Accordingly, the court concludes that labor organizations may be held
liable for monetary damages under the ADEA. The unions motion to dismiss
will be denied.
IV. § 1981 Claim and Constitutional Claims
As noted above, the complaint 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. (Doc. 23 ¶¶
52-63.) With the exception of his Fourteenth Amendment claim against the
city, all of these allegations fail to state a claim upon which relief
can be granted. In the first place, Tyrrell's § 1981 claim fails
because only claims of discrimination based on race or ethnicity are
cognizable under § 1981. Sherlock Montefiore Medical Center,
84 F.3d 522, 527 (2d Cir. 1996); Von Zuckerstein v. Argonne
Nat'l Laboratory, 984 F.2d 1467, 1472 (7th Cir.
1993). Further, the First and Fourth Amendment claims must be
dismissed because Tyrrell has failed to allege facts constituting an
abridgement of a First Amendment right or an unreasonable search or
seizure. The Fifth Amendment claim must be dismissed because the only
clause in that amendment which could possibly apply to the facts alleged
in the complaint is the Due Process Clause, and that provision applies
only against the federal government. Morin v. Caire, 77 F.3d 116, 120
(5th Cir. 1996).
With regard to the Fourteenth Amendment, Tyrrell has stated no claim
under the Equal Protection Clause, as age-based classifications are not
suspect. Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 2406,
115 L.Ed.2d 410 (1991). Further, because Tyrrell has not indicated what
process he was denied that HACC could have provided, he has not stated a
due process claim against HACC. Likewise, Tyrrell has not stated a due
process claim against the union, since he has not alleged facts indicating
that the union was acting under color of state law or otherwise was
draped in the authority of the state when it allegedly refused to file a
grievance on Tyrrell's behalf. See Jackson v. Temple University,
721 F.2d 931, 933 (3d Cir. 1983) (no state action where union refused to
pursue the plaintiffs grievance to arbitration). On the other hand,
reading the complaint liberally, Tyrrell has succeeded in stating a due
process claim against the city for failure to afford him the
pre-termination trial that state law guarantees to all regularly appointed
firefighters. 53 P.S. § 30471. See Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) ("Property
interests . . . are created and their dimensions are defined from an
independent source such as state law. . . ."). In light of the above, all
of Tyrrell's § 1983 claims will be dismissed with the exception of
his due process claim against the city.*fn10
V. Claims Under 42 U.S.C. § 1985 (3) and § 1986
42 U.S.C. § 1985 (3) prohibits conspiracies by two or more persons
to deprive another person of his civil rights. Just as § 1983, §
1985(3) is an enforcement provision applicable only where the plaintiff
succeeds in establishing an independent violation of federal law.
Therefore, in light of the discussion in part IV above, Tyrrell's §
1985(3) claim can only be founded on a violation of his Fourteenth
Amendment due process rights.
A § 1985(3) plaintiff must allege specific facts showing
invidious, purposeful and intentional discrimination. The Third Circuit
has upheld dismissal of a § 1985(3) claim where the conspiracy
allegations were unsupported by specific facts:
With near unanimity, the courts have rejected
complaints containing mere conclusory allegations of
deprivations of constitutional rights protected under
§ 1985(3). A conspiracy claim based upon §
1985(3) requires a clear showing of invidious,
purposeful and intentional discrimination between
classes or individuals.
Robinson v. McCorkle, 462 F.2d 111, 112 (3d Cir. 1972) (citations and
internal quotes omitted. in the present case, Tyrrell has failed to
alleged specific facts that, if proved, would establish that the city of
Scranton engaged in an intentional, invidious conspiracy with a third
party to deprive him of his employment without the trial mandated by state
law. Accordingly, he has not succeeded in stating a valid claim under
§ 1986 prohibits neglecting or refusing to thwart a § 1985(3)
conspiracy when it is within one's power to do so. Because a § 1986
claim depends on the existence of a § 1985(3) conspiracy, Tyrrell's
failure to allege facts indicating that such a conspiracy existed
requires that his § 1986 claim also be dismissed for failure to state
a claim upon which relief can be granted.
Although a great many of Tyrrell's claims will be dismissed today
pursuant to Federal Rule of Civil Procedure 12(b)(6), many will remain,
and a brief summary of the surviving claims may be helpful. Count I
remains an ADEA claim against the city and its officers. Count II will
contain an ADEA claim and a PHRA claim against the firefighters' union.
Count III will contain a PHRA claim against HACC and Nelson. Count IV
remains a PHRA claim against the city. Count V will contain a § 1983
claim against the city for denial of due process, as well as an
accompanying § 1988 claim for attorney's fees. Finally, no claim will
remain under Count VI.*fn11
An appropriate order will follow.
NOW, this 2nd day of March, 2001 IT IS HEREBY ORDERED that:
1. The motion to dismiss of Defendants HACC and Nelson
(Doc.26) is GRANTED with regard to:
a) the claim in Count III for violation of the
PFEOA, 24 P.S. § 5002;
b) the claim in Count III for violation of
22 Pa.Code § 32;
c) the claim in Count III for violation of the
d) all claims against all defendants in Counts V and
VI (i.e., the claims under 42 U.S.C. § 1983,
1985, 1986 and 1988), with the exception of the
§ 1983 and § 1988 due process claims
against Defendants Connors, Applegate, Osborne
and the city of Scranton;
2. The motion to dismiss of Defendants HACC and Nelson
(Doc. 26) is DENIED with regard to the claim in
Count III for violation of the PHRA;
3. The motion for a more definite statement of
Defendants HACC and Nelson (Doc. 26) is DENIED;
4. The motion to dismiss of Defendant Fire Fighters
Local Union No. 669 (Doc. 27) is DENIED.
5. All reference in the complaint to Defendants'
alleged sex or disability discrimination shall be
STRICKEN pursuant to Fed.R.Civ.P. 12(f).
*fn2 The motions are titled, respectively, "Motion of Defendant
Harrisburg Area Community College and Defendant Kevin B. Nelson for
Partial Dismissal of Plaintiff's Amended Complaint Under Fed.R.Civ.P. 12
(b)(1) & (6) and for a More Definite Statement Under Fed. R.Civ.P. 12
(e)" (Doc. 26); and "Defendant, Fire Fighters Local Union No. 60's Motion
to Dismiss Amended Complaint" (Doc. 27).
*fn3 As Plaintiff has not alleged facts indicating that he has standing
to assert gender or disability discrimination claims, and since he has
expressly characterized this action as one to remedy age discrimination
(Doc. 23 ¶ 1), this court will exercise its discretion pursuant to
Rule 12(f) to order stricken from the amended complaint all reference to
Defendants alleged discrimination on the basis of sex or disability. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992); Anjelino v. The New York Times Company, 200 F.3d 73 (3d Cir.
*fn4 HACC contends that the PHRA claim against it must be dismissed
since, once this court has dismissed the federal claims against t, the
accompanying state claim should be dismissed for lack of supplemental
jurisdiction. (Brief, Doc. 39 at 9.) However, as Tyrrell still has
federal claims against the city and the union which share a common
nucleus of operative fact with his state claim against HACC, this court
has "pendent party" jurisdiction over the state claim. See Borough of
West Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir. 1995) ("Section
1367(a)'s grant of `supplemental' jurisdiction was intended to broaden the
preexisting scope of what had previously been termed `pendent'
jurisdiction to include claims involving the addition of parties.").
Generally, a federal court must exercise jurisdiction over claims which
share a common nucleus of operative fact with a claim over which it has
jurisdiction, unless one of the factors enumerated in § 1367(c) is
present. Id. As HACC has not identified a § 1367(c) factor applicable
to Tyrrell's claim against it, this court will not exercise its
discretion to decline jurisdiction.
*fn5 It is assumed for purposes of HACC's motion to dismiss that HACC
receives federal financial assistance.
*fn6 Perhaps the ADA, unlike the ADEA, allows for "aiding and abetting"
liability. Under such a theory, Tyrrell would not need to prove that HACC
engaged in an invidious conspiracy with the city, but only that it
knowingly facilitated or assisted the city's discrimination against older
applicants for firefighter positions. However, in light of this court's
holding that the ADA does not cover employment practices, there is no
need to reach the "aiding and abeting" issue.
*fn7 HACC has also raised a sovereign immunity defense to Tyrrell's
claims against it. However only the PHRA claim against HACC will survive
the instant motion to dismiss, and the PHRA represents a waiver of
sovereign immunity by the Commonwealth. See Mansfield State College v.
Kovich, 46 Pa.Cmwlth. 399, 407 A.2d 1387 (Pa.Cmwlth. 1979) (PHRA
employment discrimination suit against state college not barred by
sovereign immunity because "the legislature obviously meant to allow an
aggrieved public employee to bring an action against his or her
employer, the Commonwealth, for it included the Commonwealth under the
term `employer' in Section 4 of the Act, 43 P.S. s 954"); City of
Philadelphia v. Pennsylvania Human Relations Comm'n, 684 A.2d 204, 208
(Pa.Cmwlth.1996) (reafirming Kovich).
*fn8 The Supreme Court raised but declined to reach this issue in Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 119 n. 14, 105 S.Ct.
613, 620, 83 L.Ed.2d 523 (1985). Other courts which have addressed the
issue have split on its resolution. See Air Line Pilots Ass'n,
International v. Trans World Airlines, 713 F.2d 940, 957 (2d Cir. 1983)
(union cannot be liable for monetary damages); Nicolaisen v. Chicago and
Northwestern Transportation Co., 1991 WL 237619 (D.Kan.) (same); Neuman
v. Northwest Airlines, Inc., 1982 WL 313 (N.D.Ill.) (same); EEOC v. Local
350, Plumbers and Pipefitters, 842 F. Supp. 417 (D.Nev. 1994) (union may
be liable for monetary damages); Boicru v. Cuyahoga County Library
Union, 1988 WL 106953 (N.D.Ohio) (same); U.S. EEOC v. Air Line Pilots
Association, Int'l, 489 F. Supp. 1003, 1009 (D.Minn. 1980) (same). A
number of other courts, while not specifically holding that a union may
be liable for damages under the ADEA. have allowed such suits to proceed
to trial. See, e.g., EEOC v. Local 350, Plumbers and Pipefitters,
998 F.2d 641 (9th Cir. 1992).
*fn9 29 U.S.C. § 623 (c) states:
It shall be unlawful for a labor organization —
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual
because of his age;
(2) to limit, segregate, or classify its membership,
or to classify or fail or refuse to refer for
employment any individual, in any way which would
deprive or tend to deprive any individual of
employment opportunities, or would limit such
employment opportunities, or would limit such
employment opportunities or otherwise adversely affect
his status as an employee or as an applicant for
employment, because of such individual's age;
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of