Relations Act (PHRA). (Id. ¶¶ 40-43.) Count III contains age discrimination claims against HACC under the ADEA and PHRA, as well as under the federal Age Discrimination Act of 1975, the Pennsylvania Fair Educational Opportunities Act, and § 32 of Title 22 of the Pennsylvania Administrative Code. (Id. ¶¶ 44-47.) Count IV is a PHRA age discrimination claim against the city. (Id. ¶¶ 48-51.) Though Counts V and VI are somewhat redundant, it appears that Count V alleges violations of 42 U.S.C. § 1983 on the part of each defendant based on predicate violations of 42 U.S.C § 1981 and the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 52-63.) Count VI asserts that Defendants violated 42 U.S.C. ¶¶ 1985(3) and 1986 by conspiring to commit or failing to prevent the commission of the predicate civil rights violations mentioned in Count V. (Id. ¶¶ 64-66.) Counts V and VI also include claims for attorneys' fees under 42 U.S.C. § 1988. The pending motions argue that many of these claims must be dismissed for failure to state a claim upon which relief can be granted.


Dismissal under Federal Rule of Evidence 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotel, Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)). See also Hefferman v. Hunter, 189 F.3d 405, 408 (3d Cir. 1999). Even before this court turns to the principal claims in Tyrrell's complaint, it is apparent that two of his claims against HACC will not satisfy this standard.

Although Tyrrell has invoked the Pennsylvania Fair Educational Opportunities Act (PFEOA), the scope of that statute does not encompass age discrimination. The PFEOA prohibits discrimination in educational opportunity on the basis of "race. religion, color, ancestry, national origin, sex, handicap or disability." 24 P.S. § 5002(a)-(c). As the PFEOA makes no mention of age, Tyrrell's PFEOA claim of age discrimination will be dismissed.

Tyrrell also invokes § 32 of Title 22 of the Pennsylvania Administrative Code to support a claim of age discrimination against HACC. However, as HACC notes. there exists no private right of action to enforce § 32. § 32.6, the provision by which the educational equality regulations of § 32 are enforced, provides only that the Pennsylvania Department of Education shall take certain steps to secure the compliance of covered institutions, such as conciliation, mediation, persuasion and sanctions. 22 Pa.Code § 32.6. Because § 32 clearly contemplates only administrative enforcement of its institutional regulations, Tyrrell may not bring a private action to enforce its provisions. Accordingly, this claim will also be dismissed.

I. ADEA and PHRA Claims Against HACC

The ADEA makes it "unlawful for an employer . . . to fail to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). Likewise, the PHRA prohibits employment discrimination on the basis of enumerated personal characteristics, including age. 43 P.S. § 954(a). Because Title VII, the ADEA and the PHRA have similar purposes and contain parallel provisions, courts use judicial interpretations of Title VII to interpret the ADEA, and in turn use interpretations of both federal statutes in interpreting the PHRA. See Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996) ("While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA, . . . its courts generally interpret the PHRA in accord with its federal counterparts."); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752 n. 3 (3d Cir. 1983) (Title VII and the ADEA are construed similarly); Hull v. Rose, Schmidt, Hasley, & DiSalle, P.C., 700 A.2d 996, 1000 (Pa.Super. 1997) (state courts interpreting PHRA look to federal interpretations of Title VII); Gottlieb v. Ladd Furniture, Inc., 1992 WL 174617, *5 (E.D.Pa.) (Title VII, the ADEA and the PHRA are given parallel constructions).

HACC argues that the ADEA does not furnish Tyrrell with a cause of action against it because Tyrrell was a student attending HACC, not an employee of HACC. (Brief of Defendants HACC and Kevin B. Nelson in Support of Their Motion, Doc. 39 at 8.) The Third Circuit has made statements concerning the ADEA which support this position:

In addition to its language, the legislative history of this statute evinces the clear legislative intent to prohibit age discrimination by employers against employees and applicants for employment. Therefore, if [the plaintiffs] were not [the defendant's] employees, ADEA is not applicable to their cause. . ..

This issue is also unsettled in the parallel Title VII context. In a leading case. the District of Columbia Circuit held that any employer possessing control over the plaintiffs access to employment with a third party may be liable under Title VII:

[It would appear that Congress has determined to prohibit [an employer] from exerting any power it may have to tore — close, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer. While it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited.

Sibley Memorial Hospital v. Wilson, 488 F.2d 1338. 1341 (D.C.Cir. 1973). Sibley involved a nurse who was paid directly by his patients but whose conduct and ability to secure clients were under the control of the defendant hospital. Id. A number of courts have followed Sibley, finding Title VII applicable wherever a defendant employer has control over the plaintiff s access to employment, even where the plaintiff is not employed by the defendant, but by a third party. See, e.g., Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291, 294 (11th Cir. 1988) (endorsing Sibley); Hudson v. Radnor Valley Country Club, 1996 WL 172054, *4 (E.D.Pa.) ("A Title VII plaintiff may sue a defendant with whom he had no actual or prospective employment relationship if that defendant controlled the plaintiffs access to employment and then foreclosed that employment by unlawfully discriminating against the plaintiff.") However, it does not appear that the Third Circuit has adopted Sibley's expansive construction of the term "employer."

In United States v. Bd. of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882, 891 (3d Cir. 1990), the Third Circuit held that the Commonwealth of Pennsylvania was not an "employer" of public school teachers — and hence was not subject to the structures of Title VII — since its control over the teachers' employment was exercised in its regulatory capacity "rather than in the course of' a customary employer-employee relationship." At the very least, the court recognized an exception to Sibley liability for the state acting in its regulatory capacity. See also George v. New Jersey Bd. of Veterinary Medical Examiners, 635 F. Supp. 953, 954-55 (D.N.J. 1985) (recognizing same exception); National Organization for Women v. Waterfront Comm'n of New York, 468 F. Supp. 317, 320 (S.D.N.Y. 1979) (same). But the court also endorsed the district court's determination that the Commonwealth could not be liable under Title VII because "the Commonwealth was not [the plaintiffs] employer' within the meaning of Title VII." Sch. Dist. of Philadelphia, 911 F.2d at 891. This, combined with the court's use at the "customary employer-employee relationship" as the standard for determining whether the Commonwealth was the plaintiffs employer, indicates that a plaintiff in the Third Circuit must be employed by the defendant in order to state a claim under Title VII or the ADEA.

A critical Third Circuit decision subsequent to School District of Philadelphia is consistent with the conclusion that an employment discrimination plaintiff must share some sort of actual or potential employment relationship with the defendant. Anticipating the Supreme Court's 1997 Shell Oil decision, 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808, the Third Circuit held in 1994 that a former employee qualified as an "employee" for purposes of Title VII. Charlton v. Paramus Rd. of Educ., 25 F.3d 194 (3d Cir. 1994). The court's language indicates that its holding is limited to parties that previously were in an employment relationship: "[A]n employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act . . . and arises out of or is related to the employment relationship." Id., 25 F.3d at 200. Thus Chariton maintained the requirement that there be an employment relationship between the parties, and simply expanded the range of employment relationships protected from discrimination to include past relationships as well as present and prospective ones.

It is clear that federal employment discrimination liability cannot extend to all parties who intentionally and for invidious reasons adversely impact the employment or employment opportunities of a member of a protected class. Nevertheless, cases such as Sibley pose a difficult problem for the courts. In Sibley, the plaintiff nurse was not under the control of his technical employer, the patient, but that of the defendant hospital. In cases such as these, where the plaintiffs employer has entrusted a third party with the responsibility to screen and supervise its employees, Congress' clear purpose to prohibit invidious workplace discrimination requires that the third party also be subject to federal employment discrimination liability should it misuse the authority it has been delegated. Potential Title VII and ADEA liability should accompany the transfer of the employer's control and authority.

The Seventh Circuit has crafted a thoughtful middle position between broad liability for all employers who adversely affect a person's employment with a third party, and a strict employment relationship requirement that would immunize from liability the discrimination condemned in Sibley. In EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir. 1995), the court rejected the proposition that the ADEA applied to "employers" other than the employer of the plaintiff. EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir. 1995). The court argued that it makes little sense to assume that Congress extended liability only to persons who happen to be employers of third parties, rather than to all persons who improperly exercise control over a plaintiffs employment:

We think it very doubtful that laws which forbid employers to discriminate create a blanket liability to employees of other employers for interference with their employment relationships. It might be a good idea to impose liability on those who aid or abet violation of those laws, but what sense would it make to confine liability to persons or firms who happen to be employers? Since it would make little sense that we can see . . ., we find it implausible to impute to Congress an intention to create, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer.

Id. The court distinguished such "aiding and abetting" cases from cases such as Sibley, where the defendant, though not the plaintiffs employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiffs de facto or indirect employer. Id. In cases involving a de facto employer, the relationship of the parties should be regarded as an employment relationship and the provisions of the ADEA should apply to the de facto employer. Id. A de facto employment theory, the court noted, is a more limited and tenable theory than an "aiding and abetting" theory which would impose liability on any employer who adversely affects a plaintiffs employment with a third party. Id.

This court finds the reasoning of the Seventh Circuit both persuasive and consistent with the Third Circuit's position that the lack of an employment relationship between the plaintiff and the defendant will preclude liability under Title VII. See School District of Philadelphia, 911 F.2d at 891. it is also similar to the line drawn by the Ninth Circuit, which has subjected a defendant to the provisions of Title VII based on the degree of control it exerted over the hiring and supervision of the employer's employees. See Ass'n of Mexican-American Educators v. California, 231 F.3d 572, 582 (9th Cir. 2000). Therefore this court holds that, in order to state a claim under the ADEA, a plaintiff must allege an actual or de facto employment relationship — past, present or prospective — with the defendant.

In the present matter, Tyrrell has alleged only that he was a student at HACC. A community college does not have such control over a student's work life that it can be considered his de facto employer. See Mangram v. General Motors, 108 F.3d 61 (4th Cir. 1997) (distinguishing employees from students in a training program). Consequently, Tyrrell's ADEA claim against HACC must be dismissed for failure to state a claim upon which relief can be granted.

Tyrrell's PHRA claim is on firmer footing. As noted above, the PHRA is construed in light of the ADEA and Title VII. As a consequence, Tyrrell has no claim against HACC under 43 P.S. § 955(a), the provision of the PHRA that parallels the employer discrimination provision of the ADEA, 29 U.S.C. § 623 (a). However, in 43 P.S. § 955(e) the PHRA explicitly provides for the sort of general "aider and abettor" liability that, in the federal context, the Third Circuit rejected in School District of Philadelphia and the Seventh Circuit found doubtful in EEOC v. State of Illinois. Under § 955(e), a plaintiff need not share any sort of employment relationship with the defendant to establish a claim. See State Employes' Retirement Board v. Pennsylvania Human Relations Comm'n, 154 Pa.Cmwlth. 55, 622 A.2d 412, 416 n. 6 (Pa.Cmwlth. 1993) (under § 955(e) it is not necessary that the defendant be ...

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